Owen v. Baker

101 Mo. 407 | Mo. | 1890

Barclay, J.

The admissibility in evidence of the sheriff’s deed, set forth in the statement accompanying this opinion, is denied on several grounds, which will be considered in their order.

I. It is claimed that it recites a judgment against three defendants and a direction to levy against one only.

As the levy was actually made on the land of James Sullivan, the one defendant named, and his land sold accordingly, the error or irregularity, if any there is, in the recital in this particular, is not such as to vitiate the sale in a collateral proceeding. Blake v. Blanchard, 48 Me. 297; Morse v. Dewey, 3 N. H. 535.

II. Next it is asserted that the deed affirmatively limits the title conveyed to such interest as James Sullivan had therein, November 21, 1842, while it is admitted that he had conveyed away his interest in the land levied upon to Mr. Page, October 21, 1842.

But the judgment (on which the sale was predicated ) was of date in March, 1842, and the law then in force provided that the lien of judgment should begin when the latter was rendered (R. S. 1835 [3 Ed.] 1840, p. 339, sec. 3), and that upon execution might be sold the “real estate whereof the defendant, or any person for his use, was seized in law or equity on the day of the rendition of the judgment, order or decree, whereon execution issued, or at any time thereafter.” R. S. 1835 [2 Ed.] 1840, p. 256, sec. 17.

The sheriff’s deed recites a levy on James Sullivan’s lands, and purports to convey them, but then adds in substance that the interest conveyed dates from November 21, 1842, only. It was not within the power of the sheriff making the sale to limit the meaning of his general transfer of defendant’s title by such an addendum. The law gave an effect to the general terms used in the conveyance by passing such estate as the execution debtor had at the time of the judgment, and the further language used did not destroy that effect.

Even in respect to the recitals which the law directs to be made (R. S. 1835 [2 Ed.] p. 259, sec. 45) it is not every error or mistake that will vitiate such a conveyance collaterally (Buchanan v. Tracy, 45 Mo. 437); but only such as affect the power to sell and regularity of the sale. Buchanan v. Tracy, 45 Mo. 437.

III. Another objection to the deed in question relates to the sufficiency of its acknowledgment. The statute required it to be made before the circuit court of the county wherein the estate was situated, and that the clerk of said court should indorse upon such deed a certificate, etc., “under the seal of the court.” It is claimed that the acknowledgment does not comply with the law in these particulars.

Under the statutes then in force, the clerk of the circuit court was also recorder of deeds. R. S. 1835 [3 Ed.] p. 525, sec. 2.

Of this fact our courts will take judicial notice, as part of the history of legislation in this state. Jackson, who signed the certificate, was recorder only by virtue of his office as circuit clerk. His description of himself, therefore, as recorder indicated likewise that he was circuit clerk, and, with the recitals in the acknowledgments, make it clear that it was taken by him as clerk. As circuit clerk, he was authorized to take the acknowledgment, but, as recorder, he had no such authority. R. S. 1835 [2 Ed.] p. 120, sec. 8.

The presumption always is, in the absence of any showing to the contrary, that public officers perform their duties rightly. In this case the acts of the sheriff and court, described in'the certificate of Jackson, were valid if performed before him as circuit clerk, but not as recorder.

Had the word “recorder” (after his signature) been omitted, the matter would be too clear for discussion. We regard it in the present instance as a mere description of the official person whom the law also designated as circuit clerk, as well as recorder.

In support of a certificate of acknowledgment, reference may be properly made to the language of the conveyance itself. Carpenter v. Dexter, 8 Wall. 515; Chandler v. Spear, 22 Vt. 388; Bradford v. Dawson, 2 Ala. 203; Sharpe v. Orme, 61 Ala. 263; Wells v. Atkinson, 24 Minn. 161. By giving proper force to it, and to the presumptions attaching to the acts of public officers, we have no doubt of the validity of the acknowledgment in the particular referred to.

That the deed and certificate sufficiently show that the acknowledgment was made before the circuit court of Pan Burén county is settled by the ruling in Sidwell v. Birney, 69 Mo. 144.

In fine, we regard the objections assigned to the admission of the deed untenable. They, should be overruled. Hence we all agree that the judgment be reversed, and the cause remanded for further proceedings.