Hempstead v. Easton

• Decision Date: 31 October 1862
• Parties: CHARLES S. HEMPSTEAD, Respondent, v. ALTON R. EASTON, Appellant.
• Court: Missouri Supreme Court

33 Mo. 142

CHARLES S. HEMPSTEAD, Respondent,

v.ALTON R. EASTON, Appellant.

Supreme Court of Missouri.

October Term, 1862.

Appeal from St. Charles Circuit Court.

John Bte. Savoye owned a tract of land, being a part of the Prairie Basse or St. Charles common field and domain, having a front of two arpens, and a depth of fifty-three arpens, surveys Nos. 221 and 222. Savoye died, having made a will, dated April 30, 1806, and bequeathed the tract of land above described to Helen Perrott and Felicité Perrott. Helen Perrott intermarried with Paul Denoyer, and said Felicité Perrott intermarried with one Joseph Corley. By deed dated November 8, 1820, but acknowledged before a justice of the peace for Montgomery county, in which they then resided, the said Paul Denoyer and Helen his wife conveyed their interest in the said tract of land to plaintiff, and by a subsequent deed dated October 3, 1828, and correctly acknowledged, Paul Denoyer and wife conveyed their interest in the said tract of land to William Russell, reciting therein that they had before sold their interest in forty arpens of the said tract of land to plaintiff. By a deed dated February 19, 1827, Joseph Corley and wife conveyed their interest in the said tract to William Russell, who by deed conveyed his interest in the said tract to Joseph G. Easton, who by deed dated June 10, 1844, conveyed to the defendant.

The petition prayed that the rights of the plaintiff and defendant in the said tract of land might be ascertained by the court, and a decree be made vesting in plaintiff that portion of the same to which he is entitled, and that partition be made.

At the trial the plaintiff offered a certified copy of the deed from Denoyer and wife to the plaintiff, to the admission of which the defendant objected as not properly recorded and not rightly certified, and that said deed did not pass the title of Helen Denoyer; which objection the court sustained, and rejected said deed and copy. The plaintiff then read in evidence the deed from Paul Denoyer and Helen his wife to Wm. Russell, bearing date October 3, 1828, duly recorded, which contained the following recitals:

“It is understood that the said grantors have heretofore sold to Charles S. Hempstead their right and title to forty arpens of the said tract of one hundred and six arpens above described.

It is further understood and agreed by the parties to this deed, for the consideration above mentioned, that the said Wm. Russell is perfectly acquainted with the right and title of the above named grantors to the above granted and conveyed tract of land and lot of ground, and that he receives the same at his own risk and hazard and without any recourse whatever, either in law or equity, to the said grantors, or their heirs or other representatives, should their title prove defective, or wholly fail.”

Upon the deed thus offered and the recitals therein contained, the court gave judgment in favor of the plaintiff for partition of the land. After partition, defendant appealed.

Whittelsey and H. A. Cunningham, for appellant.

1. The deed of Paul and Helen Denoyer to Hempstead, of November 8, 1820, was rightly excluded, and no title to the land in Hempstead was shown, as Helen Denoyer, in whom was the fee, had never conveyed the title. (1 T. L. 47; 1 T. L. 178, § 2 repealed, p. 420, § 82.)

A justice of the peace had no authority by law to take acknowledgments of deeds for lands not in his county. (1 Ter. L. 418; Act of Jan. 21, 1815; and 1 T. L. 178; Reaume v. Chambers, 22 Mo. 36; 18 Mo. 351; 1 T. L. 736.)

II. As by the pleadings the fee was in Helen, wife of Paul Denoyer, the recitals in the deed of Paul Denoyer and wife to William Russell, properly acknowledged to pass her real estate to the grantee, would not operate as a conveyance of forty arpens of land to C. S. Hempstead.

A femme covert since the introduction of the common law, can only convey in the method pointed out by statute. (Chauvin v. Wagner, 18 Mo. 351; Reaume v. Chambers, 22 Mo. 36; Jackson v. Stevens, 16 J. R. 110; Green v. Branton, 1 Dev. Eq. 500.)

III. The recitals in the deed of Paul Denoyer and wife to William Russell, of date of Oct. 3, 1828, do not convey any title in the land to C. S. Hempstead.

a. The deed itself does not purport to convey anything to Hempstead, but does purport to convey to Russell 53 arpens, being the undivided half of the land owned by J. B. Savoye, devised, etc., which was all the grantors had in the land. The recital, “It is understood that the said grantors have heretofore sold to Charles S. Hempstead their right and title to forty arpens of the said tract of 106 arpens above described,”is merely a notice of conveyance or sale, but is not of itself a conveyance.

b. The recital is not a conveyance to Hempstead by estoppel, as far as Russell and his assigns are concerned.

A femme covert is not estopped by the covenants of her deed, except so far as being executed in accordance with law; it passes her title, and she may claim a subsequently acquired title against the covenants. (Jackson v. Stevens, 16 J. R. 110; Jackson v. Vandersleiden, 17 J. R. 167; Urquart v. Clarke, 2 Rand. R. 549; Providence v. Manchester, 5 Mason, C. C. R. 59; Richards v. Randolph, 5 Mason, C. C. R. 115; 18 Mo. 551; 1 T. L. 757.)

c. Russell and his assigns are not bound by the recital, for they could deny their vendor's title and all the allegations of their deed poll. (Morse v. Elmendorf, 11 Paige Ch. R.; Maclot v. Dubreuil, 9 Mo. 447; Page v. Hill, 11 Mo. 148; Vasquez v. Ewing, 24 Mo. 31; Kingman v. Sparrow, 1 Comst. 242; overruling 2 Hill, 303, and 17 Wend. 164; Blair v. Smith, 16 Mo. 273; Osterhout v. Shoemaker, 3 Hill, 513; 8 Mo. 667.)

As Russell could deny his vendor's title, much more could he deny the recital in his vendor's conveyance.

That conveyance was produced and rejected as not conveying the title by virtue of which plaintiff asked partition. As it was admitted that Paul Denoyer and wife were both dead, there was no claim to a partition for a life estate.

d. Hempstead is neither party nor privy to the deed of Denoyer and wife to Russell, and thus cannot take advantage of any recitals in that deed. (2 Phil. Ev. 574, n. 476.)

Only parties and privies can take advantage of recitals and estoppels. (Cottle v. Snyder, 10 Mo. 764; Jackson v. Woodruff, 1 Cow. 276; Livermore v. Leonard, 16 Mo. 474; Eaton v. Coe, 2 John. 382; Griffin v. Richardson, 11 Ired. 439; Adams v. Barnes, 17 Mass. 365; Masure v. Noble, 11 Ill. 531; Doe v. Ewington, 6 Bing. N. C. 79; 2 Smith's L. C. Am. ed., 552.)

IV. The recital of a sale does not show what they had sold, whether an estate for life or in fee, or for years, nor does it attempt to make valid an invalid deed; apparently and consistently with the deed to Russell, they had sold an estate for life or years, and the recital was only made for the purpose of giving notice of the sale so as to avoid the penalty of the statute (1825, p. 290, § 40) upon those who made a deed of...