Fields v. Hunter

Napton, Judge, delivered, the opinion of the Court. This was an action of covenant, brought by Hunter against Fields, in the Circuit Court of Ray county. The declaration charged, that whereas heretofore, to wit, on, &c., at the county of Ray aforesaid, the^ defendant had, by a certain instrument of writing, sealed, &c., bargained and sold to the plaintiff the land on which he then lived, containing one hundred and sixty acres, for the sum of three hundred dollars, and had covenanted to warrant and defend unto the plaintiff the above-named land; said defendant did not and could not warrant and defend said tract of land, but on the contrary, at the time of making said writing, had no title, interest, or claim whatever to the land. It was farther averred, that one Foster, who, at the time of making said covenant, and ever since, had a good and valid title to the possession of said tract, had entered into the possession of the same, and ejected the said plaintiff by due process of law. The defendant pleaded non esl factum, without affidavit, covenants performed, and former recovery. To this plea, a demurrer was filed, but the record does not show any disposition of the demurrer. The parties went to trial on the two first pleas, upon which issue had been taken, and a verdict and j udgment was rendered for plaintiff. Motions were made in arrest of judgment and for a new trial, but the motions were overruled. It appears, from the bill of'exceptions, that the plaintiffs offered, in evidence, a covenant, which was dated Platte county, to the reading of which the defendant objected, but the same was admitted in evidence, without proof of its execution. The plaintiff also gave in evidence a transcript of the proceedings, in an action of forcible entry and detainer, brought before a justice of the peace by plaintiff, against Andrew Foster, in which suit Foster got a judgment for one-half the land purchased by plaintiff from Fields. Parol evidence was introduced to identify the [131] land; it was also in evidence, that Fields liad no notice of this proceeding before the justice; that Foster, at the time of the sale from Fields to Hunter, claimed the piece which he ultimately recovered; that a part of his improvement was on it, but that his house was on an adjoining tract. He was proved to have been an older settler than Fields; and after the purchase of Hunter, he moved his house on the tract sold by Fields to Hunter. On this state of facts, a variety of instructions were asked for on both sides, some of which were given, and some refused. The instruction given by the court, at the instance of Hunter, embraces every thing material to be noticed here. That instruction was, that “ if the jury believe, from the evidence, that any part of the claim of land sold by defendant to the plaintiff, as set out in the covenant between the parties, was in controversy in the action of forcible entry and detainer in proof, in which the plaintiff was the plaintiff and Andrew Foster was defendant, and that in that action such part of the said land so sold was adjudged to be Foster’s, then they must find for the plaintiff damages to the extent of the claim of land so recovered in said action of forcible entry and detainer by said Foster.” The record presents but three points for the consideration of this Court: First, the proof of the covenant; second, the variance between the declaration and-the instrument offered in proof; and, third, the instructions of the court. The question raised and argued by the counsel in relation to the action of the court in the demurrer to the third plea, is not presented by the record. 1. It is provided by the statute of this state, that when a declaration is founded upon any instrument of writing charged to have been executed by the other party, and not alleged therein to be lost or destroyed, such instrument shall be received in evidence, unless the party charged to have executed the same deny the execution thereof by plea, verified by affidavit. The plea of non est factum in this case was not verified by affidavit, and the Circuit Court committed no error in admitting the covenant in evidence without proof of its execution. 2. The covenant offered in evidence was dated at the county of Platte, whereas the declaration averred it to have been made at the county of Ray. In the case of Fatrigas vs. Mostyn, (Cowp., 176,) Lord Mansfield said, “If a declaration slate a specialty to have been made at Westminster, in Middlesex, and on producing the deed it bears date in Bengal, the action is gone, because it is such a variance between the deed and the declaration as makes it appear to be a different instrument.” So, in Alder vs. Griner, the court intimated that they felt themselves bound by the authority of the case of Fatrigas vs. Mostyn, where the venue was in the body of the declaration. — 13 Johns. Rep., 450. There was, therefore, a variance between the instrument offered in'evidence and the one declared on, and the Circuit Court should have excluded it. But whether the objection be available to the party here is more questionable. It does not appear, from the bill of exceptions, that any objections to the instrument, on any specific ground, were made in the Circuit Court, and this Court has heretofore intimated its views of the spirit of the rule prescribed by the Legislature, that only such points shall be reviewed diere as were decided on by the court, below. It is manifest, that unless [132] the party points out specific objections in the Circuit Court, and the bill of exceptions shows what these objections were, the case may be decided on one point by the Circuit Court, and reversed by another by the Appellate Court. — Dickey and Others vs. Malachi, 6 Mo. Rep., 186; Frost vs. Pryor, 7 Mo. Rep., 316; Watson’s Executor vs. McLaren, 19 Wend., 550. 3. The record of the judgment in the action of forcible entry and detainer, before the justice, was evidence of an eviction, but could not establish that such eviction was by title paramount. The defendant was no party to that record, and had no notice of the proceedings.- — Booker vs. Bell, 3 Bibb, 175; Prewitt vs. Kenton, Ibid., 280; Somerville’s Executors vs. Hamilton, 4 Wheat. Rep., 230; Stevens vs. Jack., 3 Yerger’s Rep., 403. The court erred, therefore, in the instruction given at the instance of the plaintiff, and for this reason its judgment must be reversed, and the cause will be remanded.