Hammond v. Johnston

• Decision Date: 28 November 1887
• Citation: 6 S.W. 83,93 Mo. 198
• Parties: Hammond et al., Appellants, v. Johnston, Receiver, et al
• Court: Missouri Supreme Court

6 S.W. 83

93 Mo. 198

Hammond et al., Appellants, v. Johnston, Receiver, et al

Supreme Court of Missouri

November 28, 1887

Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.

Affirmed.

D. T Jewett with whom was Henry H. Denison for appellants.

(1) The claim of Joseph Hunot was properly, in due time, filed before the board of commissioners, created by the act of March 2 1805 (vol. 2, p. 325), as appears by the record of said board. The several acts of congress under which this board acted allowed a claim to be filed at any time before the first day of July, 1808, and the record shows that the board took testimony on this claim the twentieth day of June, 1808. 2 U.S. Stats. p. 441, sec. 5; Act of Congress, March 3, 1807. (2) After said claim was filed, the deed of Joseph Hunot to Joseph Vandenbenden, in 1810, conveyed an equity in said land to the grantee, and warranted the title against all persons claiming under him. Landes v. Brant, 10 How. (U.S.) 372; Callahan v. Davis, 90 Mo. 83. (3) This claim, rejected by the old board under the act of 1805, was again referred, by the acts of thirteenth of June, 1812, and March 3, 1813, to recorder Bates. The first and second sections of the act of 1813 (2 U.S. Stat., p. 812), are doubtless the ones giving him power over this claim. The law did not require any new filing of the claims before Bates. He took them as he found them filed before the old board, and acted upon them in the name of the person who appeared, by those records, to be the owner. Bates had nothing to do with transfers made after the filing of the papers before the old board, and never took any notice of them, but confirmed them according to the ownership, as it there appeared. And that confirmation enured to the owner of the land, viz., Vandenbenden. Landes v. Brant, 10 How. 374; Callahan v. Davis, 90 Mo. 83. (4) Joseph Vandenbenden was the owner of the New Madrid land when the New Madrid act was passed, February 17, 1815 (3 U.S. Stats., p. 211), and was thus the person entitled to the relief under said law. McCamant v. Patterson, 39 Mo. 100. (5) The return of survey number 2500, though not made till June, 1819, was good to vest the equitable title in Easton, or his legal representatives, at the time the return was made, and not before. Chouteau v. Gibson, 39 Mo. 560; Hammond v. Coleman, 4 Mo.App. 307. (6) The equitable title, therefore, vested in Easton, or his representatives, in February, 1833, and not before, and, by virtue of his full warranty deed to Hammond, the title passed instanter to Hammond. Vide Statutes of 1825, p. 217, sec. 6, which is merely declaratory of the common law. (7) Easton's deed to Hammond, dated September 29, 1823, has in it two clerical errors. The first one, where he says he conveys to Hammond "two hundred and forty acres of land, and all the following tract, except two hundred and thirty-four acres of land of said tract, conveyed to William H. Ashley, as will appear by deed of 1819, recorded in the recorder's office of St. Louis county." (8) The depositions and testimony abundantly prove that plaintiffs are the heirs of said Hammond, except Morrison, who claims an undivided interest under deeds of said heirs, as put in evidence, and that they all resided in the Confederate States during the war, and before and after. (9) That Easton owned the New Madrid land, which had been owned by Hunot, and was injured by the earthquake, was settled by the proper officers of the government. Holmes v. Stroutman, 45 Mo. 293. (10) Thus the steps taken, as above stated, by the owners of the New Madrid land, resulted in giving to Hammond, in 1833, a complete equitable title to the land in controversy. (11) The patent put in by defendants, as well as the act of congress, conclusively prove that the government has granted this land to Hunot's representatives, unless somebody else in possession can show a better outstanding live title. (12) The civil war between the United States and the Confederate States commenced on the nineteenth of April, 1861, in the states of South Carolina, Georgia, and Alabama, and lasted till April 2, 1866, and commenced in Tennessee August 16, 1861, and lasted till April 2, 1866. The same were Confederate States, and the statute of limitations was suspended as to residents in those states between said dates. Hanger v. Nelson, 10 Wall. 158; Levy v. Stewart, 11 Wall. 244; Stewart v. Kahn, 11 Wall. 493; The Protector, 12 Wall. 700; Semmes v. Hartford Ins. Co., 13 Wall. 158; Caperton v. Bowyer, 14 Wall. 235, 236; Brown v. Hiatt, 15 Wall. 183, 184, 185; Adger v. Alston, 15 Wall. 555-560, 561; Lassere v. Borhearean, 17 Wall. 437; Masterson v. Howard, 18 Wall. 99; Batesville University v. Kaufman, 18 Wall. 151; University v. Finch, 18 Wall. 106; Ross v. Jones, 22 Wall. 587; Mathews v. McStea, 1 Otto, 7. (13) The plaintiffs' objection to the copy of the sheriff's deed should have been sustained. A copy cannot be used without an affidavit that the original is not in the power of the party wishing to use it. R. S., secs. 697 and 2302; 40 Mo. 104. It was also proved that the original deed was in the hands of the clerk of the court. When the deed was made, there was no statute authorizing the use of a copy. Miller v. Wells, 5 Mo. 6; Aubuchon v. Murphy, 22 Mo. 123. (14) The description of the land attempted to be sold by the sheriff does not cover the north half of the Hunot survey, the part deeded to Hammond. (15) The court committed error in refusing to give plaintiffs' instruction numbered thirteen, as to the defence of adverse possession. Gibson v. Chouteau, 13 Wall. 92; Langdeau v. Haines, 21 Wall. 531; Gibson v. Chouteau, 50 Mo. 85; McElhinney v. Ficke, 61 Mo. 329; Miller v. Dunn, 62 Mo. 216; Smith v. Madison, 67 Mo. 705; Dunn v. Miller, 75 Mo. 260; Buren v. Buren, 79 Mo. 542.

John B. Henderson and Jas. M. Lewis for respondents.

(1) A sheriff's deed is a public record, made by disinterested and sworn officers of the law, and certified copies of such deed, or of the record thereof, by the proper recorder, are competent and primary evidence of the execution and contents thereof; and public policy, as well as the express statutes of the state, require that copies of such deeds shall be received in evidence on equal terms with the originals. R. S 1879, secs. 2392, et seq. These sections are almost literally the same as sections twenty and twenty-one, of an act to regulate executions, embodied in the revision of 1825, and they have been continued without change from that time until the present. It is the universal rule of decision in states having statutes authorizing the use of copies of deeds, as provided in the execution law of Missouri, to admit such copies on an equal footing with the originals. Fouke v. Ray, 1 Wis. 104; Farrar v. Fessenden, 39 N.H. 269; Fellows v. Fellows, 37 N.H. 75; Hughes v. Debnam, 8 Jones, 127; Wells v. Wilson, 3 Bibb. (Ky.) 265; Dick v. Balch, 8 Pet. 30; Curry v. Raymond, 28 Pa. St. 144; Warne v. Hardy, 6 Md. 525. (2) Peter Lindell, and those claiming under him, had claimed and enjoyed the land in controversy by and through the sheriff's deed, executed by John K. Walker, in 1823, to Relfe and Chew, for a period of forty years before defendants offered a certified copy thereof in evidence in this case, and, therefore, such certified copy was primary evidence, and equally admissible as such with the original, under section 2310. (3) The description of the land in the sheriff's deed is legally sufficient. Wing v. Burgess, 13 Me. 111; Hart v. Rector, 7 Mo. 531; Marshall v. Greenfield, 8 G. & J. 134; Bates v. Bank, 15 Mo. 309; 17 Mo. 583; Dygert v. Pletts, 15 Wend. 402; Huggins v. Ketchum, 4 D. & B. (N. C.) 414; Parker v. Swanee, 1 Humph. (Tenn.) 80. (4) Intermediate conveyances, made by one who has taken incipient steps to procure title, will be covered by the legal title when obtained, and will pass such title to the alienees, against the grantee and his heirs, and against his assigns with notice. And this doctrine equally applies, whether such intermediate conveyances are made by act of the grantee himself, or by the sheriff under judgment and execution against him. Stoddard v. Chambers, 3 How. 316; Bissel v. Penrose, 8 How. 317; Taylor v. Brown, 5 Cranch 553; Stark v. Starrs, 6 Wallace, 418; Shepley v. Cowan, 91 U.S. 337. (5) When Easton executed his deed to Hammond, on September 29, 1823, it related back to the date of his agreement to convey, made September 3, 1818, and the sheriff's deed, conveying Hammond's interest, was sufficient to convey any title that enured to Easton or Hammond under the patent issued by the United States. As between parties to a conveyance, the deed is presumed to have been executed on the day of its date, and not on the day of its acknowledgment. Abrams v. Pomeroy, 13 Ill. 133; Meldrum v. Clark, 1 Morr. (Ia.) 130; Beck v. Cole, 4 Sandf. 79; Dodge v. Hopkins, 14 Wis. 630. (6) The bar of the statute of limitations has run against plaintiff since the issue of the patent, August 30, 1859. Matthews v. McStea, 91 U.S. 7; Bond v. Moore, 93 U.S. 593; Clark v. United States, 99 U.S. 493. (7) The Hunot patent was dated and recorded in the land office on August 30, 1859. The title, thereupon, passed to the grantees. When once recorded, the executive officers of the government have no power to revoke or cancel it. Hence, the statute of limitations commenced running against plaintiffs on said date. United States v. Schurz, 102 U.S. 378; Hoofnagle v. Anderson, 7 Wheat. 212; Barry v. Gamble, 8 Mo. 94. (8) Peter Lindell was the legal representative of Joseph Hunot on August 30, 1859, when the patent was issued to Joseph Hunot, or his legal representatives, and the legal title enured to said Lindell and his heirs and representatives before...