Green v. Yarnall

• Decision Date: 31 May 1840
• Citation: 6 Mo. 326
• Parties: GREEN & YARNALL, ADM'RS OF YARNALL, v. YARNALL.
• Court: Missouri Supreme Court

6 Mo. 326

GREEN & YARNALL, ADM'RS OF YARNALL,

v.YARNALL.

Supreme Court of Missouri.

May Term, 1840.

ERROR TO THE CIRCUIT COURT OF ST. CHARLES COUNTY.

BIRD, for Plaintiff. 1. The plaintiff here insists that the court erred in instructing the jury on the evidence before them, that said deed passed no title to plaintiff, and the covenants in it did not stop the defendant from maintaining his action. 2. The court also erred in rejecting the evidence offered by defendant below. Rev. Code of Missouri, page 745, §§ 31, 32, 33.

GAMBLE, for Defendant. 1. That the paper offered as a deed of gift was rightly rejected. 2 Kent, 354; Rev. Code of Mo. 1825, page 745, § 31. 2. That the instruction given by the court was certainly not wrong; and I ask how this court can say that the evidence offered was of any sort of relevancy on the trial of the issue.

TOMPKINS, J.

The administrators of John Yarnall brought their action of detinue against John Yarnall, the plaintiff in error, in the Circuit Court of St. Charles county, and having obtained a judgment in that court, John Yarnall comes into this court, on his writ of error, to reverse the judgment of the Circuit Court. On the trial of the cause the defendant offered in evidence a deed, in these words, viz: “Know all men by these presents that I, John Yarnall, of, &c., do give, grant, bargain and sell unto my son John Yarnall, a certaid tract, or parcel of land, lying and situate in the county of St. Charles, &c., and I do furthermore give, grant, bargain and sell, unto my son John, all my negroes as follows, Jack, Tom, Sam, &c., to him, and for his use, his heirs, executors and administrators forever. And I do, by these presents, bind myself, my heirs, executors and administrators, to warrant and defend the above described premises and negroes, to my son John, and his heirs, executors and administrators forever,” &c. This deed was dated the 21st day of November, in the year 1830, and recorded on 6th August, 1831. The plaintiff then produced Philo Gillet, a subscribing witness to the said deed, who testified that he wrote the deed, under the direction of the deceased, and subscribed it as a witness at his request; that John Yarnall, the defendant in the Circuit Court and plaintiff in error, was then under age, and was not present when the deed was drawn; that the deceased said, he should keep possession of the deed and the property until his death, and he knew of no delivery. The defendant then produced Robert Samuels, as a witness, who testified, that a short time before the death of the maker of the deed, he, the witness, had a conversation with him, and advised him to give one of his negroes to his son-in-law Forman; that the deceased replied, that the negro was not his, he had given all his negroes, and the land where he lived, to his son John at his own death, and made him a deed therefor; he stated that John was a cripple; and he had enough property left to give his other children a start. The court decided that this deed could not be read to the jury, that it did not pass the property to the donee, and that the covenants of warranty in said deed, did not estop the administrators from maintaining their action. To this opinion the defendant excepted. The defendant then proved, that he remained a minor on the land in the deed mentioned, after the death of his father; that he took possession of the said negroes immediately after the death of his father; that one of the administrators of the deceased had, since the death of John Yarnall, hired some of the negroes from the defendant; that the widow of the deceased contracted with the defendant as the owner of said negroes; that the administrators had settled their accounts, and that more than three years had expired since they had taken out letters of administration; that all the debts had been paid, and that a balance due the estate had been distributed equally to the thirteen other children of...