58 Mo. 468 | Mo. | 1874
delivered the opinion of the court.
The plaintiffs, Harrington and Cover, brought the present action to recover possession of the south east quarter of section 22, township 62, of range 17, and the south west quarter of section 23, of the same township and range. Both parties claim title through the same common source, John Oliver, who entered the land, conveyed it to Glassburner, who, in 1859, not having paid the purchase money, re-conveyed the land to Oliver; but the deed to the latter, although duly recorded, was defectively acknowledged, by reason of the acknowledgment having been taken before a justice of the peace in Iowa.
The defendants pleaded the general issue, also that the transcript was filed in, and the execution issued out of, the office of the clerk of the Circuit Court, without authority of law; that the judgment against Oliver was rendered without notice ; and further, as an equitable defense, they set forth, that Oliver, on the 31st of July, 1867, in order to secure the payment to Johnson of a note for $200, executed to him a mortgage on the premises in controversy,1 with power of sale in case of default made in the payment of the sum thus secured; that this mortgage was duly acknowledged and recorded, and was perfect in all its parts, except that it failed to have a scrawl attached by way of a seal; that Oliver failed to pay the note at maturity, and Johnson, exercising the powers vested in him by the instrument, sold the premises to defendant Fortner, who thereupon, in good faith, took possession of the premises, made valuable and lasting improvements, paid the tax thereon, and was in possession at the time of plaintiff’s alleged purchase.
The chief averments of the answer were denied in the rep]y-
At the trial it appeared in evidence, that the original papers in the cause of Workman vs. Oliver were lost; parol evidence was therefore admissible to show that the summons had been duly served by the deputy constable, Jones, in the name of his principal, Lester. And the memorandum on the docket of the justice, that the summons was served on Oliver by the deputy, Jones, does not by any means contradict the parol evidence that such process was served in the name of
The objections made to the deed of the sheriff to plaintiffs are therefore regarded as untenable. Proceedings before justices of the peace should never be viewed with technical or hypercritical nicety, and this is especially the ease when such proceedings are made the bases of titles arising from judicial sales. The objections to the deed from Glassburner to Oliver, and the method adopted by plaintiffs to establish its authenticity, are also without merit. Both parties claimed under Oliver, and the instrument of writing executed between Johnson and Eortner explicitly' recognizes his right, or that of those claiming under him, to redeem the land mortgaged.
The deed from Glassburner to Oliver, although the acknowledgment was worthless, was good as a common law deed, and was, having been duly delivered, as valid and operative to all intents and purposes between the parties there-, to, and those having “ actual notice thereof,” as though acknowledged with every statutory formality. (Wagn. Stat., 277, § 26; Caldwell vs. Head, 17 Mo., 561.)
This point was thus expressly ruled in the case of McClurg vs. Phillips, (57 Mo., 214). Default having been made in the payment of the mortgage debt; this fact would constitute when pleaded, as it was in defendant’s answer, an equitable defense to the plaintiff’s action on the part of the mortgagee, or any one else in possession of the mortgaged premises, claiming under him. This was so held in the case of Hubble vs. Vaughn, (42 Mo., 138). And though the mortgage was in that case sealed, the two cases are not distinguishable in point of principle.
It is unnecessary to determine the precise force and effect of the contract between Johnson and Fortner. It is sufficient to say, that it had at least the effect to transfer to the latter whatever of possessory right the former had to the mortgaged premises, and being in possession of those premi
For these reasons the judgment is reversed and the cause remanded.