Evans v. Labaddie

• Decision Date: 31 March 1847
• Citation: 10 Mo. 425
• Court: Missouri Supreme Court
• Parties: EVANS & RIEHL v. LABADDIE.

10 Mo. 425

EVANS & RIEHL

v.LABADDIE.

Supreme Court of Missouri.

March Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

This was an ejectment in the St. Louis Circuit Court by Labaddie against Evans & Riehl for a lot of ground in the city of St. Louis, brought on the 19th October, 1841. It was tried 7th February, 1844, and a judgment rendered for plaintiff below. A new trial was asked for, 1st, because the verdict was against evidence; 2nd, against law and evidence; 3rd, against the weight of evidence; 4th, because the court improperly admitted evidence; 5th, because the court gave wrong instructions for plaintiff; 6th, because the court refused to give instructions asked by defendant; 7th, because the court, of its own motion, gave wrong instructions; 8th, because of newly discovered evidence. This motion was overruled. The affidavit disclosing newly discovered evidence, as it is called, merely states that since the trial the defendant has obtained a deed for half of the land from the administrator of R. Duncan, on a sale previously made by the Probate Court.

The bill of exceptions is long, but the following is a brief abstract of the facts. The plaintiff lead in evidence a paper executed by A. H. Evans, one of the defendants, to Elias T. Langham, dated January 9th, 1836, wherein Evans relinquished to Langham the lot of land in question; also, a deed from said Langham to William T. Sanford, dated 14th March, 1838, for the same lot and two others, for the consideration of $1,500, stated in the deed to have been paid, which was recorded 16th April, 1838; also, a deed from said Sanford to the plaintiff, dated the 13th of July, 1840, for same lot, recorded 9th November, 1840. The plaintiff having also proved possession of the lot at the time of the commencement of suit by defendants, and the rents and profits, and also monthly value, rested his case.

The defendants then proved that Evans built the house and made the improvements on the lot in question, and gave in evidence a designation of land, signed by Silas Reed, surveyor, &c., dated 17th January, 1844, setting apart a parcel of land, which embraced said lot, for the use of schools, and is bounded south by Soulard, west by the Mackay tract, north by Auguste Chouteau, and cast by the Mississippi, and is precisely the same piece of land that was fractional section 26, township 45 north, range 7 east of the 5th principal meridian. The defendants then read in evidence the receiver's duplicate receipt, dated 2nd May, 1836, evidencing a sale to Robert Duncan of said fractional section; also the plat of survey of the same; also a judgment record, comprehending merely the judgment itself, without the writ, declaration or pleading, which judgment was rendered on the 4th April, 1839, in the United States Circuit Court for the Missouri district, in favor of the United States against said Langham, for $10,796 36; also an execution thereunder, dated 10th October 1639, and marshal's deed, dated 13th April, 1840, setting forth advertisement and sale to Evans on the 3rd April, 1840, of said fractional section for the sum of $100, and conveying to him all such right as Langham had at the time of the rendition of the judgment; which deed was recorded 20th April, 1840. The defendant likewise gave in evidence an agreement between Robert Duncan and said Evans, dated 20th December, 1834, stating that Duncan had proved a pre-emption right to said piece of land (viz: fractional section 26. aforesaid), and agreed to let Evans have one-half of that which lay between the little creek, Soulard, and Mackay, on Evans paying the government for the whole; and also, a proportion of another pre-emption right, on his paying government also for that. This agreement was recorded 12th May, 1836. Evidence was given tending to show that Labaddie purchased said lot from Langham and paid him, and then applied to Sanford and got a deed for the same, Sanford telling the witness that he did not own the lot and that he had deeded it to Langham. It appeared that Sanford was dead when the trial was had. The defendant here closed his case.

The plaintiff then read in evidence a deed from Robert Duncan to said Langham, dated 29th June, 1835, conveying to him the said tract of land entered by him according to said receiver's receipt and subject to the said article of agreement made between him and Evans of 20th December, 1834, which land included the lot in question. The plaintiff gave in evidence a plat of subdivision of said fractional section 26, showing that it was laid off into town lots.

The defendants asked eleven instructions, of which the 2nd, 3rd, 5th and 7th were given, and the others refused. 1. The court is requested to instruct the jury, that if they find from the evidence that the lot of ground mentioned and described in the plaintiff's declaration is embraced within and belongs to the land set apart and reserved for the use of the town of St. Louis for the benefit and support of schools, as more particularly set forth and described in the certified designation from the office of the surveyor-general of the public lands in the States of Illinois and Missouri, which said certified designation has been read in evidence, they will find for the defendants. 2. If the jury find from the evidence that no title to the land in question has passed from Duncan to the present plaintiff, by direct deed or intermediate con eyance, they will find for the defendants. 3. That the certificate of the receiver, read in evidence, is evidence of title in Duncan from the date of the same. 4. That the deed read in evidence from Duncan to Langham, as far as it relates to the land in question, being subject to conditions expressed or referred to in the deed, the condition must be taken in connection with the deed, and if, from both condition and deed, Evans was a joint tenant with Langham, they will find for the defendants, unless they find from the evidence that Evans' interest has been legally conveyed to the plaintiff. 5. That the judgment of the United States against Langham was a lien on the land of Langham from the rendition of the same, and that the sale of the marshal to Evans passed to Evans all the title that was in Langham at the time of the rendition of said judgment or sale. 6. That the United States are entitled to priority, and that their priority commences as early as the service of the writ against Langham, and the subsequent sale by the marshal passes to Evans all the title of Langham at the time of the said service and at the time of the sale. 7. That the writing offered in evidence by the plaintiff, bearing date 9th May, 1836, and purporting to be a relinquishment from Evans to Langham of the land in question, passed no legal title to Langham. 8. That if the jury find from the evidence, that at the time of Sanford's deed to Labaddie, the plaintiff, Langham, was the owner of the lot in question, and by a previous conveyance from Sanford, and while so owned by Langham, the United States obtained a judgment against Langham, the said judgment and sale under it passes the title to the said purchaser under said sale. 9. That the marshal's sale and deed passes the title to Evans, the defendant, and the title so obtained by Evans does not enure to Langham and his grantees. 10. That the statement of William T. Sanford to Edward Warrens, the agent of the plaintiff, Labaddie, at the time of the execution of the deed from Sanford to Labadie, that he was not the owner of the land and had previously deeded the same to Langham, and the testimony of Warrens that no consideration money was paid Sanford, together with the fact that Labaddie purchased of Langham the land in question and paid him, Langham, the consideration, is competent testimony to show title in Langham at the time of Sanford's deed to Labaddie. 11. That the evidence of Sigler, the witness produced by the plaintiff, that he purchased a portion of the same tract from Langham originally belonging to Duncan and sold to Langham, and also took his deed from Sanford at the time without paying to Sanford but with payment to Langham, is competent testimony to show title in Langham at and before Sanford's deed to Labaddie.

The court, of its own motion, gave the following instructions: The marshal's deed passes nothing to Evans except such interest, if any, which Langham had at the date of the judgment upon which the marshal's sale was had. If the jury believe from the evidence that the conveyance of Langham to Sanford was made with the intent to hinder, delay, or defraud creditors, prior or subsequent, the same is void, and any acts or declarations of Langham and Sanford upon the occasion of the conveyance to Sanford, or any acts or declarations of Sanford or of Langham sanctioned by Sanford after the conveyance, may be offered in evidence. Such conveyance of Langham, however, is not void as to Labaddie, unless he was party or privy to the fraud intended, or had actual notice thereof.

The court then gave the following instructions asked by plaintiff: That there is no evidence of the conveyance of the lot in dispute by Sanford to Langham. 2 B. That the designation by the surveyor-general of the land for the use of Public Schools, read in evidence in this cause, shows no title in the St. Louis Public Schools to the lot in controversy. 3 B. That the deed under the marshal's sale, with the record of judgment under which the same was made, as read in evidence in this case, shows no legal outstanding title in bar of plaintiff's action. 4 B.

The court then, of its own motion, gave the following instructions: Any title that vested in Duncan by the receiver's certificate, immediately passed to Langham, if Duncan had then before conveyed said land to him. 1 A. The article of agreement between Duncan and Evans, dated 20th December, 1834, passed no legal title to Evans in the land in controversy. 2 A. At the conclusion of all the testimony and instructions, is the...