Parks v. Watson
| Decision Date | 31 October 1859 |
| Citation | 29 Mo. 108 |
| Parties | PARKS, Appellant, v. WATSON et al., Respondents. |
| Court | Missouri Supreme Court |
1. A., being the owner of two sections of land, by instrument dated in 1836 and recorded in 1837, sold and agreed to convey to B. an undivided one-fourth part thereof. The interest thus acquired passed to and became vested in C. by deed dated April 29, 1842, but not recorded until December 20, 1847. A., by deed dated in 1839 and recorded in 1841, conveyed said two sections to D. and E. subject to the rights of B.'s representatives under the above agreement. Under this deed to D. and E., C. became interested to the extent of an undivided fourth part of the interest thus acquired by said D. and E. In 1844, under an execution issued against C., the sheriff levied upon “all the right, title, interest and estate of the said C. in and to” the several tracts embraced in the deed from A. to D. and E., together with other tracts. In the levy and advertisement the tracts described in the deed from A. to D. and E. are designated by the numbers of the sections, township and range, after which there follows this further description: “Being the same property conveyed by A. to D. and E. by deed dated 28th of June, 1839, and recorded in book O, p. 351 and 352.” The deed of the sheriff adopts the descriptions contained in the levy and advertisement, and conveys to the purchaser “all the right, title, interest and claim” of C. in and to said tracts so described. Held, that the purchaser, by this sheriff's deed, acquired title to that interest only which was vested in C. under the deed from A. to D. and E., and not to that held by him, at the date of the levy and sale, under the title acquired by B. from A.
Appeal from St. Charles Circuit Court.
This was a suit in the nature of a bill in equity. All parties claim title to the land in controversy under Jamison Samuel, who entered, and obtained patents for, sections twenty-seven and twenty-eight, in township forty-eight, of range five east. Samuel, by an instrument dated January 11, 1836, and recorded June 6, 1837, “bargained and sold unto George Shannon, of, &c., one undivided fourth part of” said sections twenty-seven and twenty-eight. Said instrument, after more particularly describing said sections, proceeds as follows: &c. Shannon mortgaged the interest thus acquired to one Ayres, January 29, 1836. This mortgage was foreclosed, and at the sheriff's sale under the decree of the court Ayres became the purchaser. The sheriff's deed to him was acknowledged May 17, 1839, and recorded August 29, 1840. Ayres conveyed said interest to Elias T. Langham by deed dated April 29, 1842. This deed was recorded December 20, 1847. Langham by deed dated August 4, 1848, and recorded the same day, conveyed the same to his daughter Wenona Langham. This was a voluntary conveyance. In March, 1856, the said Wenona and her husband conveyed said one-fourth interest to the plaintiff Robert H. Parks. The title thus acquired is that asserted in this suit.
Said Jamison Samuel, by deed dated June 28, 1839, and recorded June 21, 1841, conveyed to Angus W. McDonald and Kennedy Owens, among other tracts, the following: “Sections numbers twenty-seven and twenty-eight, in township forty-eight, of range five east, containing each six hundred and forty acres, these two sections to be subject nevertheless to the rights in law derived or derivable to the legal representatives of the late Judge Shannon under a certain instrument of writing executed by the said Jamison Samuel unto the said Judge George Shannon, deceased, in his lifetime.” By instrument in writing, dated July 8, 1841, but not recorded, and executed by A. W. McDonald and Elias T. Langham, it was acknowledged and declared that said Langham was interested in said purchase equally with McDonald, and that his name ought to have been inserted as grantee in the deed from Samuel. On the 25th of April, 1843, McDonald recovered a judgment against Langham in the St. Louis court of common pleas. An execution was issued on this judgment to the sheriff of St. Charles county. Under this execution the sheriff levied upon “all the right, title, interest, and estate of the said Elias T. Langham in and to” certain tracts of land, a portion of which are described in the sheriff's advertisement as follows: “1st, one section of land (No. 27) twenty-seven, in township number forty-eight (48), range five east, containing six hundred and forty acres; 2d, one section of land, number twenty-eight (No. 28), in township number forty-eight (48), range five east, containing six hundred and forty acres; [the advertisement proceeds to enumerate three other tracts;] being the same property conveyed by Jamison Samuel and wife to Angus W. McDonald and Kennedy Owens by deed dated 28th of June, A. D. 1839, and recorded in the recorder's office of St. Charles county, in book O, page 351 and 352.” The sheriff's deed, which was acknowledged May 14, 1844, and recorded September 14, 1848, conveyed “all the right, title, interest and claim which the said Elias T. Langham had in and to said several tracts of land” to Angus W. McDonald, adopting the description contained in the advertisement. The defendant Watson claimed title by virtue of various conveyances from McDonald and Owens.
The plaintiff prayed that the court would “decree a fee simple title in the petitioner in and to the one-fourth part of said two sections of land, and have the same set off to him on one of the outer lines of the said two sections of land in one body, according to the aforesaid agreement of the said Jamison Samuel and George Shannon; and that the west half of section twenty-eight above described be set off and allotted to him, the said half section being one-fourth of the said two sections of land, and being in one body, and on one of the outer lines of said two sections of land, and in due proportion to the figure of the whole body of said two sections of land, and for such other and further relief,” &c.
The plaintiff asked the court to “decide that no title to the land in controversy passed to Angus W. McDonald by virtue of the sheriff's deed of May 13, 1844, except such title as was conveyed to McDonald and Owens by the deed of Jamison Samuel of June 28, 1839.” The court refused so to “decide, but decided that said sheriff's deed conveyed to McDonald all the title to said land that said Langham had at the date of the levy of execution on said land, and at the time that the execution came to the hands of the sheriff of St. Charles, derived from any source whatever.”
Leonard, Wells and E. A. Lewis, for appellant.
I. The words, in the sheriff's deed to McDonald, “being the same property conveyed by,” &c., are restrictive of the general description before given.
Glover & Richardson and Broadhead, for respondents.
I. The court rightly refused the instructions asked. The legal effect of the sheriff's deed was to pass all Langham's interest in sections twenty-seven and twenty-eight. (5 Metc. 28; 4 Mass. 196; 2 Metc. 41; 6 Metc. 529; 36 Maine, 316; 31 Penn. State, 475; 2 Parsons on Contr. 59.)
The sheriff's deed, which we are called upon to interpret in this case, in pursuance of the words of the levy, advertisement and sale, conveyed “all the right, title and estate” of Langham in “sections twenty-seven and twenty-eight” (township and range being specified) and in several other pieces of land, all of them, including these sections, being enumerated in the deed from Samuel to Owens and McDonald, and proceeds with this further description: “Being the same property conveyed by Jamison Samuel and wife to Angus McDonald and Kennedy Owens, by deed dated 28th June, 1839, and recorded in recorder's office of St. Charles county, in book O, p. 351 and 352.”
The deed from Samuel to McDonald and Owens, thus referred to, does not convey the entire sections twenty-seven and twenty-eight, but only three quarters of them, excluding from its operation an undivided fourth of the two sections previously conveyed by the grantor to George Shannon. It appeared from another instrument of writing also on the record, that Langham was equally interested with McDonald in this purchase made from Samuel, and that it was through inadvertence or mistake that his name was omitted in the deed. These deeds showed that at the date of the sheriff's sale, heretofore adverted...
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Smith v. Crosby
...of the defendant, which was held to be sufficient. The same ruling was made in Millett v. Blake, 81 Me. 531, 18 Atl. Rep. 293; Parks v. Watson, 29 Mo. 108; Lewis v. Chapman, 59 Mo. 381; McLaughlin v. Shields, 12 Pa. St. 287; Swan v. Parker, 7 Yerg. 490. The statute provides: "When a sale ha......