Martin v. Joneson
| Decision Date | 28 February 1875 |
| Parties | J. G. MARTIN, AMANDA WILLIAMS, EDWARD GLOVER, et al., Defendants in Error, v. GEORGE W. JONES ROBERT AUSTIN, AND PATRICK MCCARTY, Plaintiffs in Error. |
| Court | Missouri Supreme Court |
Error to Carroll Circuit Court.
Hale & Eads, for Appellants.
L. H. Waters, for Respondents.
This action was originally brought by one Parmenius Williams against the defendants, to restrain and enjoin the defendants Austin and Jones from proceeding with the sale of certain lands under a deed of trust named in the petition.
During the pendency of the suit and after issues were joined in the case, the said Parmenius Williams departed this life, and the present plaintiffs, who are the heirs and representatives of said Williams, were made plaintiffs in his stead.
The petition states that the defendant Patrick McCarty, in the month of July, 1868, was the owner of the north west quarter of the south east quarter of section thirty-three, in township fifty-two, of range twenty-four in Carroll county, Missouri; that said McCarty, at said time by his deed of that date, conveyed to plaintiff the north half of said tract of land in fee simple; and that plaintiff took immediate possession of said north half of said land as aforesaid, and made permanent improvements thereon, and that plaintiff is still the legal owner of said north half of said tract of land; but that the deed conveying said land from McCarty to plaintiff although delivered, had never been acknowledged or recorded; that after the making of said deed by McCarty to plaintiff, and after plaintiff was in possession of the north half of said tract of land, in pursuance of said deed or conveyance on the 25th day of May, 1869, said McCarty executed and delivered to the defendant George W. Jones, a deed commonly called a deed of trust, by which he conveyed to said Jones the whole of the first described tract of land including the north half thereof previously conveyed to plaintiff; that said conveyance was made to Jones in trust to secure a debt, due from McCarty to defendant Austin, and was conditioned that if default was made in the payment of said debt, Jones should have power to advertise and sell said lands as directed in said deed of trust; that default had been made and said Jones was then, at the request of said Austin, proceeding to advertise and sell the whole of said forty acre tract of land and would sell and convey the same unless restrained therefrom; that at and before the execution of said deed of trust to said Jones for the benefit of said Austin, both Austin and Jones had full notice that the north half of said forty acre tract of land had been conveyed to plaintiff and that he was in the possession of the same. It is therefore prayed by the petitioner, that the deed of trust be canceled and made void as to the said north half of said tract of land and that defendant Jones be restrained and perpetually enjoined from proceeding to sell said part of said tract of land by virtue of said deed of trust, etc.
A temporary injunction was ordered on this petition and the defendant Jones notified to appear in the Circuit Court, etc.
The defendants afterward appeared in the Carroll Circuit Court and filed a joint answer to said petition and moved to dissolve the temporary injunction.
The answer of the defendants denies that defendant McCarty, on the -- day of July, 1868, was the owner of the land named in the petition, or that he on said day conveyed the north half of said tract of land to the plaintiff, or that plaintiff took possession or improved the same, or that he is now the owner of any part thereof. It is admitted that at the time named in the petition, the defendant. McCarty, being then the owner of said forty acres of land, conveyed the whole thereof to defendant Jones by deed of trust, as it is charged in the petition; but it is denied that either said Jones or said Austin had any notice or knowledge that plaintiff had any claim to the premises. It is admitted that Jones is empowered under the deed of trust to sell the whole of said forty acres of land, and that he and Austin were proceeding to sell said land under said trust deed, and had advertised and would sell and convey the same under said deed of trust as well the north half of the same as all other parts thereof if not restrained therefrom.
The case was tried upon the issues thus made in the Circuit Court of Carroll county on the 31st of July, 1872.
It appears from the bill of exceptions in the record that on the trial it was admitted by the parties to the suit, that at the sale of the swamp lands of Carroll county in July, 1868, Patrick McCarty (one of defendants) became the purchaser of the forty acres of land described in the petition; and afterwards received a deed from the county for the same. This deed as set out in the record is in the usual form, reciting that McCarty had made full payment for the land, and is dated the 7th day of September, 1869.
The bill of exceptions further shows that the plaintiff then introduced in evidence, without objection, a deed, signed by said McCarty to Parmenius Williams, for the north half of said 40 acres of land, dated July, 1868, which was proved to have been executed by McCarty subsequent to the purchase by him from the county of Carroll. This last named deed is not set out in the bill of exceptions, the clerk noting in the record that it had not been furnished by the parties so that he could copy it in the bill of exceptions. No point is made or objection taken to the omission to copy this deed in the bill of exceptions.
The plaintiff then proved by witnesses that said Parmenius Williams (the original plaintiff) entered into possession of the 20 acres of land conveyed to him and cultivated and improved the same...
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...This court on several occasions has made similar rulings where the title to land, in one form or another, was in issue. Thus in Martin v. Jones, 59 Mo. 181, where one McCarty had sold and conveyed land to one Williams, and afterwards conveyed the same by deed of trust to Jones as trustee fo......
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Lieber v. Lieber
...This court, on several occasions, has made similar rulings where the title to land in one form or another, was in issue. Thus, in Martin v. Jones, 59 Mo. 181, where one McCarty sold and conveyed land to one Williams, and afterwards conveyed the same by deed of trust to Jones as trustee for ......
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