Heirs of M.M. Kirk v. Heirs of Green

• Decision Date: 31 July 1846
• Citation: 10 Mo. 252
• Parties: HEIRS OF M. M. KIRK v. HEIRS OF JOEL H. GREEN.
• Court: Missouri Supreme Court

10 Mo. 252

HEIRS OF M. M. KIRK

v.HEIRS OF JOEL H. GREEN.

Supreme Court of Missouri.

July Term, 1846.

APPEAL FROM COOPER CIRCUIT COURT.

HAYDEN & ADAMS, for Appellants. 1. That the legal right to the land in dispute, being located in virtue of the act of Congress of the 17th February, 1815, is vested in the person who was the legal owner of the land, in lieu of which the location was made, at the time of the grant of the certificate of new location--and that in this case, Coxe, the confirmee of the land, was not the owner thereof, at that time, having previously sold the same to Edward Robertson, senior, who had sold the same to other persons, to whom Coxe had conveyed it. See 5 Mo. R. 147, Wear & Hickman v. Bryant; act of Congress of 17th February, 1815. These alienees were his “legal representatives,” and entitled to the land located as such representatives. 2nd. That the Circuit Court erred in excluding from the jury the evidence which was given and offered by defendant, conducing to show that Coxe had parted with his interest in the land in New Madrid, to Edward Robertson, senior, and others, prior to the obtaining of the certificate of new location, and of the making of said location--and that having so parted with his said interest, he had no interest, legal or equitable, in the land in dispute; and that to entitle the plaintiff to recover in this action, it devolves upon him to show that he has a legal or equitable right to the land. See the above mentioned authorities, and the act of the 11th February, 1839, entitled “An Act to amend an Act to regulate the action of Ejectment.” 9 Mo. R. 714, Montgomery and Wife v. Landusky. 3rd. That the court erred in rejecting from the jury the evidence given them by defendant, conducing to show that he was the owner and possessor of the land in dispute under and by virtue of the purchase thereof by Kavanaugh for the taxes due upon it. 4th. That the court erred in permitting the plaintiff to read to the jury the deed, accompanying the depositions of Medley and wife, and the deed accompanying the depositions of Wm. Hendricks and Luraney Norman, which will be found at pages 7 and 10, of the record--and especially those parts thereof between figures 1 and 2, as marked in the record, at page 11. 5th. That the court erred in suppressing the depositions of Dawson, and others, filed in the cause by defendant--and also in not suppressing the depositions of Medley and wife, and others, taken and filed in the cause by plaintiff. See 4 Mo. R. 118, Dobbins v. Thompson. 6th. That the court erred in overruling the motion of defendant for a new trial of the cause.

LEONARD & DAVIS, for Appellees. 1st. The plaintiff showed a prima facie right of recovery. Rev. Stat. title Ejectment, § 2; Wear and Hickman v. Bryant, 5 Mo. R. 147. 2nd. All the deeds from Coxe offered in evidence by the defendants, were properly excluded--because they did not show, either, First: An outstanding legal title, recognized as such by the common or statute law of the State; or, Second: An equitable title in the defendant within the act of 11th February, 1839--concerning the action of Ejectment. Laws of 1838 and 1839, page 40. 3rd. The deed from Spears to Gray was wholly irrelevant. 4th. The testimony of Wallace, that he procured the New Madrid certificate and made the location for Gray, was rightly excluded. Wear and Hickman v. Bryant, 5 Mo. R. 147. 5 th. The evidence offered to make out a title under our revenue laws was altogether insufficient for that purpose, and therefore properly rejected. Revenue Law of 12th December, 1820 (printed in 1 Edward's Laws of Missouri, 731), § 20; Reeds v. Morton, 9 Mo. R. 870.

SCOTT, J.

This was an action of ejectment brought by Green v. Kirk, for the recovery of a tract of land in Cooper county. Green obtained a verdict and judgment, and the court having refused Kirk a new trial, he has brought the cause to this court.

William Coxe was the owner of a tract of land in New Madrid county,...