Elmslie v. Thurman

40 So. 67 | Miss. | 1905

Lead Opinion

Oalhoon, J.,

delivered the opinion of the court.

This case is improperly styled on the back of the record, and on the docket here; the real defendants below, appellees here, being Mrs, M. E. Thurman, R. Lee Thurman, and J. D. Nichols. The apparent first-named appellee of the docket style, Jesse N. Thurman, nowhere appears in the record.

As assignee of purchase-money notes, appellant sought by his bill to enforce the vendor’s lien on land to pay them. She is clearly entitled to a decree of sale unless appellees are right on the solitary contention they make, which will be presently stated. Iier bill avers the conveyance of the land by her assignor and the relation of defendants to it, makes proper averments as to the notes, etc., has an appropriate prayer for answer, but waives oath to the answer. Accordingly, the answer is not sworn to, but dearies the execution - of the deed of conveyance. Appellant offered a transcript of it from the chancery clerk’s office, certified by the clerk; but "the acknowledgment is that the grantor “signed the foregoing deed for the purposes therein set forth as and for his voluntary act and deed,” omitting that he delivered it, and the court sustained an objection to this certified transcript as evidence. It has been held by the supreme court of this state that this omission in an acknowle'dgment is fatal, does not entitle the instrument to be recorded, aaid that its being recorded is riot constructive notice. Buntyn v. Shippers’, etc., 63 Miss., 94. We follow this, and do not stop to draw the distinctioai between it and Hall v. Thompson, 1 Smed. & M., 443. So it follows that, if appellant was under the necessity to produce the deed at all under the pleadings, the decree was right, and if not, it was erroneous.

If tbe certificate of acknowledgment had been simply that he “executed” the instrument, it seems that would imply that he “signed, sealed, and delivered” it, since a deed could not be said to be “executed” without compliance with the terms of the statute as it then was. Smith v. Williams, 38 Miss., 48-56. The people who take acknowledgments are not generally learned in the law, and the intendments of the scope of terms are liberal. Now, under Code 1892, § 1797, it is provided that, where an instrument is sued on, it shall not be necessary to prove “the signature or execution .thereof unless the same be specially denied by a plea, verified by the oath of the party pleading the same.” The waiving in the bill of oath to the answer does not dispense with or affect this requirement in any way. Wanita, etc., v. Rollins, 75 Miss., 253 (22 South. Rep., 819); Thompson v. Bank, 85 Miss., 261 (37 South. Rep., 645). It follows that the conveyance in the case before us must be presumed to have been delivered, and we have nothing else for consideration, except the contention that there could be no recovery because the instrument was hot produced in court. It is true as a general rule that notes, and any mortgage sought to be foreclosed, must be produced, they being presumed to be in plaintiff’s possession, or their absence explained. Vickery v. Roster, 4 How., 293.

But all the eases are where the instruments are properly in the possession of the plaintiff, the object being to protect defendant by restoring them to him or by their cancellation. Here there is no purpose to cancel, but merely to enforce a vendor’s lien by the sale of land in the possession of defendants, on a conveyance admitted by them, as the legal effect of their pleading, or lack of pleading, to have been executed — that is, signed and delivered— to them or their ancestor. Under the old system they could not have demanded oyer of it without showing that complainant had it, and complainant need not make profert of what he did not have, and complainant need not give notice to defendant to produce his own muniment of title, which he has in his own hands, and the execution of which to him'he admits. 2 Wigmore on Evidence, bottom p. 1387; Id., sec. 1199. It would be impossibe that defendants could be hurt by the nonproduction. They produced no evidence whatever. They cannot hold the land and escape payment.

Reversed, and decree here for complainant, but remanded, with direction to the court below to have the amount due on the notes ascertained and to decree sale of the land to pay them according to the prayer of the bill.

---

Concurrence Opinion

Whitfield, O. J.,

delivered the following specially concurring opinion:

I concur specially on the ground that the appellees, who are in possession of the land, cannot keep the land and refuse payment.