Fields v. Hunter

• Decision Date: 31 July 1843
• Parties: FIELDS v. HUNTER.
• Court: Missouri Supreme Court

8 Mo. 128

FIELDS

v.HUNTER.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM THE RAY CIRCUIT COURT.

DUNN, WILSON, and REES, for Appellant. 1. The court erred in sustaining the demurrer to the third plea; time, by way of description of record, is not material. Martin v. Miller, 3 Mo. R. 135; Brooks v. Remis, 8 Johns. R. 455.2. The court erred in permitting to be read the covenant sued on, without proof of its execution; the covenant is but the inducement to the action, and matter of fact ( i. e. sanction by paramount title), the foundation. See 1 Chitty's Pl. 517; 2 Starkie's Ev. 247; and also, for variance between the covenant sued on, and the covenant introduced as evidence, 1 Chitty, 240; 1 Cowen R. 177; 13 Johns. R. 450. 3. The court erred in permitting to be read as evidence the transcript of Justice Brook, and also in refusing the second and tenth instructions asked by the defendant, all of which involve the same principle. The plaintiff must aver and prove that he was evicted by a lawful title existing at the time of the covenant. See 2 Starkie's Ev. 248; 7 Wend. R. 281; 5 Johns. R. 120. 4. The court erred in giving the plaintiff's instructions, and in refusing to give the defendant's third, fourth, eighth, and ninth instructions, which errors are embraced by the same principle. The defendant was not affected in any manner in this suit, by the trial before the justice, having no notice of such proceeding, nor did such trial preclude him from showing, on this trial, that his title, at the time of making the covenant, was better than Foster's, by whom, it is alleged, the plaintiff was ousted. But, on the contrary, the plaintiff, by failing to notify the defendant of the proceeding before the justice, took upon himself the onus of showing upon this trial that Foster's title was lawful, and paramount to that of the defendant, existing at the time of the making of the covenant. See 15 Wend. R. 425. 5. The court erred in refusing the defendant's fifth instruction. See Greenby v. Wilcox, 2 Johns. R. 1; Foliad v. Wallace, ibid. 395; Kent v. Welsh, 7 Johns. R. 258, ibid. 376; Vanderkan v. Vanderkan, 11 Johns. R. 122; 7 Wend. R. 281, and 2 Sugden's Vendors, 94.

DONIPHAN and WOOD, for Appellee. 1. That the third plea of appellant was bad, and the demurrer properly sustained. 2. That the Circuit Court properly admitted the covenant sued on, without proof of its execution, being the foundation of the action, and profert being made. 3. That the judgment against the appellee, on the action by forcible entry and detainer, amounts to a disturbance of the possession, and an eviction in law under the circumstances of this case, and the transcript was properly admitted as evidence. 4. That if it be competent, under the first breach assigned, for the appellee to prove his efforts to get the possession of the claim of land sold him by appellant, and he failed, the transcript was competent evidence to show that fact. 6. That the court did not err in refusing to permit appellant to prove what other lands Foster claimed or possessed, except the land interfering with the claim sold to the appellee. 7. That notice from appellee to appellant of the pendency of the proceeding by forcible entry, was not necessary to enable the appellant to recover, under the circumstances of this cause. 8. That the first and sixth instructions prayed for by appellant, were all that the court could give on the evidence, and the others were properly refused. 9. That independent of the transcript of Justice Brook, there was, on the trial, sufficient evidence to prove the possession of Foster of the eighty in dispute, and, from all the circumstances of the case, the verdict of the jury was right, and this court will not therefore reverse.

NAPTON, J.

This was an action of covenant, brought by Hunter against Fields, in the Circuit Court of Ray county. The declaration charged, that whereas, heretofore, to-wit, on, &c., at the county of Ray aforesaid, the defendant had, by a certain instrument of writing, sealed, &c., bargained and sold to the plaintiff the land on which he then lived, containing one hundred and sixty acres, for the sum of three hundred dollars, and had covenanted to warrant and defend unto the plaintiff the above-named land; said defendant did not and could not warrant and defend said tract of land, but on the contrary, at the time of making said writing, had no title, interest, or claim whatever to the land. It was farther averred, that one Foster, who, at the time of making said covenant, and ever since, had a good and valid title to the possession of said tract, had entered into the possession of the same, and ejected the said plaintiff by due process of law.

The defendant pleaded non est factum, without affidavit, covenants performed, and former recovery. To this plea, a demurrer was filed, but the record does not show any disposition of the demurrer. The parties went to trial on the first two pleas, upon which issue had been taken, and a verdict and judgment was rendered for plaintiff. Motions were made in arrest of judgment and for a new trial, but the motions were overruled.

It appears from the bill of exceptions, that the plaintiffs offered in evidence a covenant, which was dated Platte county, to the reading of which the defendant objected, but the same was admitted in evidence, without proof of its execution. The plaintiff also gave in evidence a transcript of the proceedings, in an action of forcible entry and detainer, brought before a justice of the peace by plaintiff, against Andrew Foster, in which suit Foster got a judgment for one-half of the land purchased by plaintiff from Fields. Parol evidence was introduced to identify the land; it was also in evidence, that Fields had no notice of this proceeding before the justice; that Foster, at the time of the sale from Fields to Hunter, claimed the piece which he ultimately recovered; that a part of his improvement was on it, but that his house was on an adjoining tract. He was proved to have been an older settler than Fields; and after the purchase of Hunter, he moved his house on the tract sold by Fields to Hunter.

On this state of facts, a variety of...