Pike v. Robertson

• Decision Date: 31 October 1883
• Citation: 79 Mo. 615
• Parties: PIKE v. ROBERTSON, Appellant.
• Court: Missouri Supreme Court

79 Mo. 615

PIKE

v.ROBERTSON, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

Heren & Son for appellant.

Bennett Pike and W. W. Caldwell pro se.

EWING, C.

This is an action of ejectment commenced in April, 1879. The defendant answered and admitted his possession; that he held under a mortgage executed by Gabriel Long to Miles Hale and Benjamin Knott in December, 1861; that said mortgage was duly recorded January 21st, 1862; that it was due and unpaid; that the defendant bought it, and Hale and Knott assigned it to him; that by mistake the land was misdescribed in said mortgage, when it was made, as in section 14, whereas it was in section 15; that Long intended to convey the right land, and he and the mortgagees supposed it was right; that Long owned no other land in 14; that the correct land--that in section 15--is the land this defendant holds and is in possession of under said mortgage; that plaintiffs knew the defendant was in possession of and claimed the land as his own long before their purchase, and also knew of the misdescription in the mortgage, and that it was recorded and was not satisfied. Defendant then prayed that the misdescription might be corrected and the mortgage declared a first lien on the land.

The plaintiffs replied, and alleged that defendant took the assignment of said mortgage and debt long after said land had been purchased by Robert Davison, who bought it without notice of said mortgage; that defendant was a “voluntary assignee” of said mortgage and had paid nothing for it; and that defendant cannot have said mortgage reformed and corrected as against plaintiffs, who are bona fide grantees of said Robert Davison. For further reply plaintiffs say that in 1875, in Andrew county, there was a suit between the aforesaid Robert Davison and Holmes Robertson, the defendant, in which said action the title to the land now in controversy was in issue; that in his answer in that case Robertson pleaded the same defense set up now under said assigned mortgage from Hale and Knott; that the circuit court and the Supreme Court passed upon said mortgage, and the question was res adjudicata.

The defendant, in the answer to the petition of Robert Davison above mentioned, also set up as a defense a title in himself for said land acquired by a sheriff's deed for Gabriel Long's interest therein obtained after the mortgage to Hale and Knott; also a title in himself acquired from the heirs of Jacob Bird, the original owner of the land; and claimed possession and title under the sheriff's deed, under the Birds and under the Hale and Knott mortgage.

Plaintiffs, to sustain their action, offered a sheriff's deed to Robert Davison dated June, 1872, for the land in controversy, also the decree of the circuit court of Andrew county in the case above referred to of Robert Davison against Holmes Robertson, in substance as follows: That Jacob Bird died in 1850 seized of the land in controversy; that afterward the heirs of Jacob, in conveying it to Eli Bird, by mistake described it as in section 14 instead of in 15; that afterward Eli Bird conveyed to Gabriel Long in 1860, making the same mistake in description, but that under the deed Long took possession of the right land; that in 1870 Robert Davison sued Long by attachment, got judgment and sold the right land and bought it at sheriff's sale in 1872; that in 1871, with full knowledge of these facts, Robertson procured deeds to himself from Bird's heirs for said land, and that said deeds were without consideration; and then decrees: “that the said Holmes Robertson be and he is hereby divested of all the right, title or interest acquired or attempted to be acquired in or to said northeast quarter of the northwest quarter section 15, in township 61, range 36, in said county and State, by virtue of the quit-claim deeds procured by him from said Bird's heirs,” (naming them) “and that the title thus acquired by said Robertson be invested in the plaintiff Davison;” and the decree then reforms and corrects the deeds from Bird to Gabriel Long, and for costs, etc. Plaintiffs then offered a deed from Davison to themselves and rested.

Defendan...