77 Mo. 537 | Mo. | 1883
This is an action of ejectment instituted in the circuit court of Putnam county, to recover possession of the west half of southeast quarter and the east half of southwest quarter of section 34, township 65, range 19.
Win. Adkins filed an answer denying all the allegations of the petition, except that of his possession of the land, and Kendall filed a separate answer, containing a general denial and a special defense consisting of the following facts: That Sarah and Yan Manchester, under whom both parties claim title, on the 6th day of May, 1867, executed a mortgage by which they conveyed the land to Kendall Adkins as security for $637.37, borrowed by said Yan Manchester of him, and that in August, 1873, he instituted a suit against them to foreclose the mortgage, and in September, 1874, obtained a judgment thereon against Yan Manchester for $1,111.88, under which the land was sold, and the defendant, Kendall Adkins, on the 22nd day of February, 1875, became the purchaser, and in March following received a deed from the sheriff, conveying to him the land; that plaintiffs claim title by purchase from the Manchesters subsequent to the execution of the mort
There was a judgment for defendants, from which this appeal is prosecuted.
It was admitted that the Manchesters owned the land prior to the conveyance to plaintiffs and' defendants; and plaintiffs read in evidence a deed to them from Manchester and wife, dated March 26th, 1877, conveying the land in controversy, and rested.
The defendant, over the plaintiffs’ objections, read a copy of his mortgage certified to be a correct copy of the record by the recorder of deeds of Putnam county. Plaintiffs’ objections were that it was not properly acknowledged and that it was only a copy. The acknowledgment was taken by a justice of the peace of Davis county, in the state of Iowa, who testified that he took the acknowledgment, and that the mortgage was executed by Manchester and wife.
3. a conveyance es1 THE WIFE’S land. Under our statute a husband and wife may convey the wife’s land by their joint deed, (§ 669, R. S. 1879,) but it must be acknowledged and the acknowledg- , . ° ., t • ment certified m the manner prescribed m section 676, which relates to the officers authorized to take the acknowledgment, and section 680, which prescribes how it shall be taken, and section 681, which declares what the certificate shall contain. The deed was not acknowledged before an officer authorized to take it, and the certificate does not contain what the statute requires. A married woman’s title does not pass by the execution and delivery of the deed, but the acknowledgment is as essential as her signature and the delivery of the deed to give it effect. As the acknowledgment was defective the wife’s title'did not pass, nor did it convey the legal title to the husband’s marital interest. 2 Wag. Stat., 938, § 14; Bartlett v. O’Donoghue, 72 Mo. 563 ; Goff v. Roberts, 72 Mo. 570.
But defendants introduced in evidence the record and proceeding in the suit instituted by Kendall Adkins against Manchester and wife, in the circuit court of Putnam county, to foreclose the mortgage. The Manchesters were not residents of this State.' They were notified by publication in pursuance of tbe statute, and, failing to appear, judgment was rendered against them by default, and the only alleged invalidity of the proceedings in that cause, is that the judgment rendered was against both Manchester and wife, and the appellants contend that this was such an error as rendered the judgment void as to both husband and wife. No doubt the authorities cited fully sustain the legal proposition. Higgins v. Peltzer, 49 Mo. 152 ; Wernecke v. Wood, 58 Mo. 352; Fithian v. Monks, 43 Mo. 502; Smith v. Rollins, 25 Mo. 408; Pomeroy v. Betts, 31 Mo. 419.