Union Bank of Missouri v. Manard

• Decision Date: 28 February 1873
• Citation: 51 Mo. 548
• Parties: THE UNION BANK OF MISSOURI, Plaintiff and Appellant, v. W. T. MANARD, Defendant and Respondent.
• Court: Missouri Supreme Court

51 Mo. 548

THE UNION BANK OF MISSOURI, Plaintiff and Appellant,

v.W. T. MANARD, Defendant and Respondent.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Linn Circuit Court.

G. D. Burgess, for Appellant.

A. W. Mullins, for Respondent.

VORIES, Judge, delivered the opinion of the court.

The plaintiff sued the defendant, in an action of ejectment in the Circuit Court of Linn County, to recover a tract of land in the petition set forth.

The petition was in the usual form. The defendant by his answer, admits that he is in the possession of the land claimed, but charges that he entered by a sufficient legal title. He denies the other allegations of the petition, and sets up the statute of limitations of two years, charging that neither the plaintiff nor its predecessor or grantor. nor any person under whom it claims, was seized or possessed of the land in question at any time within two years next before the bringing of this suit; that said land is what is known as Military Bounty land. The plaintiff replied putting in issue the affirmative allegations of the answer.

A trial was held before a jury and the plaintiff attempted to derive title to the land in itself, by a patent from the United States, and from thence tracing title from the patentee through others to itself. In this attempt it wholly failed, but in order to show its right to a recovery it introduced a deed (among other deeds offered and read in evidence) from Southcote Shaw and wife of Boston to Henry H. J. Grill and Robert Hayle, purporting to convey the land described in the petition to the said Grill and Hayle. This deed was dated April 16th, 1860.

The plaintiff next read in evidence a deed bearing date April 9th, 1862, from said Grill and Hayle and their wives, which purported to convey the land in controversy to plaintiff. The plaintiff then, to show that the defendant claimed to hold title to the land in controversy, by virtue of a title derived from the same persons from whom plaintiff claimed, and could therefore not dispute the title of plaintiff's grantors; offered in evidence a deed executed by the sheriff of Linn County to one William H. Brownlee, purporting to convey to said Brownlee the same lands in controversy. The sheriff's deed recited that on the 8th day of October, 1860, a judgment was rendered in the Circuit Court of Linn County in favor of Mary Burns and Isaac Schrack, and against H. H. Gibson and Henry H. T. Grill for the sum of $289.90 for debt and $7.95 for damages, upon which judgment an execution issued from the Clerk's office of said Court in favor of Mary Burns and Isaac Schrack, and against the said H. H. Gibson and H. T. Grill, dated the second day of Mch., 1864, directed to the sheriff of the County of Linn, and that the same was to him delivered on the 8th day of March, A. D. 1864, by virtue of which said execution, the said sheriff did on the 12th day of March, 1864, levy upon and seize, all the right, title, interest and estate of the said Henry H. T. Grill, of, in, and to the following described real estate, situate in said county. The land levied on was then fully described, and among other lands, was the land in controversy. The sheriff's deed then proceeds to recite the notice given of the sale under the execution, the sale to said Brownlee, and that the land in controversy was conveyed to him, all in the usual form, and as the law directs. It was also shown that this deed was acknowledged, in open Court in proper form on the 16th day of April, 1864, and that it was filed for record in the Recorder's office on the 25th of April, 1864.

The plaintiff then for the same purpose, read in evidence a deed from said Brownlee to Abednego Manard, dated January 25th, 1868, and purporting to convey the same land to said Manard. This deed was also shown to have to have been acknowledged and filed for record on the 25th day of January, 1868.

It was then admitted by the defendant that he entered into possession of the land under Abednego Manard, and that he was holding under him. The plaintiff, after introducing this evidence, closed his case. The defendant then demurred to the evidence of plaintiff, for the reason that there was no evidence to show that plaintiff, or those under whom he claimed, ever had any title to or any possession of the land, and because the evidence showed a good subsisting outstanding title in a third party, &c., &c. The Court overruled the defendant's demurrer to the evidence and the defendant excepted.

The defendant then introduced evidence to show the time, at which...