Page v. Hill

• Decision Date: 31 October 1847
• Citation: 11 Mo. 149
• Parties: PAGE v. HILL.
• Court: Missouri Supreme Court

11 Mo. 149

PAGE

v.HILL.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

SPALDING & TIFFANY, for Appellant.

I. The first and main question arises on the instruction given for the plaintiff below, to-wit: that the deed from Martin Coontz to Tanner, does not rebut the prima facie evidence of title in Coontz, in the land located under the New Madrid certificate. The certificate states that the land mentioned therein was materially injured by earthquakes. The deed of Coontz to Tanner recites the same of the tract conveyed therein. In the certificate the recorder of land titles says, that the land mentioned therein “appears by the books of his office to be owned by Martin Coontz,” and in the deed of Coonts to Tanner, it is stated that the tract therein conveyed was claimed by Martin Coontz in his name before the board of commissioners, as appears by the records of said recorder's office; and in the deed of Tanner to McKnight & Brady, it is stated to be the same tract originally claimed by and confirmed to said Coontz. The Coontz deed to Tanner was made in contemplation of taking the benefit of the act of Congress of 17th February, 1815, and so states, and authorizes in so many words, the said Tanner to proceed under that act and locate land according to it, &c. McKnight & Brady to whom the same land and right of location was conveyed by Tanner, located the certificate and procured the survey. This circumstance coupled with the fact, that the certificate did not issue until after Coontz conveyed the land to Tanner, is strong to show that the certificate itself issued on this land. It is evident then, that the grantee of Coontz under this deed, procured the certificate to issue, and procured it to be located. The lapse of time from the location of the certificate in 1818, to the date of the deed of Coontz to Lewis, under whom the plaintiff below claimed, connected with the consideration--$1,000 only for 640 acres, worth several hundred dollars an acre--and without warranty. Coontz could not have the right of location to but 640 acres. See act of Congress of February 27, 1815, § 11.

II. The appellant has proved a conveyance by Coontz to Tanner of 640 acres lying in New Madrid county, on the bayou St. John, which had been presented for confirmation, and which had been injured by earthquakes; with authority to Tanner, the grantee, to take the necessary steps under the act of Congress and locate said lands. A certificate of new location soon afterwards issues in lieu of a tract of land--having precisely the description and incidents just specified; shortly after, McKnight & Brady (Tanner's grantees), have possession of that certificate, and locate the same near St. Louis. Now, it is asserted for the appellant that the burden is on the appellee to throw doubt or suspicion upon the identity of the land, by proving that Coontz owned another 640 acre tract, situate on the bayou St John, in New Madrid county, which was laid before the old board of commissioners by Martin Coontz, as claimant, and which was materially injured by earthquakes; that this is an affirmative fact; and that the appellant is not bound to prove that there was no other tract of that description except the one conveyed by Coontz to Tanner.

III. Tanner being then owner of the land at New Madrid, obtained the New Madrid certificate and the same was located, and thereupon the title of the tract at New Madrid vested in the United States, by the act of Congress, and the right to the newly located land vested in McKnight & Brady, the assignees of Tanner.

But it is said that Lewis, under whom Calvet derives title, bought from Coontz without notice of McKnight & Brady's equity; as in this action the court is trying the equitable title, that is, who in equity has the right, we resort to equitable doctrines; and nothing is better settled than that he who buys with notice, or what should put him upon inquiry, is held to have taken the title subject to the equity, and nothing is better settled than that every person, both in courts of law and equity, is always considered as having notice of whatever is recited in the deeds or title papers through which he derives title or claims.

IV. The first instruction asked by the defendant below, was improperly refused. It asked the court to say that nothing passed by the sheriff's sale and deed under the judgment and execution in the case of Bates. The plaintiff's title was on three sheriff's deeds, and on a mechanic's lien for an aliquot part of the house; the one in favor of Hill was for 59766-183025 parts of the house. The one in favor of Thompson was for 101854-183025 parts of said house, and the other, that of Bates, was supposed by the court to cover the residue, being 21805-183025 parts, whereas in reality, the award of execution as well as the execution and deed, do not describe any intelligible proportion of the property. The description in the execution and deed is, “the eleven-hundredths and ninety-one parts of one hundred of said property in said lien mentioned, to-wit: a two-story frame house,” &c. That sale must of course be void for the want of a description of the interest sold It is also said, because the description in the execution and deed, is different from that in the judgment; in which last (the judgment) execution is awarded against “eight hundred and forty-eight hundredths of one hundredth” of the property. So that the execution went for a different proportion than authorized by the judgment, and in neither judgment, or execution, or deed, can any person tell what interest or proportion is intended This instruction, had it been given, would have prevented a recovery of so much of the property as was not embraced in the judgments and sales under the two other liens. The claim of Bates also for a cause of action that was by law no lien, and as this appears on its face, and the lien is a record, no title could be got under it, unless on its face it could be a lien.

V. The 2nd and 3rd instructions asked by defendant below should have been given. It assumes the law to be, that upon a judgment against a person who was neither owner nor possessor of land at the time materials were furnished or work done for, or upon a building, nor at the time when the contract was made for furnishing such materials or doing the work, the title cannot be affected by sheriff's sale under such judgment, in virtue of the law relating to builders' liens. 6 Mo. R. 163, Sibley et al. v. Casey & Biddle; Rev. Code of 1835, p. 108.

VI. The fourth instruction asked by defendant raises the same question as the one given for the plaintiff.

VII. The motion for new trial ought to have been sustained as the verdict is against law and evidence, saying nothing of instructions. As to the pretended estoppel against Page, because of his alleged entry under the execution debtors, I remark, that the judgments and executions of Hill & Thompson under which alone any thing could pass, were against Calvet alone, and he was not then in possession, and never was in possession again; so that Page did not get possession under Calvet, nor from him, but from Scott alone. So that the rule as to estoppel in such cases does not apply. Calvet joined in the deed in order to convey all his interest in the whole Coontz tract of 640 acres, for Lewis' deed to him conveyed much more than Calvet had conveyed to Scott.

GEYER, for Appellee.

I. The case, as made in the Circuit Court, presented several distinct questions: 1. The legal effect of the judgments, executions, sheriff's sales, and deeds, under which the plaintiff claims, as against John Calvet and Lucy M. Scott, and those claiming under them. 2. There being evidence tending to prove that the defendant entered upon and held the land under Calvet & Scott, pending the actions to enforce the liens, whether the jury finding that he so entered, he could set up title in a third person. 3. If he could set up such title, whether he has shown such title in his father or any one else. 4. The title set up involves the interpretation and legal effect of the deed from Coontz to Tanner, as between the parties, whether it is a conveyance of the land afterwards located, or a mere power to convey, and if it operates as a power, whether Tanner's deed to McKnight & Brady is a due execution of that power, so as to pass the interest of Coontz to the land located. 5. Whether the acknowledgment of the deed from Coontz to Tanner, made before a justice of the peace, is of any avail. 6. If not, whether the registry of that deed in New Madrid, without acknowledgment or proof, regarded either as a conveyance of the land in St. Louis county, or as a power to convey it, will take precedence of a conveyance of the land by Coontz to a bona fide purchaser, without notice, actual or implied, of that deed, there being no evidence whatever of any possession of the land by Tanner or those claiming under him, or of notice of the prior deed to Lewis, or any of those claiming under him. 7. Whether a deed from Calvet to Scott, not recorded, shall have the effect to defeat the lien of creditors created by the contract of the grantee before the deed was recorded, and the judgments, executions and sales, when neither the creditor nor the purchaser had notice of such deed. These questions involve the interpretation of written instruments and statutes, both of the United States and of this State, and could not lawfully be referred to a jury. No principle is better settled than that the construction of written evidences, and of laws, is exclusively with the court Levy v. Gadsby, 3 Cranch, 180. So of the construction of foreign laws. Sidwell v. Evans, 1 Penn. 388. It would be error to leave the construction of the written instrument to the jury. Walsh v. Duser, 3 Binn. 337; Moore v. Miller, 4 Serg. & Rawle, 279; Dennison v. Wertz, 7 Serg. & Rawle, 372; Vincent v. Heff, 8 Serg. & Rawle, 381; Rothe v. Miller, 15 Serg....