Brown v. Cleaveland, 5 Mo. 65

Tompkins, Judge, delivered the opinion of the court. Brown brought an action of ejectment against Cleave-land in the circuit court, and judgment being there given againsthim, he prosecutes this writ of error to reverse that judgment. In his declaration, Brown claims four hundred arpens of land, originally granted by the Spanish Government, and confirmed by the United States to Benjamin Stro* ther. The plaintiff filed a bill of particulars, by which it appears that he claimed three hundred arpens of land under William Shannon and Susan his wife.

On the trial, he offered in evidence a'deed from Shannon and wife, dated the 12th of March, 1823, acknowledged and recorded as the act of the General Assembly then required, for four hundred arpens. The handwriting of Shannon was proved, but no proof of his wife’s handwriting was offered. The circuit court decided that the deed should not be given in evidence. In the recital in the deed offered in evidence, title was deduced from Strother, the grantee of the Spanish Government, and confirmee of the United States Government. The rejection of this deed was assigned as error. The defendant in error contended: 1.

That the deed did not accord with the bill of particulars, and therefore, was not admissible in evidence. 2. That the signature of Susan Shannon, the wife, should have been proved, to authorize the plaintiff to read it in evidence. Plaintiff in ejectment filed a bill whfc^he claimed 300 arpens ofland from s. and wife, offered inevi-6 dence a deed for 400 arpens from ffiat'the'cmirtlje-or low improperly excluded the ber of acres it purported to concord'wlth'the^ill of particulars, ¡T rovo SdwrFtingof ° the wife — it ap-Facerf^th^deeÍT that she only conveyed her tight dower.

Admitting that a bill of particulars in this case was properly demanded, and that the plaintiff' was concluded thereby, which is not so very clear, still no good reason 's seen wiry this deed should not have been given in evidence.

It might have been true that Shannon and wife had no right to convey more than three hundred arpens, that the plaintiff’ had alienated one hundred arpens; but it certainly could have been no objection to the deed that it purported to convey more than he claimed in his Part'culars- The identity of the land named in the deed, and that claimed in the bill of particulars, was the material thing, and. might have been proved by other ev*dence. A deed may be made for a thousand acres, and yet, if the land described amounted to a less quantity, no body would doubt that the deed was good for tme quantity. 2.

From the face of the deed, it appears that Susan Shannon, the wife of the grantor, joined in the deed for n0 ot^er PurPose than to relinquish her right of dower, ^ Shannon, the husband, was at the time of trial still living, she could have no right of dower, and Brown, the alienee, would have the right against Cleaveland to recover the whole quantity; but if, from evidence adduced, it had appeared that Shannon, the husband, was dead, Brown might yet recover so much of the land as the widow could not take in right of dower.

It seems, for these reasons, that on proving the handwriting of Shannon, the husband, the deed ought to have been read to the jury; and that the judgment of the circuit court ought to be reversed, because the deed was not permitted to be read in evidence; and the other Judges concurring in this opinion, it is reversed.