Newman v. Studley

• Decision Date: 30 June 1838
• Citation: 5 Mo. 291
• Parties: JONAS NEWMAN v. NATHANIEL C. STUDLEY.
• Court: Missouri Supreme Court

5 Mo. 291

JONAS NEWMAN

v.NATHANIEL C. STUDLEY.

Supreme Court of Missouri.

June Term, 1838.

G. A. BIRD, for Plaintiff. 1. The copy of the deed read in evidence was no evidence of defendant's title, because there was no proof of the execution of the original. 2 Mo. R. 148; Strother v. Christy, 2 Peters' Cond. R. 28. 2. Because there was no proof of its loss. 2 Peters' Cond. R. 28; ib. 173. 3. Because said deed was never recorded with the recorder of St. Louis county. 4. Because, admitting said deed to have been duly executed and its loss established, the sale to Penrose being a public sale, was not made in pursuance of law, and passed no title. Under the third point we referred to acts of Missouri of 1804 and 1817, pp. 127, 129, 130, and last Revised Laws, p. 123. Decisions were read from New York and Massachusetts, showing that the courts there had held unregistered deeds good against subsequent registered deeds, if the subsequent purchaser had had actual or implied notice, and that court had established different rules as to what should be notice, and we contended that our statutes had declared that actual notice was necessary to establish the validity of the prior unregistered deed against the subsequent registered one. As to the fourth point, we insisted that the sheriff's sale was made after the act of 3d July, 1807, (in force 1st September, 1807) was in force, and referred to the act, §§ 62, 63, 71, 72, 73, Geyer's Digest, pp. 266, 267, 269. We insist that the statute repeals all prior laws relating to sale of lands on execution after 1st September, 1807, and that if an execution had been issued before this act took effect, yet that a sale afterwards made, to be good, must be according to the new law We cited 6 Bac. Abr. 373-4, 378, and many other authorities there referred to. We insisted that, previous to the act of 1807, the sheriff had no authority to make a deed; and that the sale to Penrose was not made either in conformity to any law or custom of the country, and referred to Mr. Spalding's notes from Febrero. We insisted that the sale to Penrose, not having been made in pursuance of law, passed no title to him, and referred to 8 Martin N. S. 246; 4 Wheat. 77; 2 Peters' Law R. &c., &c. We insisted that the confirmation by commissioners was only prima facie evidence in any case of title in confirmee; that the grant to Lucas in this case is no evidence whatever of title in him: 1. Because the confirmation was not made to the claimant. 2. Because it was not made in conformity to law, Lucas being neither the possessor of the land in 1803, or his representive, or the claimant, within the meaning of the act of 1807. 3. Because, by the act of 1807, it was not intended that such decision as was made for Lucas should be final even against the United States. 4. Because only two commissioners made the decision in favor of Lucas, and one of them, Penrose, was interested in the decision. 3 Dall. 386, (Slocum v. Simms, &c.) 2 Peters' Cond. R. 279. 5. Because the claim was confirmed on the false representation of the fact that Penrose was assignee of Cailloux; so if Cailloux had the right to the land, he was defrauded; if not, the government was defrauded, and Lucas procured a confirmation in violation of law.

H. S. GEYER, for Defendant. The appellee, in support of the judgment, insists: 1. The copy of the deed taken from the books of the recorder of land titles, was competent evidence. It is referred to in the record of the commissioners as containing a description of the lot claimed and granted; it thus becomes a part of the grant, and without it, the grant is imperfect for want of a description of the premises. 2 Story's Laws, 967, § 4; Rev. Code, 251, § 8. 2. Before the passage of the act of 21st February, 1825, there was no law requiring a sheriff's deed to be recorded in the recorder's office. And even if, by a strained construction of the registry acts, a sheriff's deed is held to be included, it does not follow that the deed is void because it was not recorded, as assumed in the second refused instruction Laws of La., 7; Geyer's Digest, 127-8; Laws of La., 117-18; Geyer's Digest, 269; Gilbert v. Burgot, 10 Johns. R. 456; Fosdick v. West, ibid. 466; Bonnel v. Sharp, 9 Johns. 163; 3 Mass. R. 573; 4 do. 637; 5 do. 460; 6 do. 487; 10 do. 60; and 3 Wheaton, 449. 3. The sheriff's deed is operative to pass the title of Louis Cailloux, and the first instruction was therefore properly refused. 4. Even on the supposition that one or both the refused instructions were technically correct, still if the verdict be according to the merits, the motion for a new trial was properly overruled. The court take into consideration how far its misdirection or mistake was material, and will not grant a new trial, if there is good reason to believe that the applicant was not injured by it. De Peyster v. Columbian & Co., 2 C. R. 85; Dole v. Lyon, 10 Johns. R. 447.

MCGIRK, J.

On the 13th February, 1836, Newman brought an action of ejectment against Studley for a lot of ground in the city of St. Louis, 120 feet by 150. There was a verdict and judgment for the defendant, Studley, to reverse which the appellant brings the cause here. By the bill of exceptions, it appears that one Veronique Guitard, in the year 1803, having been in possession of the lot about six years before, sold the same to one Louis Cailloux, but continued to occupy the same till 1808, when she died. It was proved that the mother of Cailloux lived on said lot until the summer before her death, when Cailloux took her to his house where she died 3rd December, 1808. It was proved that Cailloux died three or four years past; he left a widow who died about a year before the trial of this case; that he left a son who lived with his mother in St. Louis till about the 3rd of March, 1835, when the mother died; and that L. Cailloux, the ancestor, left a daughter, who, all this time, lived in St. Louis; that these heirs made a deed in due form of law to the plaintiff for the lot in question, dated in March, 1835. It was also proved that the defendant was in possession of the lot under J. B. C. Lucas as tenant, at the time of bringing the action.

The defendant then gave in evidence, that on the 14th day of May, 1801, in the general court of Louisiana, one Manuel Lisa,...