102 Mo. 77 | Mo. | 1890
— -This is an action of ejectment brought by Martha J. Hughes and her husband to recover eighty acres of land situate in the county of Caldwell. Thevt-nue of the cause was changed to Clinton county.
The deed then goes on to describe the land, and is signed and sealed by the administrator, and bears date March 21, 1846. The acknowledgment is in these words:
“State oe Missouri, 1
“ County of Caldwell,
“Be it remembered, that on this, the twenty-first day of March, A. D. 1846, personally appeared before me, Joseph C. Hoord, clerk of the county court within and for the county aforesaid, Wm. Jones, administrator of the estate of Edward Partridge, deceased, whose name appears in the foregoing instrument of writing as a party, as administrator aforesaid, and acknowledged the same to be his act and deed for the purposes therein named.
“ In witness whereof, I have set my hand and 'affixed the seal of said court, at office in Kingston, this the day and date last aforesaid.
“[Seal.] Joseph C. IIoord,
“By J. II.-Bryaw, Clerk.
“Deputy Clerk.”
The plaintiffs also offered in evidence a certified copy of a bond dated the twenty-fifth of February, 1841, signed by Jones as administrator of the estate of Edward Partridge, which contains recitals to the effect that the administrator had, pursuant to an order of the county court made on the eighth of December, 1840, sold the property specified in the deed to James Fugate for $52.50, one-half to be paid in six months, and the other .half in twelve months, and states that a deed shall be made when the purchase money is paid.
1. An objection made to the deed in support of its exclusion by the trial court is, that it is defective in its recitals in these respects : First, it does not recite the •order of sale so as to show whether the sale was to be public or private ; second, it does not show when the sale was made, nor whether it was made during the session of any court; third, it does not show that any report of the sale was made, nor that the report was approved; and, fourth, it fails to show that the property was advertised for sale.
It is perfectly clear that the sale was made Tinder an order .of the county court, entered at its December term, 1840, and that thé sale was made not later than the twenty-fifth of February, 1841. The proceedings were, therefore, had under, and are gpverned by, the Laws of
The statutes of 1835 do not, like the statutes of 1845 and subsequent statutes, make the deed of itself evidence of matters stated therein; but the act of 1835 requires the administrator to report the sale to the court, with the certificate of appraisement and a copy of the advertisement; and the report must be approved by the court. The approval, of which there is evidence in this case, is in effect a judgment that the sale has been conducted according to law and the order of the court; and it was not incumbent upon the plaintiff to produce any evidence additional to the deed and the order approving the sale. Price v. Springfield Real-Estate Ass'n, 101 Mo. 107.
2. A further objection is made to the administrator’s deed on the ground that the certificate of acknowledgment does not show that the grantor was personally known to the officer who made the certificate. The statute, which makes it the duty of the administrator to execute, acknowledge and deliver to the purchaser a deed, does not state what the certificate of acknowledgment shall set forth. It must, therefore, conform to the general law on that subject. By the statute of 1835 as well as that of 1845, it was provided that “the certificate of acknowledgment shall state the fact of acknowledgment, and that_the person making the same
The certificate of acknowledgment in this case not only states the fact of the acknowledgment, but when analyzed it will be seen the clerk taking and certifying it makes these additional statements: That William J ones personally appeared before him ; that the William Jones who thus personally appeared before him was the person who was administrator of the Partridge estate, and the same person whose name appeared in the deed as a party thereto as administrator. How could the officer make these statements, unless the William Jones making the acknowledgment was known to him to be the person whose name was subscribed to the deed as a party thereto ? It is not necessary that the certificate should follow the language of the statute. It is sufficient that there is a substantial compliance with the law. All the elements of a good acknowledgment are found in the one before us, and that is sufficient, though they are not expressed in the language of the statute. It follows from what has been said that the court erred in excluding the deed.
3. The original petition stated that Martha J. Hughes was entitled to the possession of the land. After the venue of the cause had been changed to the Clinton circuit court, the plaintiffs amended their petition by stating that she and her husband, her coplaintiff, were entitled to the possession. The defendants in the case, who are now the defendants in error, insist that the amendment made an entire change in the cause of action ; that the Clinton circuit court had no jurisdiction to try on change of venue any other case than that
We express no opinion on the merits of this case, for they are not before us on this record. The judgment is reversed and the cause remanded.
SEPARATE OPINION.
— In my opinion the acknowledgment which is questioned in this case is insufficient. The law which governs it is as follows :
“Sec. 11. No acknowledgment of any instrument in writing, that conveys any real estate, or whereby any real estate may be affected in law or equity, shall be taken, unless the person offering to make such acknowledgment shall be personally known to at least one judge of the court, or to the officer taking the same, to be the person whose name is subscribed to such instrument as a party thereto, or shall be proved to be such, by at least two credible witnesses.
“ Sec. 12. The certificate of such acknowledgment shall state the fact of acknowledgment, and that the person making the same was personally known to at least one judge of the court or to the officer granting the certificate, to be the person whose name is subscribed to the instrument as a party 'thereto, or was proved to be such, by at least two witnesses, whose names shall be inserted in the certificate.” R. S. 1835 [3 Ed.] pp. 120, 121.
While such instruments should receive a liberal ' interpretation, and their substance, rather than mere form, be regarded, it appears to me that our construction of them should not be so broad as to dispense with any of the requirements of a plain statute.
The law on this subject seems to me to demand more than appears in this certificate, touching the officer’s means of knowledge of the identity of the grantor to which he certifies. Callaway v. Fash (1872), 50 Mo. 420 ; Jackson v. Osborn (1829), 2 Wend. 555 ; 20 Am. Dec. 649 ; Coburn v. Herrington (1885), 114 Ill. 104.
In my judgment the trial court correctly sustained the objection made to the acknowledgment. ’