78 Mo. 452 | Mo. | 1883
This is an action of ejectment for an undivided interest in 160 acres of land in Johnson county, Missouri, commenced in the circuit court of that county, January 21st, 1879. The petition is in the usual form; and the answer a general denial, except the admission that defendant was in possession. The trial was before a jury, and the verdict and judgment were for defendant; tore-
For the purpose of showing this prima facie title out of plaintiff and in himself, defendant offered in evidence a deed from the admitted heirs of G. F. Maus, to Ursula Reiter, embracing the land in controversy, dated July 7th, 1866, and purporting to be acknowledged before O. H. Gordon, clerk of probate of Moniteau county, Missouri, on the day of its date. This deed is signed by plaintiff and her then husband, whose names appear on the face of the deed and in the certificate of acknowledgment, but the certificate of the notary entirely omits the piivy examination of the plaintiff, thus rendering the deed void as to her. To remedy this defect the deed was sent to Gordon, who, oh April 5th, 1871, indorsed a proper certificate upon it, containing the privy examination of plaintiff. This certificate recites the appearance of the parties as of the date of the deed. In the body he describes himself as clerk of the probate court; but the testimonium is as follows: “ In testimony whereof I have hereunto set my hand and affixed the seal of said court this 5th day of April, 1871. C. M. Gordon, late clerk of probate court.” This deed was objected to by plaintiff, because not properly acknowledged. The objections were overruled, and the deed admitted. Defendant then introduced a deed from Ursula Reiter and her husband to him
Plaintiff, in rebuttal, offered evidence to show that she never was, at any time, subjected to a privy examination by Gordon. Defendant, also, offered parol evidence tending to show that the facts stated in the certificate of April 5th, 1871, were true. An agreed statement of facts was read in evidence showing that Gordon was not the clerk of the Moniteau probate court, at the time he attached the amended certificate to the deed in controversy, and did not pretend to be acting in any official character whatever in performing said act; but that he was such clerk at the date of the deed, and when he took the first acknowledgment.
The only question in this case relates to the validity of the amended certificate of acknowledgment, placed upon the deed from the heirs of G. P. Maus to Ursula Reiter, by Gordon, the former clerk of the Moniteau probate court, long after his official term had expired, and when he had no official authority nor any right to the custody or use of the seal. The facts surrounding this question are very plainly stated above, just as the record shows them, and need not be stated here; in fact, there is no dispute about them.
Respondent relies on the cases of Wannall v. Kem, 51 Mo. 150, and 57 Mo. 478. A critical examination of these cases will disclose that they do not satisfactorily decide the question in the form here presented. The case first cited was a bill in equity to foreclose a mortgage, executed by Kem and his wife, on lands belonging to the wife in fee, to secure a note alleged to have been executed by them to plaintiff’s indorser, and to correct a mistake in the mortgage, the alleged mistake being in the omission of the notary to insert in his certificate of acknowledgment the privy examination of Mrs. Kem, although he had actually taken the same. The notary was made a party. The relief
The second case cited between these same parties was an action on the note secured by the mortgage, which was given to one Brolaski, the plaintiff’s indorser, for certificates of stock in a gas works company. One defense was, that the note was secured by fraudulent representations as to the stock. Mrs. Kem interposed a separate defense to the effect that she never was, in fact, subjected to a privy examination by the notary. These issues were tried by a jury, who found for defendant. Napton, J., in disposing of some questions put to Mrs. Kem, while on the stand as a witness, tending to prove that she really knew the contents of tile deed and really executed it voluntarily, etc., having been informed by her husband, comments on and explains the policy of our statute in requiring those facts
It is a little remarkable that the real point in issue in the first case is classed as decision, while the point as to the power of the officer to grant the amended certificate is merely classed as intimation. After stating the fact that a perfect certificate was substituted for the original, which, was erased, long after the acknowledgment, he remarks : “If we assume this last certificate as true, and stating the facts as they occurred, it is plain that the notary, at the date of his examination and certificate, was perfectly aware of what was required by the statute.” The effect this strange conduct of the notary might have had on the minds of the jury, in producing a verdict for Mrs. Kem, is then commented on. The defense was finally disposed of on the ground that there were no improper instructions, and the verdict was conclusive on the facts. 57 Mo. 483, 484. The sixth instruction given by the court explains the probative force of the amended certificate, as prima facie true, and tells the jury to find a verdict against Mrs. Kem on it, provided they also find a verdict against Kem on his defense of fraud, and she has not disproven the certificate. 57 Mo. 487. The remainder of the case contains a learned discussion of Kern’s defense of fraud, which is finally disposed of on the strength of the verdict of the jury.
These cases certainly furnish no authority for extending the doctrine sought to be maintained by them, to a person who was an officer when he made the defective certificate, but had long ceased to be such officer, and was acting in a strictly private capacity when he made the amended certificate, as was the fact in the case at bar. In the Kem cases the notary was still in office, surrounded by the sanctity of his official oath, deterred by the penalty of his official bond, and resting under the fear of punishment for official misconduct. These are the safeguards which the statute has, in the wisdom of its policy, thrown around the estates of married women, and the courts have jealously guarded and protected them in the construction and enforcement of the statute, as the adjudicated cases will plainly demonstrate.
These facts were not present in this case when Gordon attached his amended certificate. lie made no pretense of any official capacity, but only assumed to act as a private individual in performing an act which should have been done under the seal of official sanctity. "What right had he to imprint the official seal of the court, which had passed into the custody of another, who was alone empowered to imprint it, on any legal document ? Suppose he had made a false certificate, as it is alleged he did, where is the protection of the plaintiff on his official bond, or her right to
For the reasons stated, the judgment should be reversed and the cause remanded.