Hartt v. Rector

• Decision Date: 31 July 1850
• Citation: 13 Mo. 497
• Parties: HARTT v. RECTOR & DOBBIN.
• Court: Missouri Supreme Court

13 Mo. 497

HARTT

v.RECTOR & DOBBIN.

Supreme Court of Missouri.

July Term, 1850.

ERROR TO COOPER CIRCUIT COURT.

LEONARD, for Plaintiff. 1. The court erred in excluding the plaintiff's title, derived from the sheriff's sale of July, 1827. 2. The court erred in excluding the plaintiff's title, derived from Nowlin's deed of July, 1836. 1 Greenl. Ev. § 301, and notes; 3 Phil. Ev. 1376, Cowen & Hill's Notes, note 942; Gates v. Lewis, 7 Vt. R. 511; Loomis v. Jackson, 19 Johns. 449; Worthington v. Hylyer, 4 Mass. R. 196; Blaque v. Gould, Cro. Ca. 447; Lush v. Drux, 4 Wend. 318; Jackson v. Clark, 7 Johns. 223; Jackson v. Moore, 6 Cowen, 706; McIver's Lessee v. Walker, 9 Cranch, 178; Davis v. Ransford, 17 Mass. R. 210; Jackson v. Camp, 1 Cowen, 612; Newsom v. Prior, 7 Wheat. 10; Jackson v. Wendall, Wend. 147; Boardman v. Reed and Ford's Lessees, 6 Peters, 345; White v. Gay, 9 N. Hamp. R. 127; Long v. Norton, 8 Greenl. 68; Conolly v. Vernon & Vyse, 5 East, 78; Fulwood v. Graham, 1 Richardson's R. 491.

HAYDEN, for Defendants.

1. The deed of trust, made by Hartt to Nowlin, on the 15th day of April, 1823, is a conditional deed, and did not, at the time it was made, invest Nowlin with a then present interest in the lands therein mentioned; but the vesting of an inverest in him depended upon the condition, or the happening of the event therein specified; that is to say, upon the event that judgment should go (or be obtained against Wm. S. Edwards and John Corum) in the respective suits then pending in the Cooper and Saline Circuit Courts against them, as the securities of Hartt to Turner in Hartt's bond for the conveyance of land to Turner, as is specified in the reciting part or caption of the deed; and in order to show that Nowlin ever had any interest in the land, by virtue of the deed to him, it devolves upon the plaintiff in this suit, to show the happening of the event or condition precedent in the deed mentioned; and in this case, there is nothing in the record showing that the said event ever did happen. This deed of trust is different from the usual deeds of trust as drawn in this country. In this deed, the interest in the land does not vest until the happening of the event, as a condition precedent, of a recovery in one of the suits mentioned; whereas deeds of trust usually convey the interest in presenti; but in neither form can the trustee foreclose the equity of redemption, until the condition in the deed is forfeited, and then, only in the way hereinafter mentioned.

2. If the court shall decide that the vesting of the interest in Nowlin did not depend upon the event, as a precedent condition, mentioned in my first point, but shall decide that the interest vested at the time the deed was made, then I insist, that in either point of view, the power to sell the land is a conditional power, and that Nowlin had no right to exercise that power until the happening, as a condition precedent, of the aforesaid event; or upon the further condition mentioned in the deed, viz: that Hartt should fail to make title to the said Turner to said land, or fail to keep said Corum and Edwards indemnified against damages and costs in said two suits, or cause them by his acts to be entirely released from their said liability as his said securities in said bond.

3. If the sale by Nowlin to Compton had been a sale o the northwest quarter, instead of the southeast quarter of section No. 35, in order to have thereby passed the title of Hartt to the land so sold, the trustee, Nowlin, was bound to observe and pursue, strictly and literally the conditions and provisions of the deed; and that, if the sale were made before the happening of the event, upon which his right to sell depended; or if he sold it before he sold the tract first charged with the hurthen, as specified in the deed; or if the sale were made without having advertised the same for sale as required by the deed, then such sale would have been made without authority, and would have been void and have passed no right or title to Compton in the land, even though he had received, at the time of such purchase, a conveyance from Nowlin of the land. And, in order to recover in this action the land in controversy, it devolves upon the plaintiff to prove and not upon the defendant to disprove that the sale by Nowlin, under which he claims, was made in conformity to the conditions, &c., mentioned in the deed of trust. See 2 Sugden on Powers, ch. 18, pp. 268, 269 and following (top paging), and the authorities there referred to: 4 Kent; 1 Mo. R. 520; 7 Johns. 217, 226; 2 Pirtle's Dig. 91, title Mortgage and Mortgagee, § 36; 3 Litt. 410, Ormsby v. Tarason; Story on Agency, §§ 164, 165; 4 Wheat. 79, Williams v. Peyton; 4 Cond. R. 395; 6 Wheat. 119; 5 Cond. R. 28; 4 Cranch, 403; 2 Cond R. 151.

4. The deed of conveyance from Nowlin to Compton, dated on the 8th day of July, 1836, clearly and explicitly shows that Nowlin thereby intended to convey to Compton the southeast quarter of section No. 35, and not the northwest quarter of that section; and that it was his intention, thereby to consummate a sale of that identical tract, that is to say, the said southeast quarter which he had advertised publicly for sale, and sold on the 2nd day of August, in the year 1825, together with some two or three hundred other acres of land, for the price of two dollars to said Compton; and as the tract, specifically and plainly advertised and sold, is with certainty identified in the deed, it is not competent for the plaintiff, by evidence aliunde, to strike out the southeast quarter, and insert in its place in the deed, the northwest quarter of the section. The false affirmations in the deed, stating that the land described therein includes a part of the town of Boonville; when, in fact, it includes no part of the town--that it is a fractional quarter, when, in fact, it is not fractional, and that the sale of the quarter, so sold and described, was made by him, Nowlin by virtue of the deed of trust, when, in fact, the deed of trust gave him no right or power to sell it, do not tend to prove in the slightest degree, that the advertisement and sale was not of the identical tract designated in the deed, as the southeast quarter of the section. On the contrary, these statements only show (taken in connection with the proof of the facts as they exist), that the land sold does not include any part of the town--that the quarter sold is not fractional, but a full quarter; and that, in fact, the sale of this quarter was not made by virtue of any right or authority in the deed of trust, for the deed gives him no such right or power. So that, I insist, that all these affirmations in the deed are made with a view, not to falsify the truth of what is certainly described as the quarter sold, but with a view to give greater certainty to the same identical quarter sold, and being false, are to be disregarded. Now, if Nowlin by his deed to Compton had stated, as the subject of the advertisement, that he had advertised and sold on the 2nd day of August, 1825, all the right, title and interest of George C. Hartt in ““the Boonville tract,” consisting of three and one-half eighths thereof, and that this, “the Boonville tract,” included within it, the whole or any part of the southeast quarter of section 35, or that the court-house in the town, or any other building or thing was situate thereon, when, in fact, these were false statements, still the sale so made of “the Boonville tract” would carry his interest, &c., in this tract as “the Boonville tract” by its name and description specified in the deed. I insist that in the interpretation of the deed, the court is bound to take its clear and explicit language, and not what is in the country that contradicts the language, to ascertain what was intended to be sold and conveyed. To do this, where the meaning from the terms of the deed is clearly expressed, would be to give greater effect to parol evidence than to written; and, in fact, would be to establish a rule by which creditors and purchasers would be bound to look outside of a deed to know what it conveys, or was intended to convey by the party that made it. This rule never can obtain where there is no latent ambiguity in the instrument. I insist that General Smith, the judgment creditor, and Adams, who purchased under the execution upon this judgment, had a right to know at the time of the levy and the execution sale, whether the land had been sold by Hartt, the debtor, or by Nowlin, the trustee, and that they were not bound to go beyond the recorder's office to ascertain that the land sold under the execution (viz: the northwest quarter), had not been sold by Hartt or by Nowlin. I insist, that neither Smith nor Adams, was bound to go and survey the southeast quarter which was sold by Nowlin, to ascertain whether the whole or any part of the northwest quarter of the same section was within the southeast quarter, nor were they bound to survey the town of Boonville to ascertain whether any part of the town was included within the tract sold by Nowlin to Compton, in order to ascertain whether the northwest quarter could be sold to satisfy the judgment, and in which quarter, Hartt then had, at least, an equity of redemption. I insist, further, that the very fact that the sale of the southeast quarter to Compton, for the price of fifty cents, is a circumstance which conduces, strongly, to show that Nowlin knew at the time of the sale, as well as Compton, that he, Nowlin, had no right or power under the deed of trust to sell this quarter section, and hence, it was sold and purchased for nothing at this sale. But if, upon any possible ground whatever, the deed from Nowlin to Compton, for the southeast quarter of section 35, by construction, can be tortured to mean that the sale was of the northwest quarter of that section (the land in controversy), by reason of its stating that “it included a part of the town of Boon ville,” when it...