Frost v. Pryor

• Decision Date: 30 April 1842
• Citation: 7 Mo. 314
• Parties: FROST v. PRYOR.
• Court: Missouri Supreme Court

7 Mo. 314

FROST

v.PRYOR.

Supreme Court of Missouri.

April Term, 1842.

APPEAL FROM THE CLAY CIRCUIT COURT.

REES & WILSON, for Appellants.

DONIPHAN & WOOD, for Appellees.

NAPTON, J.

The appellee brought an action of assumpsit against the appellant, in the Clay Circuit Court, on the following note:

“We, or either of us, promise to pay to George M. Pryor, the just and full sum of one thousand eight hundred and six dollars and twenty-five cents, bearing ten per cent. interest from the date until paid, and to be paid within one month from the time the said Pryor shall perfect his title to the tavern lots and property attached thereto. Given under our hands this 29th day of April, A. D. 1840.

P. S. FROST,

J. P. FROST,

ISAAC FROST.”

On the trial of the cause, the plaintiff below, to show title, offered in evidence several conveyances, to all of which conveyances defendant objected generally, but the objections were overruled by the court. Among other deeds offered and read in evidence were a patent from the United States to one John Owens, deeds from Owens and wife to one Searcy, deeds from Searcy and wife to one Poter Fleming, deeds from Poter Fleming and wife to John Chauncy, a power of attorney from said Chauncy to G. L. Hughes, and a deed from Hughes to the legatees of G. W. Hendly. The plaintiff also offered a deed from Peter B. Grant and wife (the latter being one of the legatees of said Hendly), acknowledged before a justice of the peace, and deeds from the other legatees to Pryor, and from Pryor to Frost. Some oral testimony was introduced, though objected to, for the purpose of identifying the lots described in Chauncy's power of attorney. Several witnesses testified in relation to conversations had with Frost, conducing to show that Frost was advised of the nature of the title, had examined the same, and objected only to the power of attorney. A verdict was found for the plaintiffs, and judgment given accordingly. Motions were made in arrest of judgment and for a new trial, but the motions were overruled. The errors assigned are, that the declaration was defective, containing no averment that Pryor had given notice to Frost of his title when perfected, that the court admitted incompetent testimony, and that a new trial was improperly refused.

The declaration is clearly defective; but as the defect consisted of an omission of an averment, without proving which the jury ought not to have found a verdict, it cannot be taken advantage of by motion in arrest.^(a) The title papers are spread upon the record by bill of exceptions. It seems that the objections made to each of these papers were general; no specific objection was pointed out to the court below, nor do the...