Waldo v. Russell , 5 Mo. 387 ( 1838 )

Tompkins, Judge,

delivered the opinion of the court.

Waldo brought his action of ejectment against Russell in the circuit court, and there had judgment; to reverse ■which Russell appeals to this court.

On the trial of the cause, the plaintiff gave m evidence the transcript of a judgment obtained before a justice of the peace by Waldo, the plaintiff in this cause, against John A. Veitch, on the 16th day of August, A. D. 1834, which was filed in the office of the clerk of the circuit court of Franklin county on the same day. He then gave in evidence two executions issued by the justice on the same judgment, the one dated the 16th day of August, 1834, and returned the 15th day of September, then next, “wo property found.”

The second execution was dated on the 15th day of September in the same year, and that also was duly returned not satisfied. The justice also certifies the issu-ingand returning of these two executions, as they appear on the.ir face.

The plaintiff then gave in evidence an execution issued on the same judgment, filed as aforesaid in the office of the clerk of the circuit court .of Franklin county, by the clerk of that court. By the return on the execution, it appears that the land in question was sold to satisfy the execution, and that the plaintiff, Waldo, was the purchaser. A copy of the patent to Veitch for the said land was given in evidence, notice being given to the defendant to produce the original. The sheriff’s deed to Waldo, the plaintiff! for this land, was also given in evidence.

After the introduction of all this evidence by the plain-tut, an objection to it was made m these words: “to the introduction of which to the jury as evidence in above cause the defendant objected.”

JLhe objection, taken m a literal sense, goes to the sheriff’s deed only. But had the objection been made in these words, “to the introduction of all which as evidence,” &c., still it would have been., a very improper manner of making an objection to evidence, and the cuit court would have acted correctly in paying no attention to such a general objection. It was the duty ot the defendant to object, in the progress of the suit, to each particular part of the evidence which he deemed objectionable. The. plaintiff might, perhaps, have been able to cure a defect or to-find other evidence, and the circuit court ought not to, be pointed to a mass to search for the objectionable part of. the evidence. The whole of the evidence, however, has been carefully examined; and I have no hesitation in saying that all the evidence material to the issue was rightly admitted. The transcript of the justice’s judgment was filed, as appears by the endorsement of the clerk of the circuit court; and two executions issued, and in due time returned, before the execution was issued by the clerk of the circuit court.

Where the sub-to^ deed wasleSS proved to be erred’ ilTrefusin the° admission secondarv testimony to establish tie pilrchas^a/shev-iff’s sale against sion'wbo under'def. in cution. Pltf. proved the judgment, deed?&c.’,and def. offered in evidence a deed from deL in execution tQ one A., and another from A. to himself, both dated prior tothejud~ment, but neitherof which had been recorded. Held, that the deeds, not having been recorded, were no bar, and properly rejected in the court below.

To the admission of the copy of the patent in evidence, no objection is seen. It is not to be expected that the register of the land office would surrender the patent to any other thau the holder o f the receipt for the price of the land; and it could not be expected that Waldo, the purchaser at sheriff’s sale of Veitch’s land, would be so highly favored by him as to be entrust-cd with the keeping of his receipt, rather than the defendant, found in the occupation of the land with the probable assent of Yeitch.

The evidence on the part of the defendant, is an instrument of writing made by Veitch, by which he conveys to one Joseph McCoy, for a valuable consideration, the land in question, with covenant for future assurance-when a patent should be obtained. This writing was dated 2d August, 1834.

He offered also in evidence a deed purporting to be mad® hy said McCoy to himself for the same land, and proved that the subscribing witness had been reported Relievedto have died hr Texas. The court refused, this evidence, to suffer this deed to be proved by sec-ondary evidence. In this the circuit court appear to have committed error, but an error which did no injury to the defendant. For neither the deed of Yeitch to McCoy, nor that of McCoy to Russell, had been recorded, and consequently could avail Russell nothing against the sheriff’s deed to Waldo, the plaintiff, although the deed of Veitch to McCoy was fourteen days older than the judgment under which the sale to Waldo was made by the sheriff. The date of this judgment was 16th August, and it was filed on that day. The deed of Veitch to McCoy was the 2d August, 1834.

But the deed from Veitch to McCoy, if it had been re-corded, was sufficient to bar the right of Waldo to rehut T not being recorded, Russell could not have aided by proving and reading to the jury the deed from McCoy to him. It may be remarked, that inas-much as both plaintiff and defendant claimed under ^ eitch, the patent was not a necessary part of the.plain-tiff’s evidence. For the reasons above given, it appears me that the judgment of the circuit court ought to be affirmed, and Judge McGrna concurring, it is affirmed.