Neilson v. County of Chariton

Shkewood, Judge, delivered the opinion of the court. The material facts of this case are these: In 1857, F. W. Hoffman conveyed the property in controversy (a lot in the city of Brunswick), to A. M. Day. subject to a mortgage to Chariton county, executed by Hoffman in 1854. In 1859, Day conveyed to A. D. Day, who, in 1860, executed a deed of trust to one Barr, and in the same year the plaintiff became the purchaser of the property in dispute at a sale made under the last named deed. In 1865, a sale took place by virtue of the mortgage made in 1854, to the county, and Frederick Passe, the father of the minor defendants, bought thereat, and entered into possession, which is still retained by those claiming under him. The court below dismissed plaintiff’s petition, holding that though the sale made under the mortgage in 1865, was void, yet that the lot in question being a part of the military bounty land tract, and the action riot being brought within two years after adverse possession taken by Frederick Passe, deceased, the statutory bar was available as a defense, which precluded any otherwise existent right of plaintiff to redeem. I. The provisions of the act in relation to lands of the character in controversy never went into effect until August 1st, 1866. (Gen. Stat., 1866, p. 745, § 1; Id., 882, § 2.) Plaintiff’s right accrued in 1865, at a time when ten years was the period provided as a statutory bar, by the iilawstnen in force.” Consequently, § 32 of the same chapter (ch. 191, G. S., p. 749) is applicable to the case before us; and as the [388] plaintiffs suit was brought in 1873, he was not barred of his action. (Abernathy vs. Dennis, 49 Mo., 468; School Directors vs. Georges, 50 Mo., 194; McCartney vs. Alderson, 54 Mo., 320.) II. The deed made by Barr, the trustee, although somewhat informal, sufficiently referred to the powers conferred by the deed of trust and recited a substantial compliance therewith. But the recitals in the deed of the trustee, would not be prima facie evidence thereof, unless so provided in the deed creating the power.' (Carter vs. Abshire, 48 Mo., 300.) As it does not appear that the deed referred to, contained a provision of that sort, the deed made by Barr should not have been admitted, without evidence in support of it's recitals. Judgment reversed and cause remanded ; all concur except Judge Tories, absent.