Hamilton v. Pitcher, 53 Mo. 334

Hamilton v. Pitcher

53 Mo. 334 | Mo. | 1873

Adams, Judge,

delivered the opinion of the court.

This was ejectment for an acre of land in the town of Liberty in Clay County in the State of Missouri.

Both parties agreed, that the original title to the land in dispute was in Moses E. Lard.

To sustain the issues on- his part, the plaintiff offered in evidence a deed from said Lard and wife “ to Margaret W. Pitcher, wife of Samuel D. Pitcher, and her children, of the County of Olay and State of Missouri, of the second part,” which conveys the land in dispute to “said party of the second part, and to their heirs and assigns forever.” The haben*335dum isTo them, the said party of the second part, “and to their heirs and assigns' forever.”

The deed was acknowledged before a Notary Public of Clay county, the certificate of acknowledgment being in due form under the notary’s seal of office. The -defendants objected to the deed, because the notary had not been duly commissioned although adting as notary. This objection was overruled.

The plaintiff then offered in evidence a mortgage deed with power of sale, executed by said Samuel L). Pitcher and his wife, Margaret W. Pitcher, to Alexander J. Calhoun, to secure a debt due from Pitcher to said Calhoun, and also a deed to plaintiff by Calhoun, as mortgagee, foreclosing the mortgage under the power of sale, which appears to have been duly executed and acknowledged.

There was evidence given that the defendants, Samuel D. Pitcher and Margaret "W. Pitcher, are husband and wife, and the other defendants are children of Margaret "W. Pitcher, some born before, and a part of them after, the date of the deed from Lard.

l-This was all the evidence. The plaintiff then asked the court to declare the law as follows:

1st. “The court declares the law to be, that the conveyance from Samuel D. Pitcher and wife, being acknowledged before a defacto officer, was good and sufficient, although there may have been a defect in his commission.” .

2nd. “ The court declares the law to be, that the conveyance read in evidence shows title to plaintiff in said property in dispute.”

The court gave the first, and refused the last declaration. The ease having been submitted to the court sitting as a jury, it found the issues for, and gave judgment for, the defendants. A motion for a new trial was filed by plaintiff and overruled, and exceptions duly saved.

In giving the first declaration of law, the court was clearly right. Whether the notary was commissioned or not, could not be inquired into in a collateral proceeding. His official acts as notary were good, notwithstanding he might have usurped the office.

*336It is not perceived, upon what ground the second -declaration asked by the plaintiff was refused. The deed from Lard and wife, to Mrs. Margaret W. Pitcher and her children, was not void, either as to her or her children in esse at the time the deed was made. (Arthur vs. Weston, 22 Mo., 378.) She and her children, then in existence, were the grantees, and took as tenants in common ; “ id cerium est, quod cerium reddi potest.”

Mrs. Margaret W. Pitcher, being a tenant in common with her existing.children, had a share in the lot,.equal to one of the children. She and her husband had the power kr convey her interest by way of mortgage, and it did pass by virtue of the mortgage to Calhoun, and by the sale and conveyance by Calhoun to the plaintiff, Margaret W. Pitcher’s undivided interest passed to him.

The plaintiff, being invested with this undivided interest? ought to have been .permitted to recover the same. The defendants claim the entire interest, to the exclusion of plaintiff, lie is entitled to his undivided interest in the lot.

On this ground the judgment will be reversed and the cause remanded.

Judges Tories and Sherwood concur; Judges Nap ton and Wagner absent.