28 Mo. 438 | Mo. | 1859
delivered the opinion of the court.
Prior to the act of June 22,1821, (1 Terr. Laws, p. 757,) there was no statute in this state which authorized the conveyance of her real estate by a married woman. That act prescribed a mode by which the husband and wife might dispose of the wife’s land, with á proviso that it should not authorize in anywise husband and wife to convey any estate granted to the wife and heirs after intermarriage. The land in controversy was an interest in a village lot of St. Louis of one by forty arpens, the right to which was proved before the recorder of land titles in the name of the legal representatives of Auguste Condé under the act of Congress of 26th May, 1824.' Auguste Condé died in 1776 leaving two daughters, Mary and Constance. Constance intermarried with Patrick Lee on the 18th July, 1797, and they, on the 10th day of December, 1823, conveyed to L. A. Benoist one-half of the arpent of one by forty arpens described as being the north half of a tract of land granted to Auguste Condé, as appeared by livre temen No. 2, p. 27. The tract described included the lot which is the subject of this controversy.
The proviso in the act of 1821, which imposed a partial restriction on the right of the wife to alienate her property, was not in accordance with the principles of the common law and did not receive much countenance, as we find that it was repealed by an act passed the 16th January, 1833, and has never since been restored to our code. Under such circumstances there is no reason in justice nor policy which will warrant its receiving any other construction than that which its language will fairly warrant. It is true that on a Spanish title not complete before the change of government, a party had no standing in a court of justice, except so far as it was given to him by the legislation of the general or state government; and, except he had such aid, he could maintain no action for the enforcement of this unconfirmed grant or concession in any court, state or federal; nor could he maintain any action in which the title to the land was involved, for, as in all such cases the ultimate title was in the United States, it was useless to litigate respecting it before its emanation. But, notwithstanding this, it is well known that in-. complete Spanish grants were as much regarded as property as real estate with a perfect title, in all contracts, and under the administration and execution laws, and also under the law of wills, descents and distributions. In the case of Landes v. Perkins, 12 Mo. 259, it was said that “ it is a matter
These considerations we deem sufficient to show that, although for some purposes unconfirmed grants could not be
The fourth instruction given for the defendant, although it may contain a correct principle in the abstract, yet assumes that the deed of Lee and wife was properly in evidence. Although the acknowledgment may have been sufficient to pass the estate, yet if it was not in such form as would authorize the instrument to be recorded, a copy of its record would not be evidence. In support of the view that the deed was properly read in evidence, the defendant maintains that the statute of December 6,1821, (1 Terr. Laws, p. 799,) directing the officer taking the acknowledgments of deeds to certify his knowledge of the identity of the grantors, did not require
In the second place, it was maintained that under the fifty-eighth section of the act concerning evidence, the deed of Lee and wife was admissible because it had been recorded for ten years, and there was evidence that for ten years consecutively it had been claimed and enjoyed by those claiming through or under such deed. We do not see the application of the section to which reference has been made to the present case. If the deed was not properly recorded for
We are of the opinion that the certificate of the acknowledgment of the deed by Lee and wife was sufficient to make it effectual for passing the title to the wife under the act of 22d June, 1821. That act seems to have contemplated that the court, before which the acknowledgment of the married woman would be taken, would be composed of more than one judge, and hence requires that one of them should examine the wife and afterwards that she should acknowledge the writing to be again shown to her. At the date of this acknowledgment the circuit courts were composed of but one judge. If the statute is to be literally construed, then no court in which there were not two judges at least could take an acknowledgment of a married woman conveying her land; No one will maintain that the law intended that the circuit courts should be denied the power of taking the acknowledgments of married women to deeds conveying away-their
The certificate of the acknowledgment of Mrs. Gamier to her and her husband’s deed of the 29th of April, 1827, is sufficient. It is not pretended that a certificate of acknowledgment can be helped out by parol evidence, but it will be construed in reference to the laws in force which authorize it to be taken. In this certificate it is stated that “ at a term, &c., before me, M. P. Leduc, judge of said court, personally appeared Marie Gamier,” &c. This is the most usual form of making up records. If a party appears at a term before the judge of the court composed of a single judge, we can not see how it can be more forcibly expressed that he appeared in court. The act of 1825, under which the deed was acknowledged, did not require that it should be done in open court, and, if it did, we are of the opinion that it so appears from the face of the certificate. The wife was required to appear before some court of record. We can not conceive how the matter could be made to appear more plainly than it does. The certificate is given under the seal of the court and by one styling himself the judge thereof, the court having no clerk.
The objections to the admissibility of the deed of Tholo-zon and wife in evidence are not valid. The effect of the deed as evidence is another question. Our code at the date of the deed did not and at no time since has prescribed a period within which a deed must be recorded. The deed
Adele Tholozon married in 1819. Her mother, Mrs. San-guinette, died in 1821. The land which she conveyed by deed to Lavielle and Morton in 1830 she inherited from her mother. It was no grant then to her and her heirs within the pi’oviso of the act of 22d June, 1821.
The sixth instruction asked by the plaintiff in relation to the effect of the deed of Tholozon and wife was erroneous, inasmuch as it required the court to direct the jury that the plaintiff must not only have had actual notice of the deed to Laveille and Morton, but also that it had been acknowledged by Mrs. Tholozon and her acknowledgment certified in such manner as to pass the estate of a married woman during marriage. The registry act requires no such notice. If a purchaser has actual notice of a prior unrecorded deed, he must at his peril ascertain whether it is valid; if he purchases with a knowledge of its existence, he takes upon himself the risk whether or not it is valid.
There was no error in refusing the seventh instruction asked by the plaintiff. The fact of the delay in recording the deed from Tholozon and wife was no evidence of itself of any fraud. Every day’s experience and observation satisfy us of the truth of this. Nor did the delay furnish any ground for a presumption that the deed had been cancelled,
If the original deed from Lee and wife to Benoist has been lost or destroyed, a copy of it may be proved like the copy of any other lost instrument. We are not aware of any rule or principle of law which would require any greater or stricter proof of the copy of the certificate of the acknowledgment of the wife than of any material part of the deed. If the acknowledgment is endorsed on the deed and is sufficient in law, we do not see why the evidence that would satisfy the jury that the copy of the deed is a true one, would not also satisfy them that the copy of the acknowledgment on the deed is also a true one, nothing appearing which shows that it is not so.
Reversed and remanded;