Harrington v. Utterback

• Decision Date: 31 October 1874
• Parties: FREDERICK W. HARRINGTON, Plaintiff in Error, v. JAMES T UTTERBACK, et al., Defendants in Error.
• Court: Missouri Supreme Court

57 Mo. 519

FREDERICK W. HARRINGTON, Plaintiff in Error,

v.JAMES T UTTERBACK, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Montgomery Circuit Court.

C. H. Lee and Daniel Dillon, for Plaintiff in Error, cited: Vogler vs. Montgomery, 54 Mo., 577; Clark vs. Cov. Mut. Ins. Co., 52 Mo., 276.

Powell and Hughes, for Defendants in Error, cited: Drake vs. Jones, 27 Mo., 428.

E. Wells, for Defendants in Error, cited: Kuhn vs. McNeil, 47 Mo., 389; Drake vs. Jones, 27 Mo., 428.

SHERWOOD, Judge, delivered the opinion of the court.

The plaintiff is the owner of a house and lot in the town of New Florence, an incorporated town of less than forty thousand inhabitants. The lot does not include more than thirty square rods of ground, nor with the appurtenances, exceed in value the sum of fifteen hundred dollars. The plaintiff is the head of a family, and for a long space of time has owned, occupied and claimed the property as his homestead, and he is still in possession of, and using it, for the above mentioned purpose.

After the acquisition of his homestead, the plaintiff became indebted, judgments were rendered against him, and the homestead sold under executions; the defendants becoming the purchasers, and placing upon record the deed which they received from the sheriff, although they were fully apprised of the plaintiff's rights in the premises.

A petition alleging in substance the foregoing facts and praying for appropriate relief, was held insufficient on demurrer, and this necessitates an examination into the sufficiency of the petition.

If we look alone to the record in this case, we find that the defendants are the owners of the property; and in order to rebut and overthrow this prima facie case, which the records establish, resort must be had to extrinsic evidence, and parol evidence at that, to prove that the plaintiff is the true and rightful owner of the property, the records to the contrary notwithstanding; and that the defendants acquired nothing by their purchase. In cases of this sort the rule is well settled in this State, that a party in the situation of the plaintiff, may, under the circumstances detailed in his petition, very properly invoke equitable interposition to remove the cloud cast upon his title.

In the case of Clark vs. The Covenant Mutual Life Insurance Co., (52 Mo., 272) the cloud on the title consisted of a forged deed, which although a nullity, yet apparently constituted a link in the regular chain of conveyances, tending to obscure plaintiff's title and prevent her from using or disposing of her property; and without resorting to extrinsic evidence the title of her supposed...