Evans & Riehl v. Labaddie , 10 Mo. 425 ( 1847 )

Napton, J.,

delivered the opinion.

The principal question in this case depends upon the effect of the deed from Duncan to Langham, dated 29th June, 1835. That deed purported to convey a certain tract of land in St. Louis county, describing it by its metes and bounds, it being a tract to which the grantor, Bobert Duncan, claimed a pre-emption under the several acts of Congress, commencing with the act of 12th April, 1814. Duncan’s entry of the tract was not made until May 2, 1836, nearly a year after this conveyance to Langham; and this raises the question whether this subsequently acquired title of Duncan will pass to Langham by virtue of the previous deed. The solution of this question depends altogether upon the construction of the third section of the act concerning conveyances, which provides as follows: If any person shall convey any real estate by a conveyance purporting to convey the same in fee simple absolute, and shall not, at the time of such conveyance, have the legal estate in such real estate, but shall afterwards acquire the same, the legal estate subsequently acquired shall' immediately pass to the grantee, and such conveyance shall be as valid as if such legal estate had been in the grantor at the time of the-conveyance. This statute, it will be perceived, is not a recognition of the common law, but is a material modification of it. The doctrine on. this subject at the common law, is thus laid down in Coke Littleton, s.-446: By a release, no right passeth but the right which the releaser hath at the time of the release made; as if the son release to the disseisor the right which he hath or may have, without clause of warranty; after the death of his father, the son may enter against his own release, because-he hath no right at all at the time of the release made, the right being at the time in the father. Had there been a warranty, it would have operated by way of'estoppel. Our statute is silent about any warranty; where the deed purports to convey a fee simple absolute, whether with or without warranty, the subsequently acquired legal title will pass.

It is quite apparent in looking at this act, that a strict and literal construction may be given to it, which will exclude from its operation the title which Duncan acquired by his entry at the United States Land Office. This title, it is said very properly, is not a legal title; that being in the United States until the patent has issued. This objection admits-that if the patent had issued, the title so acquired by Duncan would, by virtue of this legislative enactment above referred to, pass at once to Langham.

Our act regulating the action of ejectment authorizes this action to be1 maintained upon an entry with the Register and Receiver. Whether this title be called then a legal or an equitable one, it is one upon which its holder may maintain an action of ejectment. If we adopt the construction which makes this title by entry a legal title when the action of ejectment is spoken of, but an equitable title only when the act concerning conveyances is construed, we shall have a most singular and awkward condition of things brought about by this legislation. A. conveys to B. a tract of land upon which he has a claim, and subsequently enters the land. His entry will enable him to bring an ejectment, and oust the purchaser, B.; whereas, if the entry had been consummated in a patent, his title would have passed by virtue of this section of our law of conveyances at once toB. and no action of ejectment could have been maintained ! If the title by entry was a mere equitable title, in the proper sense of that term, before the interference of our statute concerning the action of ejectment, no such absurdity would be presented, and the grantee designed to be protected by the third section of the law of conveyances could wait without inconvenience for the emanation of the legal title. But if an entry with the Register and Receiver be such a title as will maintain an ejectment, then it must follow that, whether that title is called a legal or an equitable one, it has all the elements which constitute that sort of a title designed to be affected by that provision in the statute of conveyances to which we have heretofore alluded. That section obviously designed that any title coming to a grantor which would clothe him with the power of turning his grantee out of possession, should not vest there, but pass on directly by operation of law to the grantee.— The words ‘legal title’ are used in this sense, and to all intents and purposes the title which maintains ejectment is a legal one. Will it be pretended that one who has title by entry cannot convey that title to another so as to enable that other to bring his ejectment? I mean where the conveyance is subsequent to the entry. If this be conceded, and it is held, that the title by entry will not enure to the grantee under a grant previous to the entry, but at the same time is a sufficient title to maintain ejectment, then in the interval from the entry to the emanation of the patent, the title will be in a situation to enable the holder to commit the grossest frauds. Here is a conveyance before an entry, and the grantee, so soon as the patent has issued, it is conceded, will get the title which issues to the grantor; but as the title by entry is also capable of being conveyed, and of being conveyed so as to enable the vendee to bring ejectment thereon, a grantee subsequent to the entry will acquire a good title, the continuance of which will depend tip on the amount of business in the Patent Office at Washington.

A second question which has been discussed in this case, arises upon this same deed from Duncan to Langham. This deed conveys the tract of land, embracing the lot now in dispute, to Langham “ subject to the terms and stipulations of an article of agreement between him and A. H. Evans, which bears date, &e., and is herewith delivered to said Langham.” This agreement between Duncan and Evans was made 20th Decern., 1834, and it was in substance that, so soon as Duncan acquired the title from the United States, he “was to let the said A. H. Evans have one-half of the pre-emption,” &c. This, then, was an agreement to convey, not a conveyance. Duncan conveys to Langham subject to this agreement; Langham consequently occupies the position of Duncan and holds the title subject to his agreement to convey one half the land to Evans.

The defendant below, in addition to the objections to the plaintiff’s title already alluded to, relied upon an outstanding title in the St. Louis Common Schools, and a title acquired by himself under a sale by the United States Marshal on an execution against Langham in 1840. In relation to the title of the Public Schools, but little need be said, as the only evidence of that title was a paper from the Surveyor General’s Office purporting to be a designation of this tract of land (among others) as one of those confirmed to the Board of Public Schools by virtue of the act of .1824. This certificate states that the lot in controversy is within the limits of the out boundary cf St. Louis; that it was not owned or claimed by any person in 1812; that it is no part of the St. Louis Common, and consequently it is within the second section of the act of 26th May, 1824. Of these several matters thus certified to, the Surveyor General is not the judge, and his certificate alone has not been made even prima facie evidence of title, as the certificate of the Recorder was under the same act, in relation to another class of lots.

There are two objections urged to the title derived by Evans under the Marshal’s sale: First, that the rules of the court wherein the judgment is obtained were not shown, so that we could ascertain whether the sale was made in conformity to law; and, secondly, admitting the rule to be valid and regular, it only conveyed an equitable title, as Langham had only an equitable title at the time of the judgment upon which the execution issued, and under which the sale was made. The first objection, we think, is not a good one. The third section of the act of May 19, 1828, (4 Story, L. U. S. ch. 68,) declares that writs of execution and other final process issued on judgments and decrees rendered in any of the courts of the United States, and the proceedings thereupon, shall be the same, except their style, in each State respectively, as are now used in the Courts of such State, saving to the United States Courts in those States where there are no4Courts of Equity, the power of prescribingthe mode of executing their decrees in equity;. — provided, that it shall be in the power of the Courts, if they see fit, in their discretion, by rules of court, so far to alter final process in said courts as to conform the same to any change which may be adopted by the Legislature of the respective States, for the State Courts. .The advertisement and sale by the Marshal must be governed, not by any rules of the Circuit Court of the United States, but by the laws of this State. No objections to the validity of their sale, from any want of conformity to our laws regulating sheriffs’ sales, has been suggested. But a substantial objection to the availability of this title in the present action arises out of the fact, that Langham had conveyed the lot in controversy to Sanford nearly a year before the judgment was obtained, on which the execution issued. It is true, that if this conveyance was made by Langham to defraud his creditors, it is a nullity, so far as those creditors are concerned; but this question, if it was designed to be raised, seems not to have been distinctly placed before the jury by any of the instructions asked of the Court. The 8th instruction which the defendant below asked, but which was refused, was in these words: “If the jury find from the evidence that at the time of Sanford’s deed to Labaddie, the plaintiff, Langham, was the owner of the lot in question, and by a previous conveyance from Sanford, and whilst so owned by Langham the United States obtained judgment against Laugham, the said judgment and sale passes the title to the purchaser under said sale.” Here is an assumption of a conveyance from Sanford to Langham about which there was no proof before the jury. A witness, it is true, does testify that whilst acting as agent for an individual who had purchased a lot in this same tract, he called upon Sanford for a deed, by Langham’s direction, and was informed by Sanfordthathe (Sanford) had no title, having reconveyed to Lang-ham. This may be evidence of a fraud, but not of a deed. The 9th instruction was, that the Marshal’s sale and deed pass the title to Evans, the defendant, and the title so obtained by Evans does not enure to Lang-ham. This instruction was also refused, and properly, because it was calculated to convey the impression that the title so acquired was a legal one. In the 10th instruction, the Court is requested to instruct the jury that the statement of W. T. Sanford to Edward Warrens, the agent of the plaintiff, Labaddie, at the time of the execution of the deed from Sanford to Labaddie, that he was not the owner of the land and had previously deeded the same to Sanford, and the testimony of said Warrens that no consideration was paid Langham, together with the fact that La-baddie purchased of Langham the land in question, and paid him, Lang-ham, the consideration, is competent testimony to show title in Langham at the time of Sanford’s deed to Labaddie. The 11th instruction is on the same subject, and its object is to declare the testimony of another witness, that he purchased a portion of the same tract from Langham, •originally belonging to Duncan and sold to Langham, and also took his deed from Sanford at the time, without payment to Sanford, but with payment to Langham, as competent testimony to show title in Langham at and before Sanford’s deed to Labaddie. It is quite apparent that the only tendency of this evidence is to show an equitable title in Langham, with a legal title in Sanford, all of which may have been honest or fraudulent according to circumstances, and those circumstances do not appear. The pecuniary condition of Langham at the time of these several conveyances is not shown; whether he was largely indebted or not, or whether his property was amply sufficient to pay his debts or not, are facts about which no testimony was offered.

The judgment of the Circuit Court is affirmed, Judge McBride concurring.