Frost v. Pryor

Opinion of the Court, delivered by Napton, Judge.

The appellee brought an action of assumpsit against the appellant, in the Clay circuit court, on the following note:

“We, or either of us, promise to pay to George M. Pryor, the just and full sum of one thousand eight hundred and six dollars and twenty-five cents, bearing ten per cent, interest from the date until paid, and to be paid within one month *315 from the time the said Pryor shall perfect his title to the tavern lots and property attached thereto. Given under hands this 29th day of April, A. D. 1840.

Wherethedeo-laration is de-in the averment,04“ -without proving which ,, the jury ought not to have diet Vthe plaintiff, such cured 1Sby verdict, and, therefore cannot be ta-oflrfmotion in arrest of judgment.

*315 P. S. Frost.,

J. P. Frost,

Isaac Frost.”

On the trial of the cause, the plaintiff below, to show title, offered in evidence several conveyance, to all of which conveyances defendant objected generally, but the objections were overruled by the court. Among other deeds offered and read in evidence, were a patent from the United States to one John Owens, deeds from Owens and wife to one Sear-cy, deeds from Searcy and wife to one Poter Fleming, deeds from Poter Fleming and wife to John Chauncy, a power of attorney from said Chauncy to G. L. Hughes, and a deed from Hughes to the legatees of G. W. Ilendly. The plaintiff also offered a deed from Peter 13. Grant and wife (the-latter being one of the legatees of said Ilendly,) acknowledged before a justice of the peace, and deeds from the other legatees to Pryor, and from Pryor to Frost.

Some oral testimony was introduced, though objected to, for the purpose of identifying the lots described in Chauncey’s power of attorney. Several witnesses testified in relation to conversations had with Frost, conducing to show that Frost was advised of the nature of the title, had examined the same, and objected only to the power of attorney.

A verdict was-found for the plaintiffs, and judgment given accordingly. Motions were made in arrest of judgment and for a new trial, but the motions were overruled.

The errors assigned are, that the declaration was defective, containing no averment that Pryor had given notice to Frost of his title when perfected, that the court admitted incompetent testimony, and that a new trial was improperly refused.

The declaration is clearly defectivo; but as the defect consisted of an omission of an averment, without proving which , . 1 & *tne jury ought not to have found a verdict, it cannot be ken advantage of by motion in arrest. The title papers are spread upon the record by bill of exceptions. It seems that " 1 *316 the objections made to each of these papers, were general $ specific objection was pointed out to the court below, nor do the grounds of objection taken in the circuit court apPear 011 the hill exceptions. It is apparent that these general and sweeping objections to the introduction of a mass . , , . oi testimony, either oral or written, do not present the P°^nts which may have been determined in the circuit court, and it may become a question whether this court will be authorised to look into such exceptions, whilst our statutes declare that this court shall review only such matters as have * been expressly decided by the court below. ■ In this case, however, the deed from Grant and wife to Pryor was a link in the chain of title, which was clearly defective. The deed was acknowledged before a justice of the peace, and purporting to convey an interest in land to which the husband ha<i no except by right of his wife, was incompetent to affect the rights of the wife. It appears plain, then, from the bill of exceptions, without going into an examination of jj-s details, that no title was shown in Pryor, even at the trial, , , , much less then could it be presumed that the title was perfected before the institution of the suit; a condition precedent to the plaintiff’s right of recovery. Let the j udgment therefore be reversed and the cause remanded.

The plaintiff, precedent*"1011 agreed to ^ tendants, a good title to certain premises. One of the plaintiff's chaiu of title, ancea 'of'Tlre premises in question by H. and his wife, acknowledged before píace‘.CIífhad no interest in the premises exceptinright HeWSthatthe deed thus ac-the1” ht the wife, and premises.

As all the evidence given on the trial of this cause is preserved in the bill of exceptions, and as it appears from that evidence that no notice was given of the perfecting of the , , , . title, and as indeed the party appears to have been unable to give the notice, for his title had not been perfected, it cannot be presumed that notice was proved on the trial. This is unlike those in which an appellate court is required aires^ die judgment from an examination of the declaration alone, unaccompanied by a bill of exceptions preserving evidence.

W. ScOTT.