Mosely ex rel. Beach v. Hunter

• Court: Missouri Supreme Court
• Writing for the Court: GAMBLE
• Citation: Mosely ex rel. Beach v. Hunter, 15 Mo. 322 (Mo. 1851)
• Decision Date: 31 October 1851
• Parties: MOSELY AND WIFE, TO USE OF BEACH & EDDY, v. HUNTER.

15 Mo. 322

MOSELY AND WIFE, TO USE OF BEACH & EDDY,

v.HUNTER.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

The appellants on the 18th of August, 1848, instituted a suit in covenant, at the September term of the St. Louis Court of Common Pleas, and declared on a deed made by the appellee, dated May 2nd, 1846, to Ann M. Mosely, one of the plaintiffs. The deed was made in the State of Illinois, conveying for the consideration of $1,900, the following described land, situate in Illinois: south half section three, township six north, range eight west of fourth meridian, three hundred and twenty fifty-nine one hundredth acres; also ten acres, part of southwest quarter, section twenty-eight, township seven north, range eight west. The deed contained the words “grant, bargain and sell,” and also a covenant of warranty. The statutes of Illinois, to-wit: section 11, ch. 24 of the Rev. Stat. of Illinois, approved March 3rd, 1845, and in force at the time said deed was made, was set out in the plaintiffs' declaration, as follows: “All deeds, whereby any estate of inheritance, in fee simple shall hereafter be limited to the grantee and his heirs or other legal representatives, the words “grant, bargain and sell” shall be adjudged an express covenant to the grantee, his heirs or other legal representatives, to-wit: that the grantor was seized of indefeasible estate in fee simple, free from incumbrances, done or suffered from the grantor, except the rents, services that may be reserved, as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed. And the grantee, his administrators, executors and assigns may, in any action, assign breaches as if such covenant were expressly inserted, provided always, that this law shall not extend, to leases at rackrent, or leases not exceeding one-and-twenty years where the actual possession goes with the lease.”

The breaches assigned in the plaintiffs' declaration are: 1. That the defendant was not seized, at the date of said deed, of an indefeasible estate in fee simple in the lands conveyed. 2. That the said lands and premises were not free, at the date of said deed, from incumbrances done or suffered by defendant. The particulars averred, to sustain the second breach assigned, were, that part of said lands and premises, conveyed by said deed, viz: south half section three, township six north, range eight west, 320 acres, were, at the date thereof, incumbered by an attachment levied thereon, which attachment was sued out of the Hancock Circuit Court in the State of Illinois, in a certain suit instituted on the 11th day of June, A. D. 1845, by John F. Olney against said defendant and others, and which attachment was levied on said lands on the 27th day of January, 1846. Afterwards, in due course of law, judgment was rendered in the said Hancock Circuit Court, in said suit, in favor of said Olney and against said defendants, Hunter and others, at the May term thereof, 1846, and a special fieri facias awarded in conformity with the laws and statutes of that State, In virtue of said fieri facies, the sheriff of Hancock county sold the said lands so attached as aforesaid, to William L. Hamilton on the 31st of October, 1846, and issued his certificate to the purchaser. At the time of filing the declaration and affidavit in this suit, in the St. Louis Court of Common Pleas, an attachment was issued, and the effects of the defendant, Hunter, were levied upon under it. At the returm term, the defendant, Hunter, plead generally to the plaintiffs' declaration, defending the demand of the plaintiffs, in the words then authorized by statute. The issues were tried at the February term, 1851, of the Common Pleas, by the court, neither party requiring a jury. At the trial, the plaintiffs gave in evidence the deed of the defendant, conveying the lands, and containing the covenants mentioned in the plaintiffs' declaration.

The plaintiffs also gave in evidence the statute laws of Illinois, which by agreement of counsel, are to be read from the published statutes, without being copied into the record. It was stipulated by the attorneys that the whole of the testimony, offered by the plaintiffs, should be read and given in evidence, the defendant reserving the right to object to any of it for incompetency or irrelevancy. Under this stipulation, the plaintiffs gave in evidence a transcript of the record and pleadings, duly authenticated, of the suit by attachment in the Hancock Circuit Court, in the State of Illinois, wherein John F. Olney was plaintiff and Edward Hunter and others were defendants. This transcript shows, that the said suit was instituted, June 11th, 1845, and the attachment levied on part of the lands described in the defendant's deed, viz: on south half section three, township six north, range eight west, 320 acres, on the 27th January, 1846. The transcript also shows the rendition of a judgment in said suit in said court, at the May term thereof, 1846, in favor of plaintiff against defendant and others, for $110, and that awarding of a special fieri facias for the sale of said lands. It also shows that said lands were sold by the sheriff of Hancock county, under said fieri facias, on the 31st of October, 1846, as follows: The south half of section three, township six north, range eight west, was sold to William L. Hamilton. The plaintiffs also gave in evidence the deposition of D. E. Head, who testified the he was, at the time of testifying, clerk of the Hancock Circuit Court, Illinois, and had been such clerk since 1844; that he became recorder of deeds in Hancock county in 1849, and had been such recorder ever since, and was such at the time of testifying.

This witness testified in substance, that he knew the lands described in the defendant's deed and that he had examined the records of the recorder's office of Hancock county (where the title deeds of lands in that county required to be recorded) for the purpose of ascertaining the interest or title of Edward Hunter (the defendant) in said lands, and the witness annexed to his deposition, a written abstract of the title to said lands, duly attested by him, under the seal of his office. From this transcript made by the said recorder, D. E. Head, and annexed to his deposition as aforesaid, there does not appear any conveyance or conveyances from the patentees of said lands, under the government of the United States, to said defendant, Hunter, or to any party under whom he claims. The said witness also annexed to his deposition abstracts from the records of Hancock county, duly attested, of tax sales of lands in said county, from which abstracts it appears that all the said lands, described in defendant's deed, has been sold for taxes assessed thereon, and which sales were prior to 1840. The said abstracts show the description of the land; the year for which the taxes were assessed; the amount of the tax and to whom sold, in parallel columns. No evidence, except the statute laws of Illinois, was offered in connection with these abstracts, to show that the proceedings, preliminary to said tax sales, were regular and made in conformity with the laws of Illinois.

The plaintiffs also gave in evidence, a transcript or copy from the records of said Hancock county, of a deed made by the sheriff of said county to William L. Hamilton for the said south half of section three, township six north, range eight west of fourth meridian, being three hundred and twenty acres, which deed is dated March 24th, 1848. It recites the sale of the said half section of land to said Hamilton on 31st of October, 1846, under the said special fieri facias issued under the judgment in the suit of John F. Olney against Hunter and others, before mentioned; which deed was duly acknowledged and recorded in the said county, and said transcript or copy is duly certified by the recorder under his seal and duly exemplified.

The plaintiffs also gave in evidence a certificate of said sale made by said sheriff in conformity with the laws of Illinois, and which certificate recites said judgment, fieri facias and sale to said Hamilton, and that he would be entitled to a deed for said lands in fifteen months from the date of said sale, unless said lands were sooner redeemed. The certificate is dated October 31st, 1846, and the copy read in evidence is duly authenticated.

The plaintiffs also read in evidence a transcript of the record and proceeding of a suit in the Circuit Court of Hancock county, Illinois, wherein William L. Hamilton was plaintiff and George W. Mosely and Ann M. his wife (the plaintiffs in this suit) were defendants; which suit was in ejectment to recover possession of the south half of section three, township six north, range eight west of fourth meridian, and which suit was commenced April 17th, 1848. This transcript shows that such proceedings were had in said county in said cause; that at the September term, 1848, thereof, the plaintiff recovered judgment against Mosely and wife, and on the 14th February, 1849, took execution thereon and ejected said Mosely and wife from said premises.

All of the foregoing transcripts or copies from the record in Illinois appear to be duly exemplified in conformity to the acts of Congress providing for the exemplification of records, &c. The plaintiffs also gave in evidence the following patents, issued by the government of the United States, to-wit: One dated February 14th, 1818, issued to Zachariah Stoddard for the southwest quarter, section three, township six north, range eight west, in the tract appropriated for military bounties in the territory of Illinois; one dated February 4th, 1818, issued to John Story for southeast quarter of section three, township six north, range eight west, in the tract appropriated for military bounties in the territory of Illinois; and one dated July 1st, 1818, issued to Walter H....