257 Mo. 135 | Mo. | 1914
Lead Opinion
OPINION
(After stating the facts as above).— ‘This case, having been submitted on an agreed state
At the time of this acknowledgment of' the-grantors, the officer who took it, M. J. Payne, was-mayor of Kansas City and under its charter was empowered to take acknowledgment of deeds and to certify the same under the seal of the city. [Laws 1853, p. 244; Laws 1851, p-. 90, sec. 6, art. 3l] By giving-its mayor the same power as the mayor of St. Joseph,, the charter of Kansas City also made him ex officioa justice of the peace. Hence, at the date of this acknowledgment, he was entitled under the charter and the existing statutes to take it in that capacity. [R. S.. 1855, p. 358, secs. 17 and 18.]
At the date of the deed in question the common law power of a married woman to convey her lands by the judicial process of fine and recovery, had been substituted by statute in this and other states giving a married woman the power to make such conveyances by a joint deed with her husband. The process of conveying her lands by joint deed with her
When the statute was enacted which was in existence when the deed under review was made, it was the purpose of the lawmakers, as disclosed in the terms of the act, to enable the married woman to sell her land by joining her husband in a conveyance, after acknowledging the execution of the deed in the manner prescribed by statute. The special acknowledgment then required has been now dispensed with. It was the purpose of the statute then, as at present, to make the joint deed of a married woman and her husband, when duly acknowledged by her and' delivered to the grantee, a complete transfer of the title to her land between the immediate parties or such as have notice
In the case at bar the deed was acknowledged both by the husband and wife in the manner provided by the statute and before a competent officer, and was signed and delivered by them to the grantees and the purchase money was received and the possession turned over to the grantees. The contract of sale was therefore completely executed by the parties making it, each of whom had complied with every statutory condition to validate the contract imposed on them. And it necessarily carried the title as between them, unless that was defeated by the failure of a third party to perform a ministerial duty. This person, the mayor of Kansas City, before - whom each of the grantees had made a correct and formal acknowledgment of the respective execution of the deed, did certify that fact in proper language and attested it by his official signature followed by his private seal, stating that no official seal had been provided. Hence it is palpably plain that the only irregularity pertaining to this cer
We cannot assent to this view. It is at war with the settled law relating to certificates of acknowledgment of deeds and other instruments. These are nothing more than recitals by the person before whom the acknowledgment is made, that the grantors in the deed have or have not acknowledged it in the form prescribed by law. The only object of the certificate is to furnish prima-facie evidence of the facts constituting the acknowledgment; for it is not conclusive evidence and may be impeached or supported by testimony. [R. S. 1855', chap. 32, sec. 47.] It is not auxiliary to the transfer of the title, for it is the act of a person who is a stranger to the title. It is simply a statutory method of affording presumptive evidence of antecedent facts. It is a mere evidentiary narration which when properly made is taken to be prima-facie true, but if imperfectly made it may be afterwards amended by the certifiers so as to speak the truth. This for the reason that it is the prior facts and not the subsequent recital of them, which constitutes the contract or deed. The instrument between the immediate parties is just as efficacious with as without it. The only difference being that if it is placed upon the deed in accordance with the actual facts of acknowledgment made and done as required by statute, and the instrument is recorded, then it becomes good, not only between the immediate parties, but against subsequent purchasers. This is the sole utility of the certificate when the facts of due acknowledgment actually exist prior to its endorsements thereof on the
So in the case at bar, after the husband and wife signed and acknowledged the deed under review in exact compliance with the statute, both as to signatures and as to the special acknowledgments required of the wife, before a proper officer and delivered it in exchange for the price of the land (all of which the agreed statement shows was done), neither the husband nor wife could maintain any action for the divestiture of that title or to recover the price a second time (as is now attempted to be done by their heirs), unless they could adduce evidence tending to prove that there was some want of compliance with the statute on the part of the wife in the matter of the acknowledgment on a separate examination of the execution by her of the deed in question. The possibility of such evidence is excluded by the clear, positive and unequivocal terms of the last paragraph of subdivision six of the agreed statement of facts where it is stipulated said “deed was acknowledged in proper form before M. J. Payne, mayor of the City of Kansas, now Kansas City, Missouri.” If that statement is true, as it must be taken, then Mrs. Augustine Rivard not only signed a deed conveying her land, but at the time of so doing, made an acknowledgment in complete - compliance with the statute then in existence before a proper officer who has been shown to have been authorized under the charter of Kansas City to take her .acknowledgment and who did take it and properly record the fact but did not attest his record with a seal provided by the city.
If any rights of innocent purchasers were involved, a wholly different question would be presented, but in this case the plaintiffs are the heirs of Augustine Rivard. They stand precisely in her shoes and have no rights of action which she could not have asserted
Nor do the cases cited for the plaintiffs sustain their contention. The case of Geary v. Kansas City, 61 Mo. 378, is a ruling upon a certificate of acknowledgment made by the same officer as mayor of Kansas City to which he appended his official name under a seal which he states was his private seal, “there being no official seal of office provided.” It does not appear from the opinion who was grantor in the deed, nor is there any statement in the opinion which indicates for what purpose the deed was used on the trial below, except the possible inference that it was offered in evidence as proof of the execution of the deed, and objected to on the ground of the absence of the seal to the certificate of M. J. Payne, mayor of Kansas
Respondents cite Huff v. Price, 50 Mo. 228, and Shaffer v. Kugler, 107 Mo. l. c. 63; neither of these cases are the least in point. The former was a contract for future conveyance made by the wife alone. The possession was turned over to the grantee who made some payment and put up some improvements. The husband and wife brought ejectment. This court, held the executory agreement of the wife, she having no separate estate, was unenforceable under the statutes then existing. But notwithstanding that fact,
The second case was a post-nuptial agreement of the wife for the conveyance of her general estate to her husband. The court held this was not enforceable against her or her heirs, there being no statute at that time which permitted such contracts between husband and wife. This ruling is clearly aside from the matter at hand.
In the case of Robinson v. Dryden, 118 Mo. 534, the plaintiff brought ejectment and claimed title through a married woman’s deed which was offered in evidence and was excluded,because the certificate did not show she was privily, examined as then required. No other ruling could have been made. The very purpose of a certificate is to afford prima-facie evidence of its statements. The deed offered showed that the married woman had not acknowledged the deed on an examination separate and apart from her husband. Necessarily, therefore, the party could not prove a statutory deed by a certificate showing omission by one of the parties of a necessary requirement. That ruling does not apply to the case at bar. Here the express agreement is “that the deed was acknowledged in proper form.” In the case cited the only evidence (the certificate) showed the deed was not acknowledged in proper form. If the language of the certificate in the case at bar had disclosed that Augustine Rivard did not acknowledge the deed as married women were required to do, or if the proof had been to that effect, we should not hold that her deed was valid when made. But the language of the certificate in her deed is not quoted and both parties have agreed that she did acknowledge the deed in proper form. This conclusively
Again, Wannell v. Kem, 57 Mo. 478, was an action for a note secured by a mortgage of the wife’s land. The wife denied the truth of the certificate of her acknowledgment. It was held that this made an issuable fact and that the finding of the jury of the falsity of the certificate under proper instructions was not open to review. The'principle of this decision sustains our conclusion that it is the fact of a statutory acknowledgment and not the recital of that fact by the notary or other officer, which validates a joint conveyance by the husband and wife. In the case cited the notary was permitted to amend his certificate which as first written was defective. The wife denied its truthfulness after its amendment, and only after a finding in her favor was the mortgage avoided. This clearly recognizes the principle that it is only a defective acknowledgment which will render their statutory deed invalid.
Plaintiffs cite Hord v. Taubman, 79 Mo. 101, where it is said that the fee estate of a married woman could only be divested “by a deed executed cojointly with her husband, and acknowledged in the way pointed out by law.” This is just what we have ruled.
Hoskinson v. Adkins, 77 Mo. l. c. 540, cited by plaintiffs is in perfect accord with our ruling. It is accurately stated in that case, to-wit: “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. ’ ’ This is the precise distinction that sustains our ruling, that it is the execution and acknowledgment of a married woman which carries her general estate when her husband was a co-grantee, and that her estate passed under such an instrument when delivered, regardless of the notation of her acts on the deed by the third party (notary or officer) in the per
Plaintiffs also cite Olay v. Mayer, 183 Mo. l. c. 157. That case notes the distinction between the suability of a married woman on her contract before and after the enabling act of 1889. [R. S. 1899, sec. 6864.] The decisions prior to that act we have shown do not militate against our conclusions. The decisions subsequent of course have no bearing on the question whatever.
We hold that the deed of Augustine Rivard and her husband executed and properly acknowledged by each, was within her statutory power to convey her inherited land and vested the grantees with title good against her or her heirs, although the certificate of the officer who took the acknowledgment was attested only by Ms private seal.
In the application of this principle to contracts of married women in states where their deeds must be executed according to statutory requirements, equity will not decree a reformation on account of the failure of the married woman to acknowledge the deed, or to do any other act prescribed by the statute, in order to qualify her to make the contract. For otherwise it would practically repeal the governing statute and require her to make a contract which she had not made. But. when none of these defects exist, and the contract has been executed by the married woman in a lawful manner, then the rule, according to Mr. Pomeroy, is thus expressed: “A mere mistaken description in her executed conveyance may, however, by the preponderance of authority, be corrected against her.” [6 Pom. Eq. Jur., sec. 681, p. 1147; Hamar v. Medsker, 60 Ind. l. c. 416; Herring v. Fitts, 43 Fla. 54; Stevens v. Holman, 112 Cal. 345; Christensen v. Hollingsworth, 6 Idaho, l. c. 91; Parish v. Camplin, 139 Ind. l. c. 10.] This is necessarily a sound principle of law, for it is nothing more than the stating that the valid contract of a married woman may be reformed in the same manner as the valid contract of any other person.
Plaintiffs cite Shroyer v. Nickell, 55 Mo. l. c. 267, and other cases following it, to show this court announced a legal doctrine not in harmony with the above
The crucial question in the case at bar, is not whether the decree correcting the married woman’s deed followed the ruling in Shroyer v. Nickell, supra, but whether the trial court in refusing to apply that ruling acted without any jurisdiction of the subject-matter and the parties or erroneously exercised a lawful jurisdiction? The failure to distinguish between ‘‘the erroneous exercise of jurisdiction” and “the want of jurisdiction” is a fruitful source of confusion and
' In the matter in hand, the trial court had jurisdiction in the statutory mode of the grantees in the deed with full power to determine the cause of action stated in the petition filed. That its decree correcting the description of the land was opposed to the ruling of this court in Shroyer.v. Nickell, supra, and* the case following it did not oust it from its rightful jurisdiction of the case presented, and its judgment, however erroneous, under the decisions of this court at that time, not having been appealed from or brought up for review by writ of error, is conclusive on the parties thereto and all persons in privity with them.
Plaintiffs in this case have no other or higher claim to relief than was had by their mother, and as her nonaction against the decree was a complete bar to her, it is equally so against them. We hold that the decree under the agreed statement of facts in this case, was not void nor open to attack below, and that it shut off any claim on the part of plaintiff for the land to
The very decisions relied on by plaintiffs are to the effect that, whether the married woman’s deed was void for noncompliance with the authorizing statutes then in vogue, both she and her husband are debarred from recovering possession of the land delivered under such deed in an action of ejectment, without accounting to the grantees for the payment of purchase money and improvements after deducting rents. This is distinctly suggested in the last paragraph of McReynolds v. Grubb, 150 Mo. l. c. 365. To the same effect is Bagby v. Emberson, 79 Mo. l. c. 140, and Shroyer v. Nickell, 55 Mo. l. c. 270.
The present action is a mere substitute for ejectment because of the appropriation of the land for railway purposes by the acquiescence of Augustine Rivard after she and her husband had obtained the purchase money and delivered possession under their joint deed. [Scarritt v. The K. C. & So. Ry. Co., 127 Mo. 298; Alexander v. K C., Ft. S. & M. Ry. Co., 138 Mo. 464.] If they could not retake the land in ejectment without such accounting, clearly neither they nor their heirs, could take a second payment therefor by an alternative suit for its value, without making a similar accounting.
Upon the facts stipulated in this record there is no theory of law or equity which would warrant the judgment recovered by plaintiffs and it is reversed.
Concurrence Opinion
CONCURRING OPINION.
I agree to the result reached by my brother Bond. This is one of those, cases where the court is put in a strait betwixt two because the broad justice of the matter runs in a strong current with the defendant, but where (on some phases) there is judicially-made technical law in favor of plaintiffs in this jurisdiction, as is abundantly shown by the strong brief of respondents’ counsel. It is true that under our married women’s enabling acts, passed in the seventies and eighties of the last century, their status with respect to their property and property rights has been so readjusted and altered that they are- now su% juris, may contract and be contracted with, sue and be sued, but that readjustment is too new to permit us to lightly or irreverently break the tender vessels in the workshop of the old learning on married women’s law. That learning may still be of useful application to interests vested prior to those late enabling acts and to transactions arising under the old dispensation. Those vested interests are yet live interests to be reckoned with and those acts are yet to be drawn within the possible lines of live litigation to come here to be ruled. Hence the need of abundant caution in unsettling the law. I do not dissent from my brother’s learned views on the validity of Mrs. Rivard’s 1857 deed, or on the validity of the unappealed from judgment correcting that deed in December, 1857. I mark myself as saying nothing thereon at this time, because I deem it unnecessary to do so, since this case breaks, at another point.
My reasons for concurring in the result reached by my brother are these: It is the settled doctrine of
With that proposition • established, to-wit, that there never could be a possessory action accrue to any one for the recovery of this particular land, this by reason of the fact that the railway company appropriated it openly, entirely, physically and obviously to the whole world more than a generation and a half ago, I think the life estate outstanding in the husband of Mrs. Rivard and which did not fall in until 1899‘, has nothing to do with the case. If the heirs of Mrs. Rivard, the plaintiffs here, could sue for possession then the outstanding life estate would have been an insurmountable barrier in the road at all times before that life estate fell in. Their cause of action for possession in such event would not accrue to them until, their father died; for he,- as tenant by the curtesy, being sui juris, had disposed of the life estate, and that conveyance of his entitled his grantees to possession and the subvendees of his grantees likewise during the existence of the life estate. But as there could be no
Going one step further:' If we have nothing to do with the right to possession and have no interest in when a cause of action for possession accrued, which never could accrue, then we must look alone to the real cause of action, which is, I think, one arising because of (and on) the unlawful and absolute appropriation of the land. That cause of action accrued, if at all, at the time the land was subjected to said permanent and wrongful appropriation. It accrued, if at all, to the mother of plaintiffs. The most favorable view to plaintiffs is that, as she died during disability and as the right in suit pertains to (or is in the nature of) land, then, it passed and accrued to her children on her death in 1877; and, hence, by the flux of time, it has long since been lost to them by delay in suing. We say “most favorable view,” because if the thing be considered a mere right of damages, a-chose in action, then the right of recovery was lost sooner and on obvious grounds.
It might be argued that until the life estate fell in it would be impossible to estimate their damages, or, more strictly that part of the value of the land belonging to them as heirs.- But this is not so. The father’s share in this value, represented by his life estate, had passed to defendants. It was susceptible
There being no fraud, no concealment, no covin, no fiduciary relation and plaintiffs’ ancestors having received, kept and used the purchase price of this land a half century ag'o, and they having stood by with folded arms until a great city was built on it, the healing influence of time must be allowed full play and the result reached does exceedingly excellent justice. [Hubbard v. Slavens, 218 Mo. l. c. 615 et seq.] Where-V fore, for reasons stated, I concur in the result.
Concurrence Opinion
CONCURRING- OPINION.
In this case I concur fully in the opinion of Bond, J., upon all questions discussed by him therein. I also concur in the views of Lamm, O. J., wherein he holds that neither the parties plaintiff, nor their ancestor, ever had any possessory action, but only had an action for the reasonable value of the land appropriated for a public use, which action is long since barred by the Statute of Limitation. In addition I have a view of my own, not suggested in either
Going further to the agreed statement of facts, the judgment in that case not only decreed a correction ■ of the deed, but went further and decreed title in the plaintiffs. Cutting out the part relating to the correction of the deed, such judgment reads: “ It is therefore ordered, adjudged and decreed by the court here that . . . the title to said real estate, to-wit (here follows description.), pass to and vest in plaintiffs as against defendants as well as against all others claiming under them as fully,” etc. I have no doubt that the decree undertakes to and does go further than the mere correction of the deed. It undertakes to and does vest title to the land in dispute in the plaintiffs in that action. To my mind this judgment is not void upon its face, and so long as it stands, it is an insuperable barrier to recovery by the plaintiffs in this case, and this, too, without reference to any discussion about this deed and its acknowledgment. Our' brother Bond limits his discussion as to the judgment as one correcting the deed solely. I think the judgment goes further, and not only corrects the deed, but divests title. The circuit court, as a court of equity, may have erred in judgment, but with that we have nothing to do. Married women, infants and lunatics have always been the special wards of equity, and if a court of equity can decree title from an infant or a lunatic, there is no good sense in saying that it can not decree title out of its other ward, i. e. a married woman. Upon any of the several theories, this case should he reversed.