Dunn v. Miller

• Decision Date: 23 March 1880
• Citation: 8 Mo.App. 467
• Parties: JOHN A. DUNN, Respondent, v. GEORGE C. MILLER ET AL., Apppellants.
• Court: Missouri Court of Appeals

8 Mo.App. 467

JOHN A. DUNN, Respondent,

v.GEORGE C. MILLER ET AL., Apppellants.

St. Louis Court of Appeals, Missouri.

Mar. 23, 1880.

1. Ejectment tries the possessory right only, not the title, and a judgment is not a bar, though the parties, titles, and defences are the same.

2. A certified copy of a deed, properly acknowledged, purporting to convey all

the rights acquired under a New Madrid certificate, afterwards located in the county where the deed was recorded, is properly admitted in evidence more than sixty years thereafter, in an action of ejectment for the land.

3. A certified copy from the general land-office of relinquishment of New Madrid land is competent as tending to show that the claimant then claimed in his own right.

4. Where the circumstances under which one holds, and has a long time held, possession of land are such as could not well occur without a grant, a deed will be presumed from him in whom the title was, and whose legal representatives have made no claim for more than sixty years.

5. A former recovery in ejectment does not terminate the presumption arising from a prior possession, such possession not being merely naked, and there being no acquiescence in the possession acquired by the former recovery.

6. A sheriff's deed, made under the act of 1825, which recited the execution, advertisement, purchase, and consideration, is not void for omitting to recite where the sale was made, and that it was made in term-time.

7. In a collateral proceeding, it is immaterial that a judgment only incidentally in question was irregular.

APPEAL from the St. Louis Circuit Court.

Affirmed.

D. T. JEWETT, for the appellants: The recovery in the former ejectment-suit settled, as between the parties, the right of possession and its consequences, and Dunn cannot recover in this action on any presumption of title arising from the fact of possession prior to the former judgment.-- Whitney v. Wright, 15 Wend. 179; Jackson v. Rightmyre, 16 Johns. 325; 2 Chitty's Bla. Comm., bk. 3, top p. 147; Arnold v. Arnold, 17 Pick. 4; Jackson v. Tuttle, 9 Cow. 234; Jackson v. Walker, 7 Cow. 642; Beebe v. Elliott, 4 Barb. 457; Marshall v. Shafter, 32 Cal. 196; Foster v. Evans, 51 Mo. 39; Clarkson v. Stanfield, 57 Mo. 573; Sturdy v. Jackman, 4 Wall. 174; Carpenter v. Schmidt, 26 Cal. 179; Stephens v. Hughes, 41 Pa. St. 383; Woodin v. Clemens, 32 Iowa, 280; Sherman v. Dilley, 3 Nev. 22. A certified copy, from the land-office, of a relinquishment not recorded in New Madrid, where the land lay, is not admissible.-- Gwynn v. Frazier, 33 Mo. 89; Muldrow v. Robinson, 58 Mo. 343; Hot Springs Case, 92 U. S. --; Joeckel v. Easton, 11 Mo. 126. The sheriff's deed was void, not containing the required recitals.-- Tanner v. Stine, 18 Mo. 580; Buchanan v. Tracy, 45 Mo. 441, 442; Bruck v. Leary, 55 Mo. 434; Merchants' Bank v. Evans, 51 Mo. 345. No copy of a deed could be used in evidence before the statute of 1825.-- Aubuchon v. Murphy, 22 Mo. 123. When the statute does not require an instrument to be recorded, a copy from the record is not admissible as evidence.-- Patterson v. Fagan, 38 Mo. 83. If the possession of the land by the party who invokes the presumption is entirely consistent with the title in another, said possession will not authorize the presumption of a conveyance.-- Watson v. Bissell, 27 Mo. 220. No “presumptions” can be made against the rights of a married woman; her hands are tied.-- Meegan v. Boyle, 19 How. 149, 150.

HENRY M. BRYAN, for the respondent: A judgment cannot be collaterally attacked for irregularity.-- De Forrest v. Hunt, 62 N. Y. 628. A judgment in ejectment is not a bar to another action.-- Holmes v. Carondelet, 38 Mo. 551. Equity will not aid one who has negligently slept upon his rights, and induced others to act upon the belief that he had abandoned them.-- Landrum v. Bank, 63 Mo. 48; Stark v. Starr, 94 U. S. 477; Bowman v. Wathen, 1 How. 189; Smith v. Clay, 2 Bro. C. C. 640. As to the defence of estoppel in pais, or equitable estoppel.-- Pickard v. Sears, 6 Ad. & E. 469; Gregg v. Wills, 10 Ad. & E. 90; Storrs v. Barker, 6 Johns. Ch. 168; Hall v. Fisher, 9 Barb. 31; Brewster v. Baker, 16 Barb. 613; The State v. Holloway, 8 Blackf. 45; Hartman v. Kendall, 4 Ind. 403; Collins v. Rogers, 63 Mo. 515; Vallé v. Fleming, 29 Mo. 152; Hughley v. Barron, 49 Mo. 103; Rice v. Bunce, 49 Mo. 231; Chouteau v. Goddin, 39 Mo. 250. “Circumstances may justify the presumption of a grant, though the Statute of Limitations does not afford a bar.”-- Ewing v. Burnet, 11 Pet. 41; Newman v. Studley, 5 Mo. 295; McNair v. Hunt, 5 Mo. 300; Thompson v. Peak, 7 Rich. 353; Downing v. Miller, 33 Barb. 386; Jackson v. McCall, 10 Johns. 380; Jackson v. Pratt, 10 Johns. 381; Beall v. Lynn, 6 Har. & J. 361.

W. H. CLOPTON, for the appellants: The circumstances are such as to raise the presumption of a grant from Sarah Lucas to Charles Lucas.--1 Ph. on Ev. 672; 1 Greenl. on Ev., sect. 46, and cases; Newman v. Studley, 5 Mo. 291; Downing v. Miller, 33 Barb. 386; Mayor of Hull v. Horner, Cowp. 102; Hillary v. Waller, 12 Ves. 239; Jackson v. McCall, 10 Johns. 380; Jackson v. Pratt, 10 Johns. 381; Beall v. Lynn, 6 Har. & J. 361; McNair v. Hunt, 5 Mo. 300. A deed may be presumed from a married woman.-- Melvin v. Proprietors, 16 Pick. 137; 17 Pick. 255. Lucas, being the owner of the equity, could make a deed to it, though the land was not then surveyed.-- Haywood v. Ormsby, 11 Wis. 3; French v. Spencer, 21 How. 228; 45 Mo. 584. The defendants cannot attack the proceedings in Bank v. Langham collaterally.-- Voorhis v. Bank, 10 Pet. 449; Grignon v. Astor, 2 How. 319. A judicial sale, made pursuant to a decree or judgment of a competent court having jurisdiction, passes title to the purchaser, even though the judgment afterwards be reversed or set aside for irregularity.-- Burns v. Burns, 6 Vt. 388; Holden v. Sackett, 12 Abb. Pr. 473; Gussen v. Donaldson, 18 B. Mon. 230. A judgment in ejectment is not a bar.-- Carter v. Scaggs, 38 Mo. 302; Holmes v. Carondelet, 38 Mo. 551; Stevens v. Brown, 32 Mo. 176; Strother v. Lucas, 12 Pet. 410.

BAKEWELL, J., delivered the opinion of the court.

This is an action of ejectment, to recover a tract of land included in United States survey 2541, made under New Madrid certificate 164, in the name of John Brooks. The parcel of land claimed in this action is a tract fronting two hundred and ninety feet on Grand Avenue in St. Louis, and lying in Page and McPherson's Addition. The particular lots involved are the same which defendants recovered of Dunn and his tenant Solari, in Miller v. Dunn, reported in 62 Mo. 216. The petition is in the usual form. Defendants plead not guilty.

Both parties claim under Charles Lucas. Lucas conveyed to Tanner, under whom plaintiffs claim. In the ejectment of Miller v. Dunn, Miller claimed under Mrs. Lucas, to whom, under the name of Sarah Graham, Lucas had conveyed the property in contemplation of marriage. Miller, in that suit, introduced a deed from Mrs. Lucas to Gillespie, and derived title to himself through Gillespie. Though Dunn had been in possession for more than twenty years before that action, claiming under Charles Lucas, yet the statute was no bar, as the legal title had not passed out of the United States until the act of Congress of 1864, and the suit was begun in 1872. In the present action, the deed of Mrs. Lucas to Gillespie was not introduced. Defendant showed a legal title in Mrs. Lucas, merely as an outstanding title in a stranger, to show a break in the chain of plaintiff's title at that point. The theory of plaintiff in the present case is that, in the absence of evidence to the contrary, a deed from Mrs. Lucas must now be presumed, to bridge over the gap in the paper title. Defendant introduced the record of the former recovery, and claims that it is a termination of the presumptions in plaintiff's favor growing out of long possession. He also claims that it is a bar.

This is sufficient as an introductory statement. The points upon which defendant relies will be understood from what is further said in the course of the opinion.

It is contended by defendant that the former recovery is a bar. In view of the recent decision of the Supreme Court in Kimmel v. Benna, 70 Mo. 52, it must be taken as settled that a judgment in ejectment is no bar in Missouri, even though the titles and defences are precisely the same as they were in the first suit. Ejectment tries the strength of legal right of possession, and title is only incidentally drawn in question. This was the rule in Missouri until changed by statute in 1855. Rev. Stats. 1855, p. 695, sect. 33. And the old rule was restored by the act of 1857. Acts, p. 34. There could have been no doubt on the matter--in view of the rulings in Slevin v. Brown, 32 Mo. 176; Carter v. Scaggs, 38 Mo. 302; and Holmes v. Carondelet, 38 Mo. 551--but for the dictum in Foster v. Evans, 51 Mo. 39. The matter is now, however, settled, even if there was ever room for a serious question as to the doctrine of the Supreme Court in the matter. There has, really, never been any contrary ruling in this State.

It is, however, incumbent on plaintiff, in this action, to show such title in himself as will warrant a recovery in ejectment. He claims that he has done so.

In 1801, seven hundred and nine arpens of land in New Madrid County were confirmed to the legal representatives of John Brooks. Brooks conveyed to Charles Lucas. Lucas applied for relief under the New Madrid Act, claiming the fee of the land, and that it was injured by earthquake; and in November, 1816, he received from the recorder of land-titles New Madrid certificate 164, entitling him to locate the like quantity (seven hundred and nine arpens) of land. The first deed offered in evidence by plaintiff is a certified copy of a deed recorded in St. Louis County. This deed is dated January 1, 1817, and purports to convey to James Tanner, his heirs and assigns, “a certain tract or parcel...