Hart v. Rector

• Decision Date: 31 August 1842
• Citation: 7 Mo. 531
• Parties: HART v. RECTOR.
• Court: Missouri Supreme Court

7 Mo. 531

HART

v.RECTOR.

Supreme Court of Missouri.

August Term, 1842.

ERROR TO THE CIRCUIT COURT OF COOPER COUNTY.

LEONARD, for Plaintiff.

ADAMS & HAYDEN, for Defendant.

NAPTON, J.

This was an action of ejectment for the northwest fractional quarter of section 35, township 49, of range 17. On the trial the plaintiff gave in evidence a patent from the United States, dated 19th November, 1822, to Henry Carroll, Robert Wallace, and himself. Thereupon the defendant, for the purpose of showing title out of the plaintiff, gave in evidence a judgment of the Circuit Court for Cooper county in favor of Th. A. Smith against George Tonnall and the plaintiff, Hart; a fieri facias execution thereon, of the 10th October, 1828, with the sheriff's return thereon, and the sheriff's deed of the 17th February, 1829, conveying the said land, so levied on and sold, to one William M. Adams. The plaintiff then gave in evidence two judgments of the Cooper Circuit Court against Hart; one in favor of Gideon James, of the 26th January, 1821, and the other in favor of Noah Nichols, of the 21st May, 1821. Fieri facias executions thereon, of the 9th August, 1823, with the sheriff's returns and writs of venditioni exponas of the 2nd July, 1824. The return to the writ of venditioni exponas certified that the sheriff had advertised and sold the property described in the writ, and that it sold for $41 12 1/2, and was signed by the sheriff. Afterwards, at the October term, 1836, leave was given to the sheriff to amend the return made in 1824, by which amended return it appeared that the sheriff sold “all Hart's interest in the Boonville tract, being three and one-half eighths,” to Gersham Compton. The plaintiff then offered in evidence a deed of the 27th October, 1836, for this land, made by the sheriff of Cooper county to Gersham Compton, made in pursuance of the order of the Circuit Court of Cooper county. The description of the land conveyed in this deed is “three and one-half eighths of the Boonville tract, situate in Cooper county, on the south side of the Missouri river.” This deed was objected to, and the court excluded it. The plaintiff then offered the same deed, with proof that the expression, “Boonville tract,” was at the times of the levy, advertisement, and sale, and making of the deed, well known in the county of Cooper and neighborhood to mean the northwest fractional quarter of section 35, township 49, range 17, and that this tract of land, at the time of the levy, had acquired the appellation of “the Boonville tract,” and was then and afterwards, down to the time of the conveyance, generally known by that appellation. To this proof defendant objected, and it was excluded by the court.

The plaintiff saved his exceptions to the action of the Circuit Court, suffered a non-suit, and afterwards moved to set it aside, but the motion was overruled by the court. The case is brought here by writ of error. Before considering the material question which has been raised and argued, it is proper to dispose of a preliminary objection which has been urged against the plaintiff in error. The record does not show that the plaintiff proposed to derive any title from Compton (the deed to whom was rejected), and therefore the judgment of the Circuit Court may be sustained, upon the ground that it is not apparent but that the deed was rejected for impertinence and irrelevancy. In many cases, it must be admitted, liberal presumptions have been indulged by this court in favor of the action of the Circuit Court, and especially in all questions concerning new trials, and those in which a discretionary power has been exercised by those courts. The same rule might perhaps, stricti juris, bind the plaintiff in error here. But the presumption would be strained too far, in my opinion, to let it prevail in a case like this, when the testimony offered to remove the objections must be sufficient to satisfy this court of the real character of those objections. Without attempting then to lay down any general rule which shall govern the future action of this court, we pass by the objections, and proceed to consider the case on its merits.

The...