Hammond v. Johnston

• Decision Date: 28 November 1887
• Citation: 6 S.W. 83,93 Mo. 198
• Parties: HAMMOND and others v. JOHNSTON and others.
• Court: Missouri Supreme Court

6 S.W. 83

93 Mo. 198

HAMMOND and others v. JOHNSTON and others.

Supreme Court of Missouri.

November 28, 1887.

1. EXECUTION — SALE — WHAT SUBJECT TO — PUBLIC LANDS — INTEREST PRIOR TO RETURN OF PLAT.

A sheriff's deed conveyed all the judgment debtor's interest in certain land. Plaintiffs in ejectment, heirs of the judgment debtor, claimed the purchaser acquired no interest in the land, on the ground that at the time of the sale the surveyor general had not made a return of the plat of the survey of the land to the recorder of land titles, and the title was yet in the United States. The evidence showed that the initiatory steps to acquire a patent by the judgment debtor's grantors were commenced in 1810, but that the surveyor did not make a return of the plat until 1833. Held that, as between the judgment debtor and any party but the United States, he had such a valuable interest in the land prior to 1833 as could be seized and sold on execution.

2. SAME — HOLDER OF A BOND FOR DEED.

Plaintiffs objected to the sufficiency of a sheriff's deed on the ground that the judgment debtor had no interest in the land subject to execution. The evidence showed that for some time before the judgment the judgment debtor held a bond for a deed to the land, and that before the execution sale a deed was made to him, but was not acknowledged until after the sale. Held, that the judgment debtor had an equitable interest in the land which could be sold on execution.

3. SAME — SHERIFF'S DEED — SUFFICIENCY OF DESCRIPTION.

Plaintiffs claimed a sheriff's deed to be void for uncertainty. The deed did not give accurately but one boundary line of the land, but it further described it by name and by features familiar in that neighborhood. It was clearly shown that the land was well known by name, and had once been conveyed by name, and a surveyor, who surveyed the land many years before, with the sheriff's deeds before him, easily found it. Held, that the description in the deed was sufficient.

4. SAME — CERTIFIED COPY OF DEED AS EVIDENCE.

A certified copy from the recorder of a sheriff's deed was admitted as evidence in an ejectment suit. Plaintiffs objected on the ground that the original was in the power of defendants. Rev. St. Mo. § 2395, relating to deeds made by officers, upon sales under executions, provides: "Every deed executed and acknowledged * * * or proved shall be recorded as other conveyances of land; and thereafter such deed, or a copy thereof, or of the record, certified by the recorder, shall be received in evidence in any court in this state without further proof of the execution thereof." Held, that the certified copy was primary evidence, and it was not necessary to produce the original or prove its loss.

5. SAME — INSTRUCTION.

A certified copy of a sheriff's deed was in evidence. The court gave an instruction that the deed would be presumed from the record entry of the sheriff's acknowledgment. Held, that the copy was prima facie equal to the original, and the instruction was erroneous, but, in view of the force and effect of the deed, was immaterial.

6. PUBLIC LANDS — ISSUE OF PATENT — WHEN TITLE VESTS.

A patent from the government to certain land was signed, sealed, and recorded August 30, 1859; but, as there was a question as to who was legally entitled to a patent for the land, it was not delivered until November 12, 1860. Held, that the patent took effect, so as to vest the legal title in the grantee, on August 30, 1859.

7. LIMITATION OF ACTIONS — RUNNING OF THE STATUTE — STATE OF WAR.

Missouri statute of limitations provides that actions to recover lands shall be commenced within 10 years from the accruing of the cause of action. The statute of limitations began to run against plaintiffs, August 30, 1859, and suit was begun 14 years 9 months and 15 days thereafter. The plaintiffs, to overcome the bar, showed that they resided in the Confederate States during the war. Held, that as it was conceded the war did not begin in Tennessee until August 16, 1861, and ended April 2, 1866, the plaintiff residing in Tennessee was barred; but as it began in the other states April 19, 1861, the plaintiffs residing in those states were not barred.¹

8. SAME — BETWEEN RIVAL CLAIMANTS OF PUBLIC LANDS.

The statute of limitations does not run as between rival claimants of government land until the legal title by patent is acquired by one of them.

Appeal from St. Louis circuit court; WILLIAM H. HORNER, Judge.

J. B. Henderson and Jas. M. Lewis, for appellants. D. T. Jewitt and Henry H. Dennison, for respondents.

BLACK, J.

This is an action of ejectment for lot 50, in Peter Lindell's Second addition to the city of St. Louis. This suit was begun on the fifteenth day of June, 1874. There was a judgment, on a trial by the court without a jury, for defendants; and the plaintiffs prosecute this appeal.

The title of the plaintiffs is as follows:

Joseph Hunot claimed a head-right of 800 arpents of land in New Madrid county, under a Spanish permission to settle, dated in 1802. The claim, based on possession and cultivation, was presented to the old board of commissioners, and was rejected in 1811. Subsequently, and it would seem on November 1, 1815, Recorder Bates recommended the claim for 640 acres. The report was confirmed by the act of congress of April 29, 1816, (3 U. S. St. 328.) Before this and on the twelfth May, 1810, Hunot, by a warranty deed, conveyed the land to Joseph Vandenbenden, who by a like deed conveyed the same to Rufus Easton, on the fourth November, 1815. The land having been injured by earthquakes, Recorder Bates, on the twelfth August, 1816, issued to Joseph Hunot, or his legal representatives, what is known as "New Madrid Certificate No. 161," for 480 acres of land, a certificate for 160 acres having been previously issued. On the sixteenth June, 1818, Rufus Easton made application to the surveyor general to have certificate No. 161 located on certain lands, being the same upon which it was subsequently located. A survey appears to have been made as early as June 23, 1819, which is known as "Survey No. 2,500," describing the 480 acres of land. This survey was not returned by surveyor general to the recorder of land titles until the eighth January, 1833. On the tenth July, 1819, Rufus Easton conveyed to William Stokes 234 acres, the same being the southern portion of the survey; and by his deed, dated the twenty-ninth September, 1823, acknowledged ninth October, 1823, and recorded ninth February, 1824, Easton conveyed the remaining 240 acres, being the northern portion of the survey, to Samuel Hammond. The lot in question is a part of the 240 acres.

Samuel Hammond left St. Louis largely indebted to the government, and to individuals, and returned to South Carolina in 1824, where he died in 1842, leaving five children, one of whom is living. This child, Mary Washington, and the children and heirs of her deceased brothers and sisters, are plaintiffs in this suit. The other plaintiff, Morrison, in 1873-74, procured seven or eight deeds from some of the other plaintiffs, conveying to him a two-thirds interest in the survey.

The defendants put in evidence a certified copy of a sheriff's deed to Richard Relf and Beverly Chew, conveying to them the 240 acres, it is claimed. Relf, Chew, and Mary Clark commenced a suit in the St. Louis circuit court in 1819, against Samuel Hammond, which resulted in a judgment in favor of plaintiffs. This judgment was affirmed in the then supreme court for the Northern district, on May 22, 1823. On the next day an execution was issued against Samuel Hammond for $6,877, by virtue of which the sheriff levied upon the property, and on the eighth of October, 1823, sold the same to Relf and Chew. The deed is dated the fourth November, 1823; was acknowledged in the circuit court on the same day; and recorded on the twenty-seventh January, 1824. It is a copy of this deed which was read in evidence. Relf and Chew conveyed the land to Peter Lindell in 1840. Before that, and in 1834, Joseph Hunot made to Lindell a quitclaim deed for the whole survey. On the trial it was stipulated that Lindell took possession of the survey in 1831, and that he, his heirs and their grantee, Johnston, have had and held continuous adverse possession down to the trial of this case.

Defendant put in evidence a patent from the United States, dated August 30, 1859, to Joseph Hunot, or his legal representatives. A plat of the survey is made a part of the patent, which shows that the survey conflicts with certain surveyed common field lots, and these are excepted from the operation of the patent. It appears that in March, 1833, Peter Lindell transmitted the patent certificate to the general land-office at Washington, and requested a patent. The matter was not attended to for a long time and then only upon the agreement of Lindell that the exceptions before mentioned should be stated in the patent.

Plaintiffs then put in evidence the act of congress of June 30, 1864, (13 U. S. St. Priv. Laws, 7,) whereby the United States relinquished all their title to the land described in survey No. 2,500 to Joseph Hunot, or his legal representatives.

Various objections are made to the defendant's title, and especially to the sheriff's deed to Relf and Chew. The first point is that the court erred in admitting in evidence the certified copy from the recorder. When this deed was offered, counsel for the plaintiff objected to the use of a copy, stating that the original was in the power of the defendants, but no proof was then made of the alleged fact, and the court received the copy. After the close of the defendants' case, the plaintiffs called the clerk of the court, who produced the original deed from the papers in another of these Hammond suits, which had been previously tried. The deed was shown to the judge, but neither party offered it in evidence. The court at the time made no ruling as to whether the...