Dunlap v. Henry

• Decision Date: 31 October 1882
• Parties: DUNLAP v. HENRY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 106

DUNLAP

v.HENRY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Bates Circuit Court.--HON. F. P. WRIGHT, Judge.

REVERSED.

The tax deed relied upon by defendant was acknowledged before a notary public.

T. J. Galloway and A. Henry for appellant.

Bassett & Lashbrook for respondent.

NORTON, J.

This is a suit in ejectment to recover the possession of land in Bates county. The petition is in the usual form. The answer, besides containing a general denial, sets up by way of defense, open, notorious, continuous, adverse possession for ten years before suit brought, and also that defendant had purchased the land for taxes, and that his tax deed had been recorded more than three years before the commencement of the suit. Plaintiff obtained judgment on the trial, from which defendant has appealed, and the errors assigned are that the court erred in admitting improper evidence and in giving improper and refusing proper instructions.

Plaintiff, in support of his title, read in evidence the certificate of the register of the land office showing that Joseph M. Beckner entered the land sued for in 1856, and also a patent issued in pursuance of said entry. In further support of his title he offered in evidence the following deeds: Deed from said Beckner and wife, acknowledged before Michael Bauer, a justice of the peace, in Franklin county, on the 16th day of August, 1857, conveying said land to Samuel Harp. Deed from Samuel Harp and wife, made in Miami county, Indiana, to William Yates, conveying the land in controversy; this deed was dated January 25th, 1859, and was acknowledged before a justice of the peace in Indiana. Deed from William Yates and wife, executed in Miami county, Indiana, on the 29th day of September, 1862, to Henry Webster, describing the land conveyed, according to the record before us, as being situate in Bates, Indiana; the notary public before whom this deed was acknowledged omits to state in his certificate that the grantors were personally known to him. Deed from Samuel Harp and wife, dated the 10th day of June, 1878, to Henry Webster, which purports to correct a certain deed from said Harp to Yates made on the 25th day of January, 1859. This deed is formal, conveys the land sued for, and was properly acknowledged and filed for record July 5th, 1878. Deed from Henry Webster, dated 19th day of January, 1878, proper in form and acknowledgment, conveying the land to plaintiff Dunlap, who instituted this suit on the 22nd day of February, 1878. All the above deeds were admitted in evidence over the objection of defendant, except the last two above mentioned, which were not objected to.

1. EJECTMENT.

We deem it unimportant for the purpose of this case to consider the objections made to the introduction of the above deeds in evidence, or to determine whether the objections were properly or improperly overruled, inasmuch as the court erred in instructing the jury “that the certificate of entry, patent and deeds read in evidence invested plaintiff with the legal title and the right to recover.” Conceding (without deciding the question) that the documentary evidence was properly received, we are of the opinion that it failed to show legal title in plaintiff to the land sued for at the time the suit was commenced.

The evidence shows that Beckner derived title from the government, and his deed...