75 Mo. 613 | Mo. | 1882
Lead Opinion
The original petition in this cause does not appear in the transcript, but it is admitted that the suit was commenced to the March term, 1874, of the Clay circuit court, and on the 20th day of December, 1877, an amended petition was filed, on which, with the answers thereto and the reply, the cause was tried at the February term, 1878. By the amended petition it was charged that Jamos T. Y. Thompson was in 1864 seized of the land in controversy. It contained about 200 acres and may be called he Thompson Home Place. Under a judgment obtained 2nd of May, 1862, which was alleged to have been revived from time to time, the plaintiff' received, in September, 1870, a sheriff’s deed duly executed and acknowledged, conveying to him all the interest of said Thompson to this land. The petition went on to state that in 1864, Thompson, being in embarrassed circumstances, and many unsatisfied judgments standing against
James P Thompson had died The suit was instituted against Emily “W. Thompson, John D. and Anna R. Thompson and their trustee A. J. Calhoun. The trustee and the minor children filed a general denial.
Emily W. Thompson answered separately and specially. She denied all the fraud charged in connection with the deed to Tillman, and.alleged that the purchase by him was effected with money to her belonging, arising from her separate estate. Further, she set up a purchase from, the Farmers’ Bank of Missouri and Jno. ~W. Reid of this property in 1867. She said that they had purchased it at sheriff’s sale from Thompson in April 1865, and had received therefor a sheriff’s deed duly executed and acknowledged. This deed was alleged to be lost, and a copy was filed as an exhibit. It was alleged further that in 1862 Thompson, being largely indebted, had executed a deed of trust or mortgage to A. W. Doniphan and A. J Calhoun
To this answer plaintiff t replied on 28th of February, 1878, having on the 23rd moved to strike from it, as'inconsistent and antagonistic with the defense of the Tillman transaction, all that was said respecting the acquisition of the title of the Farmers’ Bank of Missouri and Jno. TV. Reid. He denied the making of a deed by the sheriff to these grantors; denied the existence of- the judgment, the making of the sale alleged to have occurred in April, 1865, the execution and acknowledgment of the sheriff’s deed.
It is stated in the transcript that the case was called for trial on the 2nd of March, 1878. This seems to be a
. The plaintiff put in evidence the sheriff’s deed to him. There was some discussion as to the revival of the judgment under which this deed was made, so as to preserve the lien of it from the day when it was rendered. The circuit court held that an unbroken lien had not been preserved. No error is seen in this ruling; but it does not affect the conclusions reached by this court.
The plaintiff' then put in evidence the deed to Tillman and his conveyance to Calhoun. He supplemented these with other testimony, which leaves no doubt as to the character of that transaction. The money bid by Tillman was paid by Thompson. Mrs. Thompson had no separate estate, and the conveyances by which she claimed the home place under Tillman and Calhoun were void as against the creditors of J. T. V. Thompson. ' It was proved that the plaintiff was not a party to what may be called the “dower contract.” He knew nothing of its tenor, and nothing to impart notice of its existence. At the sale under the foreclosure it was announced that Mrs. Thompson would release her dower to all the land sold under the decree of foreclosure.
The defendant offered in evidence what was called a sheriff’s deed, purporting to have been made pursuant to a sale of all Jas. T. V. Thompson’s interest in the home place on the 26th of April, 1865. There was-a subsisting and unsatisfied judgment against Thompson, on which an execution was issued June 2nd, 1864, and placed in the hands of Francis R. Long, sheriff of Clay county, on June 5th, 1864. He levied this writ on the home place. Apparently Long was succeeded in office by Darius Gittings, but when the one ceased to be, and the other became, sheriff, does not appear. Gittings seems to have made sale of the home place under this writ, in April, 1865, under the levy previously made in 1864 by Long. He executed a deed reciting the judgment, execution, advertisement and sale
This paper can with no propriety be called a sheriff’s deed; for until such an instrument has been executed, acknowledged and certified as the law directs, it has no validity. The plaintiff objected to it for these reasons, and the circuit court sustained the objection. The defendant, then asked to be allowed to have this assumed copy acknowledged nunc pro tunc by Darius Gittings, late sheriff of Olay county, present in court, and this the court permitted, and allowed the instrument thus acknowledged to be read, against the exception of the plaintiff.
Up to this time the only certificate on the paper was in the following terms:
STATE OE MISSOURI, 1 County or Olay. j
Among the records and proceedings of the circuit ■court begun and held at the court house' in the city of Liberty, in the county of Olay, on the 26th of April, 1865, and on the third day of said term the following were had, to-wit: “Be it remembered, that on this 26th day of April, 1865, comes Ei’ancis R. Long, sheriff of Clay county, in the State of Missouri, and produces a deed executed by himself as sheriff as aforesaid to the Earmers’ Bank of
Then follows a certificate by the clerk under the seal of court declaring the foregoing to be a full, true and perfect copy of the acknowledgment by the sheriff in open court; below which appears the words: “Piled 27th of April, 1865,” without more. On the 9th of January, 1878^ the recorder of deeds for Olay county certified this paper to be truly copied from his records. The acknowledgment of this paper, which the circuit court at the trial permitted Darius Gittings to make, bears date March 1st, 1878, and recites that Darius Gittings, late sheriff, etc., produces a deed (not a copy of a deed) executed by him, etc., etc., and acknowledges it accordingly. On the same 1st of March, 1878, Darius Gittings appears to have acknowledged this same paper to be his act and deed. On this last occasion he acted as an individual, not as sheriff. The paper thus acknowledged was then read in evidence against the exception of the plaintiff, and, this being all the evidence, the circuit court dismissed plaintiif’s bill. After the usual motions he appealed to this court.
But the additional duty is laid on the clerk to “ make an entry,” (upon the records of the court) “of such acknowledgment * * with the names of the parties to the suit, and a description of the property thereby conveyed,” etc., etc. The words italicized are no part of the acknowledgment ; they are something supplemental to it, which the clerk is directed to enter of record. They should not be indorsed upon the deed. The certificate of acknowledgment indorsed upon- that instrument, is the original, authentic, evidence of the act of the sheriff*. This certificate cannot be aided, if defective in any particular, by reference to the entry upon the record, (Samuels v. Shelton, 48 Mo. 444; Adams v. Buchanan, 49 Mo. 64; McClure v. McClurg, 53 Mo. 173 ;) nor will it be invalidated because that entry is defective. Scruggs v. Scruggs, 41 Mo. 242. Instead of this order being observed in the deeds before us, it would seem that the entry upon the record was first made, and that then an order followed that this, entry should be certified, or indorsed, on the deed. This is a cumbrous, unnecessary and dangerous departure from the directions of the statute. The certificate of acknowledgment indorsed on the deed, and the entry on the record, were not intended by the law-makers to be copies of each other. The certificate of acknowledgment itself may be and should be very brief. It need not, and should not, contain a description of the property conveyed. That is
Our opinion as to the deed to Tillman and his conveyance to Calhoun, has been already intimated. In substance, Thompson himself, as far as his creditors are concerned, was the purchaser on this occasion.
The deed to Emily W. Thompson from the Farmers’ Bank and Jno. W. Reid, is a very carefully guarded deed of quit-claim, conveying industriously only such title as the grantors had. They do not even cite the deed by which they derived title to the land; but describe the property as being the same which was sold to Tillman. On looking at the paper constituting their title, we see that it is neither the deed of Sheriff Gittings nor of Sheriff Long. The one did not acknowledge, the other did not execute it. It is among the unexplained puzzles of this case how it came to pass that this paper was admitted to record at all. Certainly no law with which we are familiar entitled it to be recorded, or made either the paper itself, or a copy of it,'evidence. What especially, excites our curiosity is the evidence by which it was made to appear that this paper was an authentic copy of anything. Gittings appears to have regarded it as an original document; w7hich it confessedly was not. It was, however, received as a copy of a paper executed by Gittings and acknowledged by Long in 1865, the original'being alleged to be lost, and this copy
We are, therefore, of opinion that the deed made in April, 1865, (assuming it to be settled that such a deed was then made,) could not be perfected by acknowledgment in 1878 so as to cut out the plaintiff.
He certainly occupies a more advantageous position than was held by Merry in the case of Alexander and Betts v. Merry, 9 Mo. 514. That case was decided in 1845. It has recently been quoted with approval, and must be regarded as settled law. Strain v. Murphy, 49 Mo. 337. Although in every conveyance by which Merry claimed, the fact of a' sale, the defective certificate of which alone gave him- any standing, was recited, he was held unaffected by such recital. This decision might be much narrowed without weakening the case of the plaintiff' in this suit. It is too familiar to need the citation of authority in its support^ that the doctrine of relation is never applied to the injury of an innocent, still less of a meritorious stranger.
There are cases in which a trivial discrepancy in the name of theperson executing, and the person acknowledging a deed, has been reconciled by proof of the identity of the two. If a grantor’s name be correctly recited in the body of the deed, and he signs it in his true name but acknowledges it by a wrong name; or when an erroneous name is signed but the right one used in the acknowledgment; the error is cured. Such was the case of Middleton v. Findla, 25 Cal. 80. There, however, the mistake was very trivial. The deed was executed by Edward Jones. It appears to be acknowledged by JEdmond Jones. There was no question but that Edmond and Edward were the same
It is certainly true that a person may become bound by any mark or designation he may think proper to adopt. Butchers & Drovers' Bank v. Brown, 6 Hill 443. But we have no sort of evidence that any one intended, in the certificate before us, to use one name for another.
As to the dower agreement, it became irrelevant when it was shown that plaintiff was not a party to it. Doniphan and Calhoun and any number of the creditors of James T. Y. Thompson, on the one hand, and Emily W. Thompson, on the other, had no power to conclude the rights of any other creditors.
No question appears to arise on this agreement. The home place was not sold under the decree of foreclosure. If indeed the Farmers’ Bank of Missouri and John W. Reid were the owners of the home.place, their vendee would hold it against the world, but not by reason of the dower agreement.
Our opinion, therefore, is, that the plaintiff is entitled to the relief he asks, and we reverse the judgment and remand the cause, with instructions to the circuit court to make a decree in conformity with the views here expressed.
Hon. Thos, T. Gantt, late Presiding Judge of the St. Louis Court of Appeals.
Dissenting Opinion
Dissenting. — I cannot subscribe to the foregoing opinion. I regard it as being utterly at variance with many decisions both of this and other courts bearing directly on the questions at issue; besides, as being the result of an entire misconception of the facts spread at large upon this record, and the necessary and legitimate inferences arising from such facts. I will briefly give the reasons why I think so :
I.
And first,, as to the validity of the sheriff’s deed to the Farmers’ Bank and Jno. W. Reid; so far as the deed itself is concerned, no objection can be taken to it. The point, and the sole point of objection urged in the circuit court, was that the certificate of acknowledgment does not support and is not in conformity with the deed, because of the fact that the deed was made and signed by Darius Gittings as sheriff, but acknowledged by Francis 11. Long, as sheriff. Let this objection be examined, and see what force it possesses.
The deed begins : “ To all to whom these presents shall come, I, Darius Gittings, sheriff of the county of Clay, State of Missouri, send greeting.” The deed then, after reciting the judgment rendered, the issuance of execution and its direction to the sheriff of Clay county, and its delivery to “ Francis R. Long, then sheriff of said county,’’ states that said execution “ was by said Long transferred and handed over to me, as his successor in the said sheriffalty, upon the expiration of his term of office.” The deed then recites that a levy of the execution had been made by Long on the property in controversy, among other, and that after such levy, Long had turned over the execution to Gittings as his successor. The deed also recites that “ I, Darius Gittings, sheriff as aforesaid, gave notice of the time
Now, nothing is better established law than that á court is bound to take judicial notice of its own officers; they will judicially notice their signatures, whether any official designation is added to their signatures or not, and will know also, when their terms expire. Bliss Code Plead., § 199, and cases cited. Taking this legal presumption as a premise, it must be apparent that Darius Gittings, who signed and sealed the deed, acknowledged it; for otherwise in the very teeth of that legal presumption, of that legal knowledge, we must originate a presumption or inference of fact that the circuit court of Clay county did not know that Long’s term had expired or that Gittings’ term had begun, did not know whether Long was its own officer when he came to acknowledge a deed signed and sealed by Gittings ; in short, did pot know whether Long was Gittings or the latter was Long. If, as the books state, the court knew its own sheriff, knew his signature, is it not a matter of wonder, if plaintiff’s position be correct, that the court did not promptly rebuke Long when he came before the court to acknowledge a deed signed by Gittings, in which Long is referred to as the former and Gittings as the present sheriff? This question answers itself, and shows the supreme necessity of using, in investigations of this character, cot only some knowledge of the law of evidence, but also common sense; and until you can overthrow the legal presumption that the court knew its own sheriff, you are bound to conclude that the insertion of Long’s name in the. certificate instead of that of Gittings was a mere mispi’ision of the clerk; a mere error in the name, and not in the man; and so the misnomer should work no hurt.
The maxim, “praesentia corporis tollit errorem nominis”
Take another view of the certificate of acknowledgment : The body of the deed may be referred to, to support the certificate. Martindale Conveyances, § 259. In Samuels v. Shelton, 48 Mo. 444, the certificate of the clerk indorsed on the deed was the following: “Andrew Beaty} sheriff of said county, appeared in open court and acknowledged that he executed and delivered a deed to David Mulanix, as his voluntary act and deed, for the uses and purposes therein expressed.” And Wagner, J., after stating that “the deed itself must contain the necessary certificate; and a defective certificate of acknowledgment cannot be sustained or helped by a resort to extraneous testimony,” proceeds to say: “ The only objection that can be plausibly urged against this certificate is that it does not specifically refer to the conveyance, but uses the phrase '•a deed.’ This is without doubt a mere clerical error. The deed sets out the execution, the transcript and sale, and the purchase by Mulanix; and the certificate of acknowledgment is placed on this deed by the clerk. It obviously refers to this deed and no other, and the mere inadvertence or clerical error of the officer making the indorsement ought not to be permitted to’ invalidate it. • *, * The intention is sufficiently clear on the face of the paper.” That case undoubtedly shows two things : 1st, That the deed is
So also in Carpenter v. Dexter, 8 Wall. 515, it was held that in aid of the certificate of acknowledgment, reference may be had to the deed or any part thereof. So also in Chandler v. Spear, 22 Vt. 388, where the grantor's name was Richard G. Bailey, but the certificate of acknowledgment showed an acknowledgment in the name of “ Richard G.,” and it was ruled that as it appeared from an inspection of the whole instrument with reasonable certainty that it was acknowledged by Richard G. Bailey, the grantor, that this was sufficient. Similar rulings were made in Bradford v. Dawson, 2 Ala. 203, and Sharpe v. Orme, 61 Ala. 263. The court there say that “the only general rule with respect to the construction of these certificates, when the object is to support the registration, is that where the statute has been substantially complied with, the rights of the parties shall not depend on strict criticism, but that any portion of the deed may be examined to give effect and meaning to a certificate which is apparently defective.” And the court further says: “ The material fact is, that the grantors acknowledged the execution of the conveyance, and whenever this can he fairly and reasonably spelled out from the certificate, the requisitions of the law are satisfied. . When this certificate is read in connection with the deed, the fact appears with certainty.” To the same effect is Wells v. Atkinson, 24 Minn. 161, where the court say in reference to certificates of acknowledgment: “ It is the policy of the law to uphold them, whenever substance is-found, and not suffer them to be defeated by technical or unsubstantial objections. In construing them resort may be had to the deed or instrument to which they are appended.” Authorities announcing the same rule could be
The Supreme Court of the United States, when speaking of such certificates, say : “ Instruments like this should be- construed, if it can be reasonably done, ut res magis valeat quam pereat. It should be the aim of courts in cases like this to preserte and not to destroy. Sir Matthew Hale said they should be astute to find means to make acts effectual, according to the honest intent of the parties. Roe v. Tranmar, Willes 682.” Kelly v. Calhoun, 95 U. S. 710.
Applying to the case at bar the rule announced in Samuels’ case, supra, and in the other cases cited, I read the certificate of acknowledgment. Apparently it was acknowledged by Erancis B. Long, as sheriff of Clay county, but resorting, as I lawfully may, to the deed upon which that certificate is indorsed I find that Long, having previously levied the execution on the property in controversy, had gone out of office and turned- over the Ji. fa. to Gittings as his successor, that the latter had made the advertisement and the sale and signed and sealed the deed as the sheriff of Clay county. Erom this state of facts patent upon the face of the deed, to what other rational conclusion can I come but that Gittings, and not Long, sheriff of Clay county, was the actual grantor who acknowledged the deed ? Whenever you are permitted to resort to the deed in aid of the certificate, all ambiguity vanishes and repugnancy ceases. This is so and you cannot deny it.
Take another view of the certificate and deed : Both bear the same date, April 26th, 1865; both have the same design ; their mutual dependence and connection appear-on comparing or reading them together, and, therefore, in 'the eye of the law they may be regarded as one instrument,
The sole ground of objection, as before stated, made by plaintiff to the deed and the certificate of April,-1865, when first offered, was that heretofore mentioned, and no objection was then made that it was a copy. So that the case then stood as if the deed had been the original one. If either of the above positions I have taken be correct, the deed was properly admitted to record, and if so, imparted constructive notice to all subsequent purchasers. Besides, plaintiff admitted both in his answer and on the trial.that the copy offered was a certified copy, and according to the statute, (§ 2302,) was evidence, since the original was proven to have been lost. Why then speak of this copy as an “ assumed copy ? ”
II.
But granting that the deed was improperly admitted to record, and, therefore, imparted no constructive notice, still the only party who could take advantage thereof, would be what the books call an “ innocent purchaser.”
Much intellectual ammunition has, as I think, been wasted in the majority opinion about the deed being only a copy. The original being lost, a copy thereof containing the proper recitals, was to all intents and purposes a new deed, and the sheriff, by acknowledging the deed, and recognizing as his signature the name signed to the copy made that signature his own. This point certainly will not be disputed.
III.
The next thing for consideration is, whether plaintiff was an innocent purchaser. I will consider this matter from two points of view. 1st, As a question of pleading; 2nd, As a question of evidence.
And first, as to the question of pleading: In Halsa v. Halsa, 8 Mo. 303, Hart, a defendant, had pleaded in his answer that he was an “ innocent purchaser, without notice of any conflicting claims.” Scott, J., in speaking of the insufficiency of this answer, approvingly cites Frost v. Beckham, 1 Johns. Chy. 288, where Chancellor Kent says: “ If a purchaser wishes to rest his claim on the fact of being an innocent bona fide purchaser, he must deny notice though it be not charged; he must deny, fully and in the most precise terms, every circumstance from which notice could be inferred.” And the party who in apt terms pleads that he is such a purchaser must prove it; the onus is on him. Jewett v. Palmer, 7 John. Ch. 65. In Story’s Equity Pleading, section 805, it is stated that a party ■ cannot set up a bona fide purchase for value at the hearing, unless pleaded formally, or set up by way of answer as any other defense, and in denying notice as the foundation of. a superior equity, the plea or'answer must not only negative such notice in general terms, but in specific terms as to all circumstances upon which it is claimed in the bill; and the plea must deny notice of plaintiff* s title and claim
2nd. Conceding, however, plaintiff’s reply to be unexceptionable, his evidence, would not support it. The onus being as before stated, he has fallen as far. short in his evidence, in this- regard as he did in his pleading. Granting that plaintiff himself was without notice of Mrs. Thompson’s rights, a debatable question, as will be presently seen, I cannot help regarding Jas. E. Lincoln as the attorney of his brother, when the sale under the foreclosure occurred. The plaintiff does not deny that his brother was his attorney, and on his shoulders rests the burden of proving lack of notice. He did not deny that he knew his brother was prosecuting his claim; and if he did not •disaffirm the acts of his attorney, he ratified them, and that ratification related to the time of the act done. And Jas. E. Lincoln does not .make it appear that he was not his brother’s attorney. He says: “I can’t say I was a
And there is abundant evidence in this record showing notice to Jas. E. Lincoln. He was present at the foreclosure sale; he heard the announcement made by the sheriff, by Gen. Doniphan, and by Judge Norton, of the agreement entered into between the mortgage creditors and Mrs. Thompson for her relinquishment of dower. Whether he knew of “ any written dower agreement, or what that agreement was,” does not signify. He heard the announcement made in the most solemn manner at the sale. He purchased at the sale, took a deed and received in that the relinquishment of Mrs. Thompson’s dower. After all this it is futile for him to say, he was unapprised of Mrs. Thompson’s rights. He either had knowledge or notice of those rights, or else abundant provocation and reason to institute inquiry respecting such rights, and this is sufficient. Surrounded by such circumstances he was grossly negligent if he failed to use the clue thus furnished him; and gross negligence is tantamount to knowledge. Leavitt v.
IY.
The foregoing are only a few of the reasons which might be urged to sustain the action of the court below-A more righteous judgment, one more sound on its basis of facts, and more sound on its basis of law, in my humble opinion, was never rendered’ in any court of justice.
The case of Mrs. Thompson is one of peculiar hardship, and speaks, (or rather should■ speak,) to the ear of a court of equity with a most persuasive tongue. “ In order (as she says in her answer) that she might save a home for herself and children and receive something to support them on,” she is induced to sign the dower agreement, whereby property which would not have brought more than $50,000, at the utmost, yielded $73,000. But for this agreement the foreclosure sale would have swallowed up the whole property, and we should not have heard of plaintiff’s “ most meritorious title.’*
If these facts do not give Mrs. Thompson a superior equity to plaintiff’s, then the sooner we erase that meaningless word of six letters from our vocabularies the better. "What! Shall a court of equity, which favors dower; which clings to substance and discards form; which shelters under its protecting shield its wards, the widow and the orphan; which does battle for the weak .against the mighty — shall such a court, I say, seize with apparent avidity on the “ shadow of a shade ” of an empty technicality, discountenanced and held for naught by all courts of law, and thus deprive a poor widow of her home, and her dower’s worth ¶ I regret to say that in this instance the above interrogatory is answered in the affirmative.
Over in Illinois, however, where, in an equitable proceeding for dower, it appeared that the sheriff’s deed, reg
Moreover, Mrs. Thompson clearly has a dower right in the premises in controversy, if the dower agreement as to those premises is to go for nothing, as this court declares. But this right seems not to have arrested attention in the majority opinion; but an iron-bound decree is to be entered by the circuit court, and no account is to be taken of that dower right, so far as appears in the mandate of this court.
I leave off, by saying, that after a careful consideration of this whole case, I am for affirming the judgment of the circuit court.