Bradley v. Spokane & Inland Empire Railroad

<p>MOTION for a new trial.</p> <p>This was an action of ejectment for a lot of land in city of New-Iiaven. The suit was commenced on _ the 9th of November, 1808.</p> <p>The defend^1 pleaded the general issue; and on the trial, the case appeared to be as follows: Josiah Wood-house died seised of the premises m 1766; and on his death, the same descended to his only son Robert, who centered thereon, and died seised thereof in 1775; and on his death the same descended to Mary Woodhouse, his «nly child, who was born in December, 1774, and who intermarried with James Goldear in 1794, before she arrived at the age of twenty-one years. She remained a feme covert until her death, which happened in November, 1807, leaving her husband, James Goldear, living, and having had children by him, born alive, who died before their mother, and who could have inherited the premises, if they had been alive at the time of her decease. Goldear had never been in actual possession of the premises; but the defendant, more than twenty years before the commencement of this action, having purchased the premises for a valuable consideration, went immediately into possession of the same, and from that time down to the time of trial, held the same adversely to all others. Mary had never been in possession since her intermarriage with Goldear. Josiah Woodhouse left at his death no brother, nor any issue of a brother; and he never had but one sister, Elizabeth, who died before the commencement of this suit, leaving the plaintiffs her only heirs at law. It also appeared that there were nine other persons living in equal degree of kindred to Mary Goldear with the plaintiffs. On these facts the plaintiff's claimed that they were entitled to recover. The defendant objected to a recovery, on the ground that Goldear being now living was tenant by the curtesy of the premises, though neither he nor his wife had ever been in actual possession during the coverture. And the court directed the jury, on that grou

<p>Appeal, No. 38, Jan. T., 1901, by plaintiffs, from judgment of C. P. Elk Co., Sept. T., 1897, No. 96, on trial by court without a jury in case of Charles H. Hutchinson, Harry Gr. Clay and William Hacker, now by substitution William I. Leiper instead of William Hacker, Deceased, Trustees, v. M. S. Kline.</p> <p>Ejectment for land in Jones township.</p> <p>The case was tried by Mayer, P. J., without a jury.</p> <p>The opinion of the court was as follows:</p> <p>This action of ejectment was brought to recover possession of a certain piece of land situate in Jones township, Elk county, containing 2,931 acres, three rods and nine perches, being part of warrant No. 3252 and the western parts of warrants Nos. 3231, 3232 and 3251.</p> <p>The legal title to the land described in the writ was in the plaintiffs prior to February 13, 1883, and at the time of the bringing of the action of ejectment the legal title to the gas, coal, iron and petroleum was vested in the plaintiffs and would entitle them to recover in this action, unless this title was divested by virtue of a tax sale by the treasurer of Elk county on July 2, 1892, to J. Powell under whom the defendant, M. S. Kline, claims title. The validity of this tax sale so far as the surface of the said tracts of land is concerned, is not disputed, except that it is claimed because of the description of the conveyance by metes and bounds these several tracts compose an entirety and should have been taxed together and not by separate warrants. It is contended by the plaintiffs that the assessments of taxes against these tracts as unseated land should be held to apply only to the surface, which by reason of the reservations in the deeds of conveyance was a separate estate from the mineral rights.</p> <p>The parties to this suit by agreement filed dispensed with a trial by jury, and it ivas submitted to the decision of the court under the act of April 22,1874.</p> <p>FINDINGS OF FACT.</p> <p>It was not shown on the trial that

<p>Appeal from Greene Circuit Court. — Hon. W. F. Geiger, Judge.</p> <p>(1) Plaintiff cannot recover in ejectment unless the-legal title was vested in Mm at the time of bringing the suit. Large n. Fisher, 49 Mo. 307 ; Norfleet ». Russell, 64 Mo. 176; Ford n. French, 72 Mo. 250; Dunlap ro. Henry, 76 Mo. 106. (2) The sheriff’s deed to plaintiff, Evans, is void on its face, from its own recitals, for the following reasons: The recital in said deed that the real estate in question was advertised to be sold between the “lawful hours” of, etc. (said day of sale), renders said deed void; said sheriff having set out in said notice his own conclusions, instead of stating the precise time (or between what hours) said sale would take place. Spurlock v. Allen, 49 Mo. 178; Hubbard v. Gilpin, 57 Mo. 441; W. S., sec. 42, p. 609. (3) The deed was defective and conferred no title, because of its failure to contain a recital that the sheriff failed to put tip at the front door of the courthouse the required notice of the change of time of sale, etc. W. S., ch. 41, sec. 45 ; Ladd v. Shippi, 57 Mo. 523 ; Wilhite v. Wilhite, 53 Mo. 71. (4) The land was chargeable with its own taxes and the fact of its not having been assessed or advertised in the name of the plaintiff does not invalidate the defendant’s title. Laws 1872, p. 124, sec. 203. Plaintiff should have recorded his sheriff’s deed and not withheld it from record for ten years. W. S., x>. 612, sec. 57.</p> <p>(1) The sheriff’s deed put in evidence by respondent contains all necessary recitals. 1 W. S., sec. 42, p. 609 ; Carpenter v. King, 42 Mo. 219 ; Wilhite v. Wilhite, 53 Mo. 71. (2) Even though there was a slight variance the deed would be held good. Stuart v. Severance, 43 Mo. 322; Jamison v. Walker, 4 Wend. 462; Johnson v. Davis, 18 Johns. 7. (3) Even if the deed did not give notice of sale, as required by law, it would not affect an innocent purchaser. Draper v. Bryson, 17 Mo. 71; Matney v. Graham, 50 Mo. 559; Warner v. Shar

<p>Appeal, No. 136, Oct. T., 1909, by defendant, from judgment of C. P. Nó. 3, Allegheny Co., Feb. T., 1904, No. 91,' on verdict for plaintiff in case of Pauline M. (Handel) Jordan and W. P. Jordan, her husband, in right of said wife v. John A. Chambers.</p> <p>Ejectment for land in Jefferson township. Before Kennedy, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[There was a severance until 1880, when Herman Handel, having bought the surface, purchased one-third of the coal from one of these parties that had purchased from Robb. He purchased the share of Mr. Keenan. It was conveyed first to Mr. Jack, who reconveyed it to Mrs. Keenan, and then it was bought by Mr. Handel some time in 1880. The purchase ■of the surface by him was about September 11, and he purchased the coal by deed of September 27, 1880. Then, I instruct you, there was a union of the surface and the coal, the title of the surface and the coal, and that Herman Handel, being in possession of the surface, after this purchase, Was also in possession of the coal, holding it for himself and for these two other shares, for whom he would in law be trustee. So there was a union, or merger, a coalescing, as it has been' called in the argument, of the title to the coal and the surface at the time Mr. Handel bought the surface first and the coal afterwards. Herman Handel held the surface entire, and one-third of the coal for himself, and two-thirds for these other two purchasers or their heirs.] [7]</p> <p>Plaintiff presented this point:</p> <p>2. If the jury find that Pauline Handel Jordan, and those under whom she claims, held peaceable, adverse, notorious, continuous and exclusive possession of the land in dispute, under a claim of right for a period of more than twenty-one years, then their verdict must be for the plaintiff. Answer: This point is affirmed; I so instructed you in my general charge. [9]</p> <p>Defendant presented the

<p>In error from the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge.</p> <p>John Doe, on the demise of Moses H. Bonney, brought his action • of ejectment in the court below against the plaintiff in error, for the recovery of certain premises alleged to be in possession of the plaintiff in error.</p> <p>The plaintiff proved in support of his title, that the premises were originally purchased from the government of the United States by William Hall, deceased, under whom both parties claim title. That Hall afterwards died, leaving five heirs, among whom were A. C. Hall and ithoda Pierce, to whom said premises and his other estate descended. He then proved that a judgment was rendered in the Circuit Court of Yazoo county, in favor of Marsh, Cothran, and Neill, against said A. C. Hall, and that an execution was issued thereon, and levied on the premises in controversy, as the property of said A. C. Hall; and that the premises were sold thereunder in 1848, and previous to the commencement of the suit, and purchased by his lessor, Bonney. Possession of the land was admitted to be in Wildey.</p> <p>The defendant offered in evidence the record of the proceedings of the Probate Court of Yazoo county, upon an application made for a partition of the lands of said William Hall, among his heirs, from which it appeared that the commissioners appointed to make the partition had divided the land of said William Hall into five lots, which were respectively numbered from one to five, inclusive; that these lots were, by agreement among the other heirs and A. 0. Hall, acting for himself and Rhoda Pierce, divided amongst them, as follows: — “A. 0. Hall agrees to take for his own share and Mrs. Pierce’s, lots numbered two and five, by being paid two hundred and fifty-dollarsand the remaining lots were each respectively selected by one of the other heirs. This report was confirmed by the Probate Court. The land in controversy was lot No. 2, mentioned in the report of the commissio