Gentry v. Woodson

• Decision Date: 31 July 1846
• Citation: 10 Mo. 224
• Court: Missouri Supreme Court
• Parties: GENTRY v. WOODSON.

10 Mo. 224

GENTRY

v.WOODSON.

Supreme Court of Missouri.

July Term, 1846.

APPEAL FROM BOONE CIRCUIT COURT.

TODD, for Appellant.

GORDON & LEONARD, for Appellee. 1st. The proof given, consisting exclusively of the deed of November, 1818, and the partition deed of September, 1821, did not maintain the issue on the part of the plaintiff, and therefore the instruction asked was properly given. 2nd. The chain of title offered in evidence by the plaintiff, consisting of the five deeds, was properly excluded on the ground that two of the deeds, embraced in the chain, had been executed under powers of attorney, which were neither produced nor offered in evidence. 3rd. The rejected evidence was offered too late. After the proof was closed on both sides, it was in the discretion of the court to allow or refuse to allow the case to be opened, and fresh evidence given, and it does not appear that the Circuit Court improperly exercised this discretion, and unless it does so appear from the record this court will not reverse the judgment. Frederick and others v. Gray, 10 Serg. & Rawle, 182; Jackson v. Talmadge, 4 Cowen, 450; George v. Bradford, 14 Eng. Com. L. R. 391.

NAPTON, J.

This was a petition for dower in lot number seven, in the town of Columbia. The defendant, among other pleas, pleaded non-seizen in the husband. On the trial of this issue, the plaintiff gave in evidence a deed, dated 14th November, 1818, from Anderson Woods and others to Thomas Duley and others, conveying the tract of land upon which the lot in controversy is situated, in trust, to lay out a town thereon, and dispose of the lots for the benefit of the proprietors, of whom Richard Gentry was one. The plaintiff also gave in evidence a deed of partition among the proprietors of said tract, dated September 3, 1821, of the undisposed lots in the town of Columbia, and by this deed lot number seven was assigned to Richard Gentry as a portion of his share. The plaintiff also proved her marriage with the said Richard Gentry previous to 1821, and his death in 1837, and here closed her case. Thereupon, the defendant having no evidence to offer, prayed the court to instruct the jury, that upon the evidence submitted the issue of non-seizen could not be found for the plaintiff. Whilst this motion was under advisement, the court seeming inclined to overrule it, as the bill of exceptions states, the plaintiff proceeded to offer in evidence copies of five deeds, constituting a chain of title from Richard Gentry to the defendant, with proof of the defendant's possession of the lot at the commencement of this suit. Two of these deeds were executed by powers of attorney, but the instruments by which these powers were created were not produced. This evidence was rejected by the court, and upon the court's expressing an opinion that the plaintiff could not recover upon the evidence submitted, she took a non-suit, and afterwards moved to set it aside. This motion being...