McKinney v. Settles
| Decision Date | 31 March 1862 |
| Citation | 31 Mo. 541 |
| Parties | JAMES H. MCKINNEY, Plaintiff in Error, v. JAMES H. SETTLES et al., Defendants in Error. |
| Court | Missouri Supreme Court |
1. To constitute a conveyance, there must be sufficient words showing an intention to grant an estate.
Appeal from St. Louis Circuit Court.
This was an ejectment originally instituted in Lincoln county, September, 1846, but afterwards removed, by change of venue, to St. Louis circuit court.
The appellant, who was the plaintiff below, claimed title under the following instrument of writing or deed, to wit:
“Know all men by these presents, that I, John McKinney, of Bourbon county, Kentucky, do also hereby sign over to my well beloved son, James Harvey McKinney, all my right, title, claim, interest, and demand of, in, and to a certain tract of land, containing three hundred and fifty arpens (equal to about two hundred and ninety-eight acres) of land, lying in Montgomery county, state of Missouri, and on a creek called Ramsey's creek, a branch of Mississippi, including Jonathan Bryan's improvement, which said tract of land I bought of Moses Rinney, and the same is confirmed by government, and the papers forwarded to government for a patent right; and as soon as the patent right and other necessary papers are obtained for making a more complete title or deed for the same, I do hereby bind myself and my other heirs to make to my said son, James Harvey McKinney, and his heirs, a good, sufficient right and title to the said described tract of land, clear from me or any of the rest of my heirs; to be the whole, sole, right and property of my said son, James H. McKinney, and his heirs, forever; and for the true performance of this my true desire and wish to be punctually performed so soon as the same shall become legally in our power to be done, I bind myself and all the rest of my heirs to my said son, James H. McKinney, and his heirs, in the just and full sum of six hundred dollars.
In testimony whereof, I have hereunto set my hand and seal, this 23d day of October, 1823.
JOHN MCKINNEY. [SEAL.]”
Attached to the above deed is this memorandum:
“N. B.--Whereas, there is near about two thousand acres more not yet divided among my said heirs, I allow my said son, James H. McKinney, to have twenty-two acres more added to his two hundred and ninety-eight acres in his second divide, or as to make his out equal to three hundred and twenty acres, which will make the above division nearly equal in value, &c. And I do hereby ordain these above or foregoing divisions (to save costs and trouble) to be a codicil or supplement to my last will and testament; as witness my hand and seal the 23d October, 1823.
JOHN MCKINNEY. [SEAL.]”
The above deed, together with five others of the same date and purport, for different tracts of land to five other children of John McKinney, were written on two sheets of paper attached together, and called in this suit Exhibit A.
On the second sheet appears this acknowledgment:
“Kentucky, Bourbon county, October.--This day John McKinney appeared before us, two of the acting justices of the peace for said county, and acknowledged the foregoing deeds of gift to Polly McPheters, Patsey McPheters, and Clarissa H. Montgomery, Sally Dawson, and John C. W. McKinney, and James H. McKinney, to be his act and deed.
Given under our hands this 23d October, 1823.
HENRY TIMBERLAKE,
BOON ENGELS.”
The case in the court below resulted, at the November term, 1852, in an agreement, to wit:
“It...
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State v. Underwood
... ... [86 P.2d 722] ... absence of such words indicating an intention to divest and ... invest title the decree cannot have that effect. McKinney ... v. Settles, 31 Mo. 541; Washburn on Real Property, Sec ... 2087." The authorities cited in Coffman v. Gates merely ... hold that in order to ... ...
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Howell v. Sherwood
...grantee to secure the same in presenti then the instrument is a deed, and conveys legal title. Linville v. Greer, 165 Mo. 380; McKinney v. Settler, 31 Mo. 541; Devlin Deeds (2 Ed.), secs. 174, 211; Long v. Wagoner, 47 Mo. 178; Jennings v. Brizeadine, 44 Mo. 335; Brunsmann v. Carroll, 52 Mo.......
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Howell v. Sherwood
...Missouri cases, not one of which are in point or even discuss the question: Linville v. Greer, 165 Mo. 380, 65 S. W. 579; McKinney v. Settler, 31 Mo. 541; Long v. Wagoner et al., 47 Mo. 178; Jennings v. Brizeadine, 44 Mo. 332, loc. cit. 335; Bruensmann v. Carroll, 52 Mo. 313; Fosburgh v. Ro......
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...Tiedeman on Real Property, sec. 799; Robinson v. Claggett, supra; Turner v. Williams, supra; Chapman v. Templeton, supra; McKinney v. Settles, 31 Mo. 541. (c) Plaintiff no notice of the pretended unrecorded sale from Stephen W. to J. C. Morehead, and it was a nullity as against the plaintif......