De Lassus v. Winn

• Decision Date: 31 March 1903
• Citation: 74 S.W. 635,174 Mo. 636
• Parties: DE LASSUS v. WINN.
• Court: Missouri Supreme Court

74 S.W. 635

174 Mo. 636

DE LASSUS v. WINN.

Supreme Court of Missouri, Division No. 2.

March 31, 1903.

EJECTMENT — LEGAL TITLE — PATENT — ENTRY — EQUITIES — DEEDS — RECITALS — RECORD — NEW TRIAL — NEWLY DISCOVERED EVIDENCE.

1. A patent is a better legal title than an entry.

2. Recital in a deed by a husband that he is trustee for his wife is at most mere evidence of an equity in her.

3. In ejectment plaintiff cannot enforce any equities which she may have against a grantee in good faith holding the legal title.

4. The record in L. county of a deed to land lying in S. county was inadmissible to show constructive notice in subsequent purchasers in S. county.

5. In ejectment, verdict having been rendered for defendant, a new trial for newly discovered evidence consisting of certain deeds to plaintiff was properly refused where it appeared that plaintiff's attorneys knew of their existence before the trial, and also that, if offered, they would have carried no notice to defendant, who was an innocent purchaser without actual or constructive notice of plaintiff's rights.

Appeal from Circuit Court, Schuyler County; E. R. McKee, Judge.

Ejectment by Marie Jeane B. De Lassus against Francis M. Winn. Judgment for defendant. Plaintiff appeals. Affirmed.

This is an action of ejectment for the south half of the southwest quarter of section 8, township 64, range 13, in Schuyler county, Mo. The suit was commenced October 1, 1898. The answer is a general denial and the further plea that defendant bought the land in 1883 in good faith, received a warranty deed therefor, and had made lasting and valuable improvements thereon, and paid all taxes, and praying for an accounting for the value of said improvements and taxes if plaintiff should recover. The cause was tried in 1899, and judgment was rendered for defendant. Plaintiff appeals.

Plaintiff introduced in evidence the government platbook of entries showing the names of August D. De Lassus and Marie J. B. De Lassus on this tract of date July 2, 1855. Plaintiff then offered evidence of Placide De Lassus to the effect that August De Hauet De Lassus was his father, and husband of the plaintiff, Marie, and that said August died in January, 1889; that plaintiff lived in Paris, France, and had lived there since 1848, apart from her husband; that said August was trustee for his said wife for certain lands conveyed to him by Papin. There was no evidence that the land in suit was ever conveyed to August by Papin, and there is no legal evidence that August ever held title to this land in trust for his wife, Marie, the plaintiff. Defendant had been in possession for more than 10 years before this action was commenced. Plaintiff's claim was that by virtue of the entry she and her husband, August, were tenants by the entireties. This was the case made in chief. The defendant then read in evidence the patent from the United States to Charles De Hauet De Lassus or his legal representatives to the land in suit under the act of Congress of July 4, 1836, issued February 3, 1858. This patent recites a relocation on account of conflicts of previous sales and locations and reservations for school lands in section 16, township 54, range 3, and section 16, township 55, range 4. These interferences and sales included 22,423.55 acres in surveys Nos. 13,083 and 1,684, but there is nothing to show where these surveys were. Gov. Chas. De Hauet De Lassus, the patentee, died about 1843, leaving August as his only son and heir at law. Defendant also read in evidence a sheriff's tax deed to August De Lassus and L. F. Cottey of date March 7, 1883; also a quitclaim by Cottey to said August of date April 28, 1883, and a warranty deed from August De Lassus of April 28, 1883, to defendant for the lands in suit. This deed in the premises recites that August De Hauet De Lassus, of St. Francois county, for himself and also as trustee for Marie J. B. De Lassus, is party of the first part, and Winn, the defendant, party of the second part. The covenants are all made by August De Lassus. The acknowledgment purports to convey the dower of said Marie. Winn, the defendant, testified that the land was brush land when he bought it in 1883; that he cleared it, and fenced it, and took actual possession that year, and has ever since remained in possession; that he bought it in good faith, believing he was getting a perfect title. Was informed at the time that August was the trustee for his wife, and empowered to sign her name. Never saw the platbook. Had no knowledge she claimed the land until this suit...