Hughes v. Hughes

• Decision Date: 31 October 1880
• Citation: 72 Mo. 136
• Parties: HUGHES, Plaintiff in Error, v. HUGHES.
• Court: Missouri Supreme Court

72 Mo. 136

HUGHES, Plaintiff in Error,

v.HUGHES.

Supreme Court of Missouri.

October Term, 1880.

Error to Audrain Circuit Court.--HON. G. PORTER, Judge.

REVERSED.

Thos. N. Musick for plaintiff in error.

M. Y. Duncan for defendant in error.

HENRY, J.

This is an action of ejectment for the recovery of the southwest quarter of section 35, township 52, range 7, lying in Audrain county. The answer is a general denial. There was a trial, which resulted in a judgment for defendant, and plaintiffs have brought the case to this court on a writ of error. Both parties claim title under the heirs of Lucy Modisett, deceased. The plaintiffs offered in evidence a warranty deed from six of the eight heirs, to Benj. N. Modisett, one of the heirs, conveying to him all their right and title to the west half of said quarter section. Lucy Skinner, the plaintiff, nor her sister Sarah, who together inherited one-eighth of said land, was a party to that deed. Benj. N. Modisett and wife conveyed said land to David W. Hughes, and it was afterward sold, under an execution against said Hughes, to Jacob Sosey, Granville Keller and the plaintiff, Andrew Spalding, who received a sheriff's deed therefor. Sosey and Keller subsequently conveyed it to Margaret Hughes, wife of her co-plaintiff, David W. All of the foregoing conveyances were made pending a suit for partition of said land in the Audrain circuit court, in which a portion of the heirs of Lucy Modisett were plaintiffs and all the heirs were parties. In that cause there was an interlocutory judgment of partition at the May term, 1857, and commissioners appointed to make partition of the land. On the 24th day of September, 1857, they made their report to the court, that it was not susceptible of division, etc. Next follows a report of sale made to the court by the sheriff, stating that, in accordance with an order of sale made by the court, he sold said land on the _____ day of November, 1858, to C. D. Modisett, who neglected to comply with the terms of sale. At the November term, 1857, of said court, it appears that a motion was filed by parties to the suit, to set aside said sale. What became of said motion does not appear, but at the April term, 1859, the curator of the estate of the Skinner children filed a motion to set aside said sale. No other entry occurs until the April term, 1863, when Frank Cave, late sheriff, makes report of the sale of said land under an order of the court to C. D. Modisett, who had failed to comply...