Matney v. Graham

• Decision Date: 31 August 1872
• Citation: 50 Mo. 559
• Parties: JAMES A. MATNEY, Respondent, v. FRANCIS GRAHAM et al., Appellants.
• Court: Missouri Supreme Court

50 Mo. 559

JAMES A. MATNEY, Respondent,

v.FRANCIS GRAHAM et al., Appellants.

Supreme Court of Missouri.

August Term, 1872.

Appeal from Buchanan Circuit Court.

B. F. Loan, and F. Van Waters, for appellants.

I. The sheriff's deed read in evidence to the jury should have been excluded. 1. No notice of the sale of said property had been given as required by law, because the notice was not published in the Union as recited in the deed, and because the notice published in the Volksblatt stated that the sale would take place during the session of the Circuit Court, when in fact it was made, as recited in the deed, during the session of the Buchanan Court of Common Pleas. 2. Because the recitals in the deed, showing the manner and place in which the notice of sale were given, were material parts of the deed upon which its validity depends, and when these recitals are shown to be untrue, it is incompetent to show by parol evidence that notices had elsewhere been given and in a manner different from those recited in the deed, for the purpose of upholding the deed.

II. The death of Noble, without descendants capable of inheriting, being conceded, the election of his widow, Catharine Noble, to be endowed under the third section of the act relating to dower, in the Revised Statutes of 1845, prima facie vested in her in fee simple an undivided half of all the real estate of which William Noble was seized in Buchanan county at the time of his death. (Welch v. Anderson, 28 Mo. 299; Hamilton, Adm'r, v. O'Neil, 9 Mo. 18.)

III. The second instruction asked by the plaintiff should have been refused. (See act relating to dower, R. C. 1845; Welch v. Anderson, 28 Mo. 293; Hamilton, Adm'r, v. O'Neil, 9 Mo. 10.)

Vories & Vories, Ringo, and Hill & Carter, for respondent.

I. William Noble's will was properly admitted in evidence. The law organizing a Probate Court in Buchanan county does not require that the admission to probate of a last will shall be entered on an order book. But it is required by section 2 of article II of said law that the judge of probate shall make, keep and preserve a complete record of all wills, testaments and codicils, and the proof thereof, all letters testamentary, etc. (Sess. Acts 1850, p. 515, art. II, § 2; id. 516, § 9.) It was out of this complete record that we read the will and other evidence. (Wagn. Stat. 1367, §§ 25-28, 33, 34.) These are the same as in the statutes of 1855.

II. The court properly admitted evidence to show that the notice of sale had been given in the Herald in place of the Union newspaper, as recited in the sheriff's deed by mistake. The sale was in fact advertised as the law directs, in two newspapers and for the time required. The deed is good on its face, but there was a mistake made in the recital as to the paper in which the notice was published. This was not material. (Wagn. Stat. 609, § 42; Buchanan v. Tracy, 45 Mo. 437.) It made no difference that the advertisement in the German paper mistakenly stated that the Circuit Court would be in session on the day of sale. This could mislead no one. The statute does not require that the advertisement should state that any court should be in session; it is only necessary to state the time and place of sale, and describe the property to be sold. So that the property is actually sold on a day when the court is in session, it is sufficient. (See authorities supra.)

III. The second instruction was properly given. The election of the widow of Noble to be endowed of one-half of the land in place of one-third, did not make her a joint-tenant of Johnson, the devisee. Her right was only that of a doweress before assignment of dower, and she had no legal title in the land entitling her to possession until her dower had been assigned, and there was no evidence to show that it had ever been assigned or ever attached on the land in controversy. (McClanahan v. Porter, 10 Mo. 751; Applegate v. Smith, 31 Mo. 166; Orrick et al. v. Pratt, Adm'r, 34 Mo. 226; Waller v. Mardus, 29 Mo. 25; Maguire v. Riggin, 44 Mo. 515; McDonald v. Schneider, 27 Mo. 410.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought his action of ejectment in the court below, and had judgment for the possession of the lot in controversy. The objections urged here by appellants are mostly to the rulings of the court in the admission of evidence. It will be unnecessary to notice them all, as some of them are purely technical and devoid of merit.

The point that the sheriff's deed was inadmissible in evidence because its recital was that the notice of the sale was published in the Union, when in fact it was published in the Herald, we do not think is sustainable. It was obviously a clerical error, and is not such a substantial misrecital as will destroy the effect of the deed. (Stewart v. Severance, 43 Mo. 322.)

That the notice was published the requisite length of time is, I think, very clear, and that it was published in a newspaper in compliance with law is undoubted. And the same is true in reference to the diversity of statement in the respective publications in the German and English newspapers. The statement in one that the sale would take place while the Circuit Court was in session, and in the other during the session of the Common Pleas, was not such a mistake as would invalidate the sale. The notices were regular as to time and place. They imparted full information to all who desired to bid, and a sale when either court was in session was equally legal. There was no error of substance, and no person could have been misled by the inaccuracy.

It is also insisted that...