Harrold v. Simonds

• Decision Date: 31 July 1845
• Citation: 9 Mo. 326
• Parties: HARROLD AND WIFE v. SIMONDS & BAILEY.
• Court: Missouri Supreme Court

9 Mo. 326

HARROLD AND WIFE

v.SIMONDS & BAILEY.

Supreme Court of Missouri.

July Term, 1845.

APPEAL FROM LINCOLN.

CARTY WELLS, for Appellants. 1. The confirmation to Woods of his grant according to the survey, gave him a complete title to all the land within said survey. See 2 Howard, Stoddard v. Chambers. 2. The deed from Woods to appellants being filed for record, within three months from its date was a sufficient recording under the statute, although not actually copied on the record for several days after the expiration of the three months. And being recorded, passed the title from its date. And being older than Collier's mortgage, must prevail over it; and again, there is no evidence that the patents cover the land in question. 3. The mortgage cannot be set up as a bar in this action. 4. The sheriff's deed conveys no title, because there is no evidence that the land was ever lawfully levied on, advertised and sold as required by statute.

BATES, for Appellees. 1. I submit that the deed of gift was not operative in this action, because it was not recorded in lawful time. Whereas the mortgage to Collier, and under which he purchased, was recorded in proper time. 2. The patents to Collier prove a better title outstanding, than the title shown by the plaintiff. And so, the plaintiffs cannot recover in ejectment; but if they have suffered any wrong, must seek redress in chancery.

NAPTON, J.

This was an action of ejectment to recover a small tract of land, lying in Lincoln county, of which the defendants had possession. The evidence of the plaintiff's title, consisted of, 1. A confirmation by the board of commissioners, in 1810, of the claim of Zadock Woods to 400 arpents, founded on a concession from C. D. Delassus, in 1799, and a survey of the same, made on the 21st December, 1803, and certified the 20th January, 1804. 2. A plat and certificate of survey made by Antoine Soulard in 1804. 3. A deed from Z. Woods and wife to Minerva Harrold, dated January 2nd, 1822, filed for record April 1st, 1822, and recorded on the 5th of the same month and year. The Spanish survey contains, as appears from the bill of exceptions 379 90-100 acres, and the United States survey of the same tract contains 340 28-100 acres, the United States surveyor having thrown off from the Spanish survey twenty rods on the north line. In other words, the northern line of the United States survey runs twenty rods south of, and parallel with, the northern line of the Spanish survey. The deed from Woods to M. Harrold, embraces the land lying between these lines. The defendants relied on two patents from the United States to George Collier, dated December 1st, 1825, and conveying a part of the land in controversy, and secondly, upon a mortgage of the same land from Z. Woods to George Collier, a foreclosure of the same, and a sheriff's sale to Collier under the foreclosure. The mortgage was executed 11th January, 1822, and recorded 7th February, 1822.

The court instructed the jury at the instance of the defendants, that if the deed of mortgage was dated on the 11th January, 1822, and recorded on the 9th February, 1822, and the deed to Minerva Harrold was dated on the 2nd January, 1822, and not recorded until the 5th of April, 1822, the deed to Collier conveyed the title. The plaintiff took a non-suit and moved to set it aside, which was overruled, and the case is brought here by appeal.

The principal question arising in this case, is the one which springs from the instruction given by the Circuit Court, and this depends entirely upon the act of February 1st, 1817, and the act of December 6th, 1821, which was the law regulating conveyances at the time of this transaction.

The second section of the act of February 1st, 1817, provides that all deeds, conveyances, &c., shall be recorded in the county wherein the lands lie, within three months from the date, or the same shall be void against subsequent purchasers, so recording the said deeds, &c., within the time prescribed. The fourth section of the act of December 6th, 1821, provides that conveyances and other instruments of writing, by which the title of land may be affected, either in law or equity, shall not be valid, except between the parties thereto and their heirs, until the same shall have been deposited in the clerk's office for record, as the law directs. The section further declares it to be the duty of the clerk to keep lists of deeds filed in the office for record, open to the inspection of every one, with the date of each filing marked, &c. This last act was not in force until the 1st of March, 1822.

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