Norfleet v. Russell

• Decision Date: 31 October 1876
• Citation: Norfleet v. Russell, 64 Mo. 176 (Mo. 1876)
• Parties: W. S. NORFLEET, Appellant, v. A. J. RUSSELL, et al., Respondents.
• Court: Missouri Supreme Court

64 Mo. 176

W. S. NORFLEET, Appellant,

v.A. J. RUSSELL, et al., Respondents.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Greene County Circuit Court.

Bray & Cravens, for Appellant, cited: Stevens vs. Hampton, 46 Mo. 404; Bishop vs. Schneider, 46 Mo. 472; Ryan vs. Carr, 46 Mo. 483; Mastin vs. Halley, 61 Mo. 196; Chouteau vs. Burlando, 20 Mo. 482; Geary vs. Kansas City, 61 Mo. 378; Heddon vs. Overton, 4 Bibb. 406; Griffin vs. Sheffield, 38 Miss. 359; Snead vs. Ward, 5 Dana, 187; Smith vs. Dill, 13 Cal. 510.

O'Day, Ellis & Kenton, for Respondents.

NORTON, Judge, delivered the opinion of the court.

This is an action by ejectment to recover the possession of parts of lots 17 and 18 in the city of Springfield. The answer of defendants denies specifically the allegations of the petition, and avers that the defendant Kershner, and those under whom he claimed, had been in the actual, open and notorious possession of the lots in suit for ten years prior to the commencement of the action. The adverse possession of defendant was denied by replication.

On the trial plaintiff offered a large number of deeds in support of his title, and several of them being rejected by the court, plaintiff took a non-suit with leave to move to set the same aside. A motion for that purpose having been filed and overruled, plaintiff appeals to this court.

The only point presented for determination is, as to the action of the court in excluding the record of deeds offered by plaintiff; and to this our attention will be directed. The record shows that the land of which the lots in dispute are a part, was entered by John P. Campbell in 1837.

Plaintiff offered in evidence record of deed of John P. Campbell, to Greene county, dated 1836, conveying to said county fifty acres of land, out of which the lots sued for were carved. This deed was acknowledged before the clerk of the circuit court of Greene county. It was objected to because the record did not show that a seal was attached to the certificates of the clerk taking the acknowledgment. The statement appears on the face of the certificate, that there being no seal of the court, the private seal of the clerk was affixed. Where such statement is made in the body of the certificate the presumption arises that the seal was attached thereto, although no written scroll nor seal appears to be copied in the record. (Geary vs. Kansas City, 61 Mo. 378, and cases there cited.)

Nor is there anything in the objection that the deed was executed by Campbell before he acquired title. It distinctly appears on the face of the deed that the intent of the grantor was to convey a fee simple estate, and contained covenants of further assurance of title. (Bogy vs. Shoab, 13 Mo. 381.)

The objection made to the record of the following deeds because it did not appear that the seal of the officer, taking the acknowledgment, was copied in the record, viz: deed from B. H. Woodson to W. and S. Norfleet, deed from J. and W. Norfleet, to McQuirter, deed from McQuirter to Woodson, should have been overruled for the reason above given. The record of deed from Woodson to Jones, as trustee, should have been admitted as evidence. It described the land conveyed as being “seventy feet front off of the east side of lot No. 18, running back sixty-seven feet deep, also twelve feet front off of the west side of lot No. 17, and running back sixty-seven feet and fronting on Olive street, lying and being situated in the city of Springfield, Mo.” There is nothing in the objection that it did not further describe the lots as being in Greene county. (Long vs. Waggoner, 47 Mo. 179; Clardy vs. Matthews, 38 Mo. 121.)

Nor was there anything in the objection to the above deed that it appeared to have been filed on the 27th of July, and...