Hamilton v. Pitcher
| Decision Date | 31 August 1873 |
| Citation | 53 Mo. 334 |
| Parties | EDWIN G. HAMILTON, Plaintiff in Error, v. SAMUEL D. PITCHER, et al., Defendants in Error. |
| Court | Missouri Supreme Court |
Error to Clay Circuit Court.
Sam'l Hardwick, for Plaintiff in Error.
I. Mrs. Pitcher acquired a title in fee simple; and if so, that title passed to the plaintiff, of course. (Arthur vs. Weston, 22 Mo., 378; English vs. Beehle, 32 Mo., 186; McDowell vs. Brown, 21 Mo., 57; Clap vs. Draper, 4 Mass., 266.)
H. Smith, for Defendants in Error.
I. By the deed from Lard, Mrs. Pitcher acquired an undivided interest equal to that of each of her children in esse at the date of Lard's deed. The evidence, as contained in the bill of exceptions, does not show the number of such children, hence does not show Mrs. Pitcher's interest. Plaintiff therefore shows himself entitled to no definite interest, and the Circuit Court is right in finding for defendants.
This was ejectment for an acre of land in the town of Liberty in Clay County in the State of Missouri.
Both parties agreed, that the original title to the land in dispute was in Moses E. Lard.
To sustain the issues on his part, the plaintiff offered in evidence a deed from said Lard and wife “to Margaret W. Pitcher, wife of Samuel D. Pitcher, and her children, of the County of Clay and State of Missouri, of the second part,” which conveys the land in dispute to “said party of the second part, and to their heirs and assigns forever.” The habendum is to them, the said party of the second part, “and to their heirs and assigns forever.”
The deed was acknowledged before a Notary Public of Clay county, the certificate of acknowledgment being in due form under the notary's seal of office. The defendants objected to the deed, because the notary had not been duly commissioned although acting as notary. This objection was overruled.
The plaintiff then offered in evidence a mortgage deed with power of sale, executed by said Samuel D. Pitcher and his wife, Margaret W. Pitcher, to Alexander J. Calhoun, to secure a debt due from Pitcher to said Calhoun, and also a deed to plaintiff by Calhoun, as mortgagee, foreclosing the mortgage under the power of sale, which appears to have been duly executed and acknowledged.
There was evidence given that the defendants, Samuel D. Pitcher and Margaret W. Pitcher, are husband and wife, and the other defendants are children of Margaret W. Pitcher, some born before, and a part of them after, the date of the deed from Lard.
This was all the evidence. The plaintiff then asked the court to declare the law as follows:
1st. “The court declares the law to be, that the conveyance from Samuel D. Pitcher and wife, being acknowledged before a de facto officer, was good and sufficient, although there may have been a defect in his commission.”
2nd. “The court declares the law to be, that the conveyance read in evidence shows title to plaintiff in said property in dispute.”
The court gave the first, and refused the last declaration. The case having been submitted to the court sitting as a jury, it found the issues for,...
To continue reading
Request your trial
-
Long v. St. Louis Union Trust Co.
...her as representative of a class, to open and let in the children as tenants in common with her if and when they were born. In Hamilton v. Pitcher, 53 Mo. 334, a deed to M. W. "and her children" was held to convey the fee to M. W. P. and her children then in being as tenants in common but s......
-
Mathews v. O'Donnell
... ... were effective did not convey, at all events, merely a life ... estate to Mrs. Mathews. Hamilton v. Pitcher, 53 Mo ... 334; Allen v. Claybrook, 58 Mo. 124; Hall v ... Stevens, 65 Mo. 670; Waddell v. Waddell, 99 Mo ... 338; Dietz v ... ...
-
Gillilan v. Gillilan
...cases in this State which hold that under a devise he would take the fee as tenant in common with the children thereafter born. Hamilton v. Pitcher, 53 Mo. 334; Allen Claybrook, 58 Mo. 124; Hall v. Stephens, 65 Mo. 670; Reed v. Painter, 129 Mo. 680. (b) Under the following cases it could we......
-
Long v. St. Louis Union Trust Co., 30020.
...her as representative of a class, to open and let in the children as tenants in common with her if and when they were born. In Hamilton v. Pitcher, 53 Mo. 334, a deed to M.W.P. "and her children" was held to convey the fee to M.W.P. and her children then in being as tenants in common but se......