Beal v. Harmon

38 Mo. 435 | Mo. | 1866

Wagner, Judge,

delivered the opinion of the court.

This was an action in ejectment brought in the Circuit Court of Jefferson county to recover certain tracts of land lying in that county, containing about sixty-five acres. The record discloses the facts to be, that the land was originally entered by Amanda Wright, a minor, whose guardian was one J. T. McMullen, and that he petitioned and obtained an order from the County Court of Jefferson county to sell the same for her maintenance and support. The land was duly appraised at the sum of one dollar and fifty cents per acre, and at the sale the guardian became the purchaser at and for the price of one dollar and ten cents per acre. The sale was approved by the court, and an order was made directing the clerk to make and execute a deed to the said guardian as the purchaser thereof; that McMullen afterwards sold the land to Ogle, who sold to Harmon the defendant, who is now in possession. The sale took place in 1847, and in 1849 Amanda Wright intermarried with one Gamache.

There was a mistake in the deed conveying the land from McMullen to Ogle and from Ogle to Harmon, so that all the land was not included, though it is clear that it was intended so to be. When the mistake was discovered, Harmon applied to Gamache and wife and Ogle to have it rectified, and finally paid eighty dollars in consideration that they would make him a new deed supplying the defects and omissions of the prior conveyance. Gamache and wife and Ogle all joined in this second conveyance, and the instrument was acknowledged before a justice of the peace in the county where the land was situated. This last deed was executed and acknowledged on the 5th day of January, 1856, but by the neglect or carelessness of the person drawing up the same it contained the same description only and embodied the same mistake which was committed in the first conveyance. Ogle was an ignorant man and could neither read nor write, and Harmon a German, unacquainted with our language. On the 1st day of November, 1860, Gamache and wife • commenced this suit in ejectment, and subsequently sold their interest in the premises to Beal, who was substituted as plaintiff of record. Beal, it seems, was the attorney of McMullen the guardian, and advised and procured the order of sale in the county courts, and is alleged to have had full notice of the mistake in the subsequent transfers.

The court rendered a judgment reforming the deed so as to vest the land unintentionally omitted in Harmon, and then proceeded to adjudge that Harmon was entitled to the land during the life of Gamache, and that upon the death of Ga-mache he should surrender the premises to Beal, the legal owner of the fee; and also gave judgment in favor of Beal for seventy-five dollars for waste committed on the premises, and awarded execution therefor. From this judgment Harmon sued out his writ of error.

The proceedings in the County Court of Jefferson county, at the instance of McMullen the guardian, weré void, and he took no title by purchase at the sale. The law then in force only authorized the County Court to order the sale of real estate belonging to a minor to procure and complete the education of such minor, but no power was given to sell for support and maintenance. The guardian occupied a relation of trust and confidence towards his ward which precluded him from bidding or purchasing at the sale made and conducted by himself, and there was no warrant in law for the action of the court in directing the county clerk, to execute to him a deed to the premises. No title, therefore, could be derived either through or from him.

But it is objected on the part of the defendant in error, that the deed made by Gamache and wife to Harmon on the 5th day of January, 1856, conveyed no title, because it was defectively acknowledged. The acknowledgment was taken before a justice of the peace, and the law at the time required that to pass the wife’s estate the deed should be acknowledged before an officer of a court of record.

The plaintiff in error relies on ,an act of the Legislature approved February 15,1864, by which it is provided that the acknowledgment of a married woman conveying her separate estate may be taken before any court, judge, justice, or clerk thereof, notary public, or any justice of the peace in the county within which the real estate conveyed is situated — Laws Mo. Adj. Sess. 1863, p. 27. And by the second section of the act, all such acknowledgments taken and certified by a notary public or justice of the peace, in due form of law, after the first day of January, 1856, were ratified and confirmed. We express no opinion as to the effect of the act concerning acknowledgments which were taken before its passage; but the deed was sufficient to convey the husband’s life estate if it did not convey the fee, and such a title is good to maintain or resist an action of ejectment—Bryan v. Wear, 4 Mo. 106.

The defendant then hold the premises under a legal title, with actual possession; and before a plaintiff can recover in ejectment, he must show both a legal interest and a possess-ory title — R. C. 1855, p. 689; 2 Greenl. Ev. § 303 ; Adams on Eject. 33. In ejectment-, the plaintiff is only entitled to recover for waste when he prevails in the action — R. C. 1855, p. 692, § 18.

The assessment of damages in this Case, and the judgment as entered by the court, were wholly unauthorized, and it is

• therefore reversed and the cause remanded.

The other judges concur.