Hartt v. Rector & Dobbin

RYLAND, J. This was an action of ejectment tried in the Cooper Circuit Court, in which the plaintiff suffered a non-suit, on account of the rejection of certain evidence of title that he offered. The cause has been twice before in this court. It was brought here in August, 1842, by the plaintiff and was reversed. See Hartt v. Rector, 7 [360] Mo. R. 531. The plaintiff had a verdict at the next trial, which took place in 1843, and judgment thereon, which was reversed by this court in January, 1844. See Rector v. Hartt, 8 Mo. R. 448. Upon the last trial, which took place in September, 1847, the plaintiff gave as evidence of title a patent from the United States to himself, Carroll & Wallace, dated the 19th November, 1822. In answer to this title, the defendants gave in evidence a judgment of this court, of the 15th April, 1823, in favor of Thomas A. Smith, against George 0. Hartt and George Tennille ; an execution on this judgment of the 10th October, 1828, and a sheriff’s sale and conveyance of the 3.7th February, 1829, to William M. Adams, for the whole quarter section ; also, conveyances from Adams to the defendants for the lot in controversy. The plaintiff, in reply, then gave in evidence two judgments of the Cooper Circuit Court, against the plaintiff; one of the 26th January, 1821, in favor of G. James, and the other of the 21st May, 1821, in favor of N. Nicholcls: executions thereon of the 9th of August, 1823 ; a levy upon Hartt’s interest in “the Boonville tract,” being 334 eighths ; a venditioni exponas of the 22nd of July, 1824; a sheriff’s sale thereunder of Hartt’s interest in the Boonville tract made in July, 1824; anamended sheriff’s return to the venditioni exponas, made in October, 1836, and a sheriff’s deed of the 27th of October, 1886, to Gershom Compton, of the land sold under vendi-tioni exponas and the acknowledgment and registry of this deed. The original return to the writ venditioni exponas staled the fact of the sale and xiayment of the purchase-money, but omitted to state the name of the purchaser, and this was supplied by the amended return. The sheriff’s deed was made upon the petition of Compton, by order of the Cooper Circuit Court, by the successor in office of the sheriff who made the salo. The plaintiff then offered to prove that at the time of the original levy and sale, the expression “Boonville tract” was well known in the neighborhood as the northwest fractional quarter of section thirty-five (35), township forty-nine (49), range seventeen (17), (the land sued for) and that this tract had acquired the appellation of the “Boonville tract,” and was known by that description. To this evidence, both written and verbal, the defendants objected, and the court sustained the objection, and rejected the evidence thus given by the plaintiff in reply. The plaintiff then proved and read in evidence the following title paper : A conveyance of the loth of April, 1823, from himself to Peyton Nowlin, acknowledged and recorded in Cooper county, on lllh day of July, 1823, of his “undivided interest in and to three and one-half eighths of the northwest fractional quarter of section 35, township 49, range 17, south of Missouri river, in trust to secure the payment of certain demands.” A writing of the 1st of September, 1825, executed by Nowlin, the trustee, stating the fact of the sale of the several tracts of land included in TIartt’s deed of trust, to whom made, and the price given, in which it was stated-that “the 334 eighths of the N. W. fr. % of section 35, towmship 49, rango 17, including part of the town of Boonville, was sold to Gershom Compton.” A conveyance on the 8th July, 1836, from Nowlin, the trustee, to Gershom for several tracts of land included in the deed of trust and described in the certificate of sale as having been sold to Compton. In this deed, the land in dispute is described, after reciting the deed of trust and the sale made under it, as all Hartt’s “interest in the southeast fractional quarter of fractional section 35, township 49, range 17, including part of the town of Boonville, on the south sido of the Missouri river and in Cooper comity.” The deed declares that tlie trustee sells such interest in these lands as he acquired under Harlt’s deed of trust and no more ; a conveyance of the 15th of May, 1837, from Compton to I-Iartt of the land in controversy. The plaiatiiF tlien proved, that the northwest quarter was fractional, and made so by the Missouri river, and tlie only fractional quarter in the section ; that a part of tire town of Boonville was situated upon it, and that no part of the town was situated on the southeast quarter. All the evidence of title was objected to by the defendants, and was excluded by the court, and thereupon the plaintiff suffered a non-suit. The plaintiff afterwards moved the court to set aside this non-suit, which motion the court overruled, and the plaintiff brings this cause here by writ of error. To reverse the judgment of the Circuit Court, the x>laintiff in error relies [361] mainly on two grounds. First. That the court erred in excluding his evidence of title, derived under the sheriff’s sale in July, 1834, and the sheriff’s deed in pursuance of this sale, dated 37th October, 1836. Second. That the court erred in excluding the plaintiff’s evidence of title, derived from Nowlin’s deed of July, 1836. It, therefore, becomes necessary for me to examine these propositions, and if I find the law arising on either one to be for the plaintiff, then the cause will have to be remanded. I am relieved from all necessity of investigating the point first above set ■down. The principle stated by this court in the case of Alexander & Betts v. Samuel Merry, 9 Mo. K. 515, are conclusive upon this point. I shall, therefore, pass it by with merely stating that in accordance with these principles, the Circuit Court did right in rejecting all the evidence offered by plaintiff below in regard to the same. The second point is of much more difficult adjudication. The mistake as is alleged in the deed from Nowlin to Hartt. This deed is for the southeast fractional quarter of fractional section 35, township 49, range 17, including part of the town ofBoonville, on the south side of the Missouri river, in Cooper county. The plaintiff contends that it was intended for the northwest quarter, and not the southeast, and he offers to show and prove this by evidence, showing that the southeast quarter is not fractional, and that no part of the town of Boon-ville is situated on it; but that the northwest quarter is fractional, and is the only quarter that is fractional in said section, and that a part of the town of Boonville is situated on it. Many authorities are cited by the plaintiff’s counsel, as well as by the defendant’s, on this subject. G-reenleaf, in "his treatise on the Law of Evidence, volume 1, p. 333, § 301, and in the notes thereto, has laid down a general, and, I think, a correct view of this subject. Balsa, demonsiratio non noeel, cum, de corpore constat. This, says he, is the rule derived from the-civil law. So much of the description as is false, is rejected, and the instrument will take effect if a sufficient description remains to.ascertain its application. Words necessary to ascertain the premises must be retained, but words not necessary for that purpose may be rejected, if inconsistent with others. That an uncertainty which arises from applying the description contained in the will, either to the thing devised or to the person of the devisee, may be helped by parol evidence, but, that a new subject-matter of devise or a new devisee, where the will is entirely silent upon either, cannot be imported, by parol evidence, into the will itself. This is laid down as the doctrine concerning wills. The plaintiff seeks that it may be applied to the deed in this ease. Be it so. By the acts of Congress, the public lands in the new States and territories have been surveyed and laid off in townships, ranges, sections, and the various subdivisions of sections — such as half-sections, quarter-sections, half-quarter sections, and quarter-quarter sections; and the United States grant their patents, and have them issued for lands thus marked, bounded and described. A principal meridian line is laid down, then townships and ranges, so that a person of ordinary capacity can designate the tracts and point out the lands and the various subdivisions ; and he knows just as well what specific tract or parcel of land is pointed out by the description of the southeast fractional quarter of section 35, township 49, range 17 west, south of Missouri river, as if the external lines and corners thereof had been run and marked and platted down by the surveyor. Such a description is nothing more nor less than a description of the land by metes and bounds. The deed in this case is for the southeast fractional quarter. It turns out that this quarter is not fractional. Must we, therefore, conclude that the deed is void ? Let us reject the word fractional, which is in this instance the falsa .demonsiratio of the civilians, and enough will still remain to convey the premises. No part of the town ofBoonville is situated upon it: reject this false demonstration and enough still remains to convey the premises mentioned in the deed. It is contended for the plaintiff in error, that we must look to the words [362] “ fractional quarter,” and on which a “ part of the town of Boonville is situated,” as tlxe particular description, and as such, must control the description of metes and bounds, thereby overturning the descriptive words, southeast fractional quarter of section 35, township 49, range IT wést, south of the Missouri river. But this construction is contrary to all the rules and would overturn the settled and long established modes by which we designate our tracts or parcels of land. When we sell by the descriptive terms of southeast fractional quarter of section 35, in township 49, range 17 west, south of the Missouri river, we specify and describe as particularly as if we marked out the boundaries and described each line and specified each corner. If it be not “fractional,” or if no part of the town of Boonville be included in these lines, then these descriptive specifications, thus wanting, become what the civilians call falsa demonstrate, and must be rejected, nevertheless enough still' remains to pass the land by the deed. On the other hand, let those descriptive specifications, thus wanting, become the governing and controling descriptive words, and the incident will prevail over the principle, an absurdity into which I am not willing to be' driven. Were I to convey by deed a lot in the city of Boonville, and describe it as lot number ten, in block number five, on the plat of said town, said lot number ten fronting on Main street, sixty feet, and running back one hundred feet to an alley fifteen feet wide, now in the possession of A. B., and it should afterwards turn out that A. B. never was in possession of said lot,. but was in possession of an adjoining lot number eleven, of the same dimensions ; can it be maintained that the specification of the possession must control the other descriptive words in this deed, so as to authorize the courts to suffer parol evidence to prove that lot number eleven was meant to be conveyed in this deed instead of lot number ten ? See the case of G-oodlittle v. Southern, 1 Maul. & Selw. 299.(a) Upon the whole case I am clear that the law, on the second point as well as on the first, was properly ruled by the court below for the defendants. The point about the condition precedent, in the deed of trust to Nowlin, we consider not necessary to be now passed on by this court. Judge Raptor concurring with me in this opinion, the judgment of the Cooper Circuit Court is affirmed. Footnotes [a] (a) Parol evidence is inadmissible to contradict, enlarge, vary or add to a written instrument—Singleton v. Fore, 7 Mo. R. 515; Ashley v. Bird, 1 Mo. R. 610; Lane v. Price, 5 Mo. R. 101. Where a note was payable in the currency ol' the State, It is not competent to prove by parol that it was understood by the parties to mean paper currency—Cockrill v. Kirkpatrick, 9 Mo. R. 688. isfor is it admissible to show that a note to pay, absolute on its face is only a promise to pay on a condition—Jones v. Jeffries, 17 Mo. R. 577. Where the original is beyond the jurisdiction of the court its contents may he proved by parol—Brown v. Wood, 19 Mo. R. 475; Perpetual Ins. Co. v. Cohen, 9 Mo. R. 416; Bullitt v. Overfield, 2 Mo. R. 4. But not unless the original is accounted for or noticegiven to produce it—Lewis v. Dill, 17 Mo. R. 61; Perry v. Roberts, ibid, 36. The recitals in a sheriff’s deed cannot be contradicted, by parol—Reed v. Austin, 9 Mo. R. 713. If the description therein be vague, indefinite or uncertain, parol evidence is admissible to identify the tracts—Bates v. Bank of Mo., 15 Mo. R. 309; and see Smith v. Phillips, 23 Mo. R. 555. What a court ol' record does can only be known by its record, and cannot be proved by parol—Milan v. Pemberton, 12 Mo. R. 598. But see Ravenscroft v. Giboney, 2 Mo. R. 1: Bogart v. Green, 8 Mo. R. 115; Huston v. Becknell, 4 Mo. R. 39. All orders not entered of recordare extra-judicial and void—Medlin v. Platte, 8 Mo. R. 235; Gates v. Hunter, post, 511. It is not competent at law, to show that a deed absolute on its face, is inl’act a mortgage—Hogel v. Lindell, 10 Mo.R. 483. Evidence of the contents of a letter cannot be proved by parol, until its absence is accounted l'or, and the inability to produce it proven—Farrell v. Brennan, 32 Mo. R. 328. It is a well known principle of jurisprudence that all and every condition, covenant, understanding, terms, etc., used iu the negotiation, prior to the writing, is merged into and included in the writing; and if the parties from carelessness, mistake or inadvertence, omit to state ,the full agreement in all its details, in the writing, it is considered that, although they may have had such an agreement or understanding (different from the writing) it was waived by not inserting it therein, hence the above rules.