Pipkin v. Allen

1. Where a final judgment in a partition suit has not been rendered, a 'writ of' error will not lie. 2. Where two own a tract of land as tenants in common, and a third person acquires title to a portion thereof by adverse possession under the statute of limitations, the portion thus lost will be the common loss of the two estates held in common, and will be distributed between them according to their respective interests. 3. Where a person, owning a tract of land containing, say twelve hundred acres, conveys five hundred acres thereof, not designating the land conveyed by metes and bounds, the purchaser will hold an undivided interest in the whole proportional to the number of acres conveyed to him.

Error to Jefferson Circuit Court. This was an action for partition of a tract of five hundred and forty arpens of land. The facts are briefly as follows: The plaintiffs Pipkin and Beal claim to be tenants in common with the defendants of said tract. Plaintiffs claim two hundred acres each, leaving forty acres for defendants. David Boyle claimed a settlement and improvement right containing one thousand two hundred and twenty arpens. Sis hundred and forty acres of this tract were afterwards confirmed by the United States. On the 23d of November, 1813, Boyle executed a deed of conveyance, recorded February, 1814, in favor of William Bussell. By this deed Boyle conveyed to Bussell a tract of seven hundred and twenty arpens, described as follows: “ Seven hundred and twenty arpens of land, be the same more or less; that is to say, that said David Boyle claimed a settlement and improvement right of one thousand two hundred and twenty arpens of land situated on Sandy Creek, in the late district (and present county) of St. Louis, five hundred arpens of which have been selected by the recorder of land titles as being ratified by the law of Congress ; which five hundred arpens the said David Boyle and Jenny his wife have sold to James Anderson ; the balance and remainder of the said tract and claim of land, being seven hundred and twenty arpens, on Sandy Creek as aforesaid, which said balance of seven hundred and twenty arpens, be the same more or less, as the title thereof, or of any part thereof, is or may be eventually ratified, he, the said David Boyle, for the sum and consideration aforesaid, does by these presents grant, bargain and sell to the said Bussell, his heirs and assigns forever, together with all hereditaments and appurtenances which to the said seven hundred and twenty arpens in anywise belong, to him the said Bussell, his heirs, &c., at the entire risk and hazard by him, the said Bussell, without any recourse whatever to the said Boyle or his heirs for the consideration money, or for any other costs,” &c. Plaintiffs claim title ■under said James Anderson. Anderson died in St. Louis in 1812. On the 28th of February, 1814, Boyle conveyed by metes and bounds five hundred arpens of said tract of one thousand two hundred and twenty arpens to Adam Brown. Evidence was introduced with a view to show that the tract thus conveyed to Brown was the same that had been previously conveyed to Anderson. Brown, in 1815, conveyed the same to one Hammond. Hammond conveyed four hundred acres to William Russell in 1817. Hammond conveyed one hundred acres to one Metts. This tract of one hundred acres conveyed to Metts had been in the adverse possession of Metts for more than twenty years. It was embraced within the sis hundred and forty acres confirmed to Boyle. Evidence was introduced with a view to show that the sale of Boyle to Anderson had been rescinded. It consisted of statements made by a witness to the effect that he had, after the sale to Anderson, seen the horse and cart, that he understood constituted the consideration given by Anderson to Boyle, in the possession of Anderson. Defendants claim title under William Russell. The court gave the following instructions at its own instance : “ 1. The adverse titles of the plaintiffs and defendants in this cause depending on a priority of the dates of their acquisition by each respectively from David Boyle, the confirmee, the jury will render their verdict for the party who has shown the prior right. 2. The defendants, having shown a chain of title deeds from David Boyle to themslves, are entitled to their verdict, unless the plaintiffs have satisfied them that before the date of the deed of Boyle to Brown, said Boyle had sold the land in controversy to James Anderson, which sale remained uncancelled or undisposed of by him at the date of his (Boyle’s) deed to Brown ; and if they find the latter proposition to be true, they will find for the plaintiffs. 3. By the law in force in the territory of Missouri at the date of the alleged sale by Boyle to Anderson, a verbal contract of sale was sufficient to pass a title from him to said Anderson, and no deed was necessary for that purpose.” The court gave the following instruction at the instance of the plaintiffs: “ 4. The recital contained in the deed from David- Boyle to William Russell dated November 22, 1813, that David Boyle and Jenny his wife had sold to James Anderson five hundred arpens of the tract of land mentioned therein, is evidence of that fact for their consideration against the present defendants; and unless the jury find from the evidence in the casé that such sale was afterwards cancelled by the parties, the plaintiffs are entitled to an interest of five hundred arpens in the tract of land mentioned in the petition, and the jury will so find.” The defendants asked the court to instruct the jury as follows : “ 5. If the jury find from the evidence that Metts became the owner of one hundred acres of the land, five hundred arpens, in controversy, then, if the plaintiff recovers at all, he can only recover the five hundred arpens diminished by one hundred acres. 6. If the jury find from the evidence that the agreement between Boyle and Anderson in reference to the five hundred arpens of land was rescinded, or that the agreement was transferred by Anderson to Brown, and that Boyle made the conveyance to Brown in fulfillment of the agreement, the plaintiff can not recover, and the jury will find for the defendants.” Of these the court refused instruction No. 5, and gave instruction No. 6. The jury found the plaintiffs “ entitled to three hundred and twenty-five acres of the land in controversy. ” The court ordered that partition be made among the parties according to their respective rights as ascertained, and appointed commissioners to make partition. At this stage defendants sued out a writ of error to the supreme court. 1. Plaintiffs, if they have any rights, have mistaken their remedy. There is no tenancy in common in the case. No one sets up a claim adverse to Mrs. Allen to the land outside the five hundred arpens. Pipkin and Beal own by metes and bounds. The boundaries of the five hundred arpens are clearly defined in the deed from Boyle to Brown. The'instructions given were erroneous. The first instruction assumes that the titles of both plaintiffs and defendants are good, without referring to any fact to be found by the jury. The second instruction is also erroneous. The third instruction is also wrong. Yerbal sales under the Spanish law, to be valid, must be followed by possession. Anderson never was in possession. Metis owned one hundred acres out of the five hundred arpens. 'Plaintiffs had no right to make that land off of defendant. The instruction asked by defendant should have been given. Í. There is no final judgment upon which a writ of error will lie. (26 Mo. 506 ; 20 Mo. 432.) The interest of Pip-kin and Beal was an undivided interest as tenant in common. The five hundred arpens were to be carved out of the whole survey. The deed to Brown is to be thrown out of the account. Wo are not bound by the recitals of that deed. The sale to Anderson was prior in point of time. Anderson was dead when the deed to Brown was executed.