Meyer v. Campbell

• Citation: 12 Mo. 603
• Parties: CHARLES MEYER v. SARAH JANE CAMPBELL, PETER MCNIFF & JNO. BARNES.
• Decision Date: 31 October 1849
• Court: United States State Supreme Court of Missouri

12 Mo. 603

CHARLES MEYER

v.SARAH JANE CAMPBELL, PETER MCNIFF & JNO. BARNES.

Supreme Court of Missouri.

October Term, 1849.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

In this case, the plaintiffs below, appellees, brought their action of ejectment against the defendant. Both parties claimed through Samuel Hammond as the common source of title. To show title, plaintiffs offered in evidence: 1st. A judgment in St. Louis Circuit Court of Relf, Chew & Clark, dated August 30th, 1819, for $6,841 81 1/2, in which case a writ of error was taken to the Supreme Court, bail in error given, and the case continued from term to term. 2nd. A judgment of the Supreme Court, affirming the former judgment, dated May 22nd, 1823, and for costs. 3rd. An execution of fieri facias ca. sa, from the Supreme Court, for the sum of $6,877 43 1/2, directed to the sheriff of St. Louis county, dated May 28th, 1823. 4th. A sheriff's deed for the property in question to Relf & Chew, dated November 4th, 1823, recorded January 27th, 1824. 5th. Power of attorney from Relf & Chew to John O'Fallon, dated October 19th, 1848, with power to convey lands. 6th. Relf & Chew, by attorney, to J. Campbell, one-half of premises sued for, to Caroline Barnes one-fourth, to Eleanor McNiff for one-quarter--deed dated March 19th, 1845. Admitted that Peter McNiff is the husband of Eleanor McNiff; that John Barnes was the husband of Caroline Barnes, who died in May, 1845, and that there was issue born alive of the marriage. Monthly rents and profits also admitted, and damages at the same rate admitted since the commencement of the suit.

Defendant then offered in evidence--1st. A deed from Samuel Hammond and wife to Robert Wash, as trustee of the Bank of Edwardsville, dated May 1st, 1821, recorded August 23rd, 1821. This deed was acknowledged by Mrs. Hammond only before a justice of the County Court of Jefferson county, and was not acknowledged by Hammond at all. The deed was admitted subject to exceptions on the part of the plaintiffs. 2nd. Judgment in favor of T. McGill v. Bank of Edwardsville, of July 31, 1833, on publication, $914 17. 3rd. Sheriff's deed under said judgment to James Mason, dated January 4th, 1834, recorded January 9th, 1834. 4th. A judgment in favor of Stephen Wiggins against Samuel Hammond, April 26th, 1821. 5th. Sheriff's deed under said judgment to James Mason, dated January 4th, 1834, recorded January 9th, 1834, fieri facias issued 1833--levy 16th November, 1833, and sale 9th December, 1838. 6th. Decree of Circuit Court vesting title of Wash to the premises in James Mason, dated May 19th, 1834. No person representing the plaintiffs or their grantors, nor Samuel Hammond or his heirs, and Wash appeared and confessed the case. 7th. Deed from Robert Wash, under the decree to James Mason, dated May 19th, 1834, recorded June 7th, 1834.8th. Admitted that defendant holds by mesne conveyance from Mason. 9th. Robert Wash, called as a witness, testified, that he acted as trustee under the deed from Hammond; that the original was not in his possession; that he was passive in the matter; that he exercised no control over it, the property. That at the instance of Mason sales were made of the property in St. Louis and Jefferson counties. There were no buildings on the lot Mason directed me to sell, and I sold and made deed under the decree. I sold only under that decree, and in no other way. John B. Belcom called--testified that he had known the premises since 1812; knew Shope then; that there was a fence around it in 1820 and 1822; could not say whether Shope had it in possession or some one else. It was the same lot on which Shope lived. The house now on it was built by Lux some fifteen years ago. Joseph C. Brown testified that in 1835 he made surveys of the city, and that he was obstructed in fixing the corner of the block by the house now on it. The lot was inclosed in 1835.

It was admitted that the defendant and those under whom he claims, have been in actual possession since February 8th, 1836.

The plaintiff then offered in evidence the bill and answer in the case of Mason v. Wash & Hammond. This closed the evidence of the case, and the court, at the request of the plaintiffs, gave the following instruction, to the giving of which the defendant excepted.

The judgment of Relf, Chew & Clark, was a lien on the premises claimed in this cause, and the execution and sheriff's deed vested a title in Richard Relf and Beverly Chew, and which the jury believe has been regularly deduced from them to the plaintiffs, they are entitled to recovor.

The defendant then asked the following instructions, which the court refused, to which refusal the defendant excepted. 1st. That the deed from Hammond to Wash of May 1st, 1821, vested in Wash the legal title to the premises sued for in this action; and that no subsequent grantee or assignee of Hammond can maintain ejectment as against the grantee or assignee of Wash, and therefore the plaintiffs claiming under a judgment against Hammond, of May 22nd, 1823, and a sale under that judgment, are not entitled to recover. 2nd. The deed of Hammond to Wash, of May 1st, 1821, if true and genuine, gave to Wash, and those claiming under him, the constructive possession of the premises sued for, and against this constructive possession nothing can avail the plaintiffs but an actual possession adverse to Wash and those who claim under him. 3rd. The plaintiffs cannot maintain their action, unless it appear from the evidence that the plaintiffs, their ancestors, predecessors or grantors, were seized or possessed of the premises in question within twenty years before the commencement of this action. 4th. The plaintiffs cannot maintain their action, unless it appear from the evidence that the plaintiffs, their ancestors, predecessors, grantors, or persons under whom they claim, were seized and possessed of the premises within ten years before the commencement of this suit. 5th. The deed from Hammond to Wash of May 1st, 1821, conveyed to Wash the legal title, and the judgment in the Supreme Court of May 22nd, 1823, and the sale under the same, conveyed no title upon which the plaintiffs can maintain an ejectment. 6th. Under the evidence offered in this case, the plaintiffs are not entitled to recover. 7th. It being admitted by both parties that Samuel Hammond had the legal title to the lot in question, the deed from Hammond and wife (a copy of which has been given in evidence) vested the legal title to the lot in Robert Wash. 8th. The legal title to the lot in question, if the same was vested in Robert Wash by the deed, a copy of which was in evidence, was not divested out of said Wash by the sheriff's deed to Relf & Chew, given in evidence by the plaintiffs. 9th. The judgment of the Circuit Court of St. Louis county in favor of Relf, Chew & Clark, against Hammond, after the same had been affirmed by the Supreme Court, might have been legally executed by writ of execution issued from said Circuit Court, if the plaintiff had chosen to seek that remedy. 10th. The lien of the Circuit Court, and the judgment of the Supreme Court in the case of Relf, Chew & Clark against Hammond, are separate and distinct; and an execution sale of the land under one of these judgments, cannot hold the land by force of the lien of the other judgment.

The jury found a verdict for the plaintiffs under the instruction of the court, and the defendant filed his motion for a new trial, which was overruled by the court, and the defendant excepted, and brings the case to this court by appeal.

BATES, for Appellant.

1. There was no judgment of the Supreme Court to warrant the execution and sale. It was not a judgment of recovery of debt or damages, but a judgment of affirmance only, with no award of execution but costs. 2. But if execution could issue for debt or damages on such a judgment, still that judgment bearing date May 22nd, 1823, could not overreach and destroy the conveyance from Hammond to Wash of May 1st, 1821, for the liens of the judgment of the two courts are distinct. 3. The execution under which the sale was made was void. It is not only for a wrong sum, but there does not appear to have been any such judgment as is therein recited. 4. But supposing the judgment, execution and sheriff's deed to Relf & Chew, to be unimpeachable, still two of the plaintiffs, McNiff and Barnes, obviously have no title. They claim as tenants by the curtesy, by deeds made to their wives respectively, by Relf & Chew, on the 19th of March, 1845, whereas the record shows that the defendant and those he claims under, were in the actual adverse possession so long ago as the 10th February, 1836, and over since. And to Mrs. McNiff and Mrs. Barnes were never elised, and therefore there can be no tenant by the curtesy. 2 Blacks. Com. 127. 5. As to instructions refused and given, the defendant asked ten, all of which were refused. Some of them were so obviously legal and right, that the error of refusing them will appear without argument. They need only be read. The plaintiff below asked only one instruction, which covered the whole case. It was given and is in the following words: “The judgment of Relf, Chew & Clark was a lien on the premises claimed in this cause, and the execution and sheriff's deed vested a title in Richard Relf and Beverly Chew, and which, if they believe has been regularly deduced from them to the plaintiffs they are entitled to recover.” This instruction is wrong for many reasons, only a few of which will be noted here. 1. It assumes that the judgment of the Supreme Court on which the execution issued was a lien so as to overreach the anterior deed from Hammond to Wash, whereas by the statute, the judgment was only a lien from its date. Acts 1822, pp. 15, 61; 1 Ter. Laws, 855. It assumes and decides the regularity, sufficiency and mutual conformity of the judgment, the execution and the sheriff's deed. In short, it decides everything for the jury but one point, and...