Walker v. Keile

• Decision Date: 31 July 1843
• Citation: 8 Mo. 301
• Parties: WALKER v. KEILE.
• Court: Missouri Supreme Court

8 Mo. 301

WALKER

v.KEILE.

Supreme Court of Missouri.

July Term, 1843.

ERROR TO BENTON CIRCUIT COURT.

MILLER and WINSTON, for Plaintiff. The plaintiff in error insists that the deed is insufficient, and ought to have been excluded by the court below. The bill of exceptions shows that the defendant below objected to the reading of the said deed, and that his objection was overruled. As to whether the instrument above referred to is a sealed instrument or not, see Rev Code. Mo Laws, p 118. § 3, 3 Mo. R. 80, and 5 Mo. R. 281. The evidence offered by the defendant below, of a parol agreement, ought to have been given, if for no other purpose, to mitigate damages. The plaintiff in error moved for a new trial, which was refused.

PHELPS, for Defendant 1. That the court erred in permitting the sheriff's deed to be read in evidence. 2 In permitting the transcripts to be read in evidence 3. In overruling a motion to exclude from the consideration of the jury said deed and said transcripts 4. In refusing to grant a new tal The determination of the first two points settles the case The deed (page 8) begins “This indenture,” to which the person executing it has affixed a seal, as appears by the bill of exceptions Unless a scrawl was affixed to this instrument by way of seal, the instrument of writing need not be expressed on the face thereof to be sealed If it was the fact, that it was not sealed, but a scrawl affixed to it, the bill of exceptions should have so stated. There is no other method to represent the seal on the sealed instrument than the method here adopted On this point the case of Cartmill v. Hopkins, 2 Mo. R 220, and the case of Boynton v. Reynolds 3 Mo. R 79, show that this court will not presume a scrawl was affixed to an instrument described like the one in the bill of exceptions. We therefore contend, there was no error in receiving said deed in evidence.

As regards the transcripts. They were proved to have been filed with the clerk of the Circuit Court before they were read in evidence Vide transcript, pp 15-18. The transcripts all show that executions had been issued by the justice of the peace, and returned--“No property found to levy on,” by the constable. Burke v Flournoy et al. 4 Mo R. 116, Digest, 364, § 19, 250, § 4. The sheriff's deed and the transcript having been properly received in evidence, the court did not err in refusing to exclude them from the jury, and in refusing to grant a new trial.

SCOTT, J

This was an action of ejectment brought by Keile against Walker, to recover possession of a tract of land On the trial Keile had a verdict and judgment, to reverse which Walker has sued out this writ of error. The land in controversy, it seems, was sold under several executions issued against Walker, and Keile becoming the purchaser, he received an instrument from the sheriff, purporting to be a conveyance of...