240 Mo. 13 | Mo. | 1912
Suit to quiet title. Williams Burns, the common source of title, on November 19, 1869, deeded the property in controversy to Oliver Hazard Perry Williams, giving the initials only of his first names, so that in the body of the deed the granting clause was to O. H. P. Williams. This deed was written upon a Pennsylvania form, the grantors living in Pittsburg, and upon this form, in the lower left-hand corner, opposite the certificate of the notary, is a blank which was filled in and signed by the grantor, Burns, reciting that he had received from the grantee, O. H. P. Williams, the consideration mentioned in the deed. The deed was filed by Williams with the recorder on May 7, 1870. In due time he received back the deed from the recorder, with the usual certificate stating that the deed had been duly recorded in Book M, giving the pages. This deed was copied by the recorder into the records, but in place of the initials O. H. P. in the body of the deed, the recorder by mistake wrote the initials O. N. P., changing the middle initial from H. to N. The recorder also copied the receipt above mentioned, which was included in the form of the deed, and in copying that receipt he correctly copied the initials as O. H. P. The property becoming delinquent for taxes, the collector of the county brought suit against the record owner, O. N. P: Williams, and service was had by publication by such initials. The suit resulted in a judgment against O. N. P. Williams, sale under the execution and purchase at such sale by defendant’s grantor, who received the sheriff’s deed dated March 8,1881, and who had no notice of the mistake in the record. Subsequently, and before the institution of this suit, the heirs of O. H. P. Williams conveyed the- property to plaintiff, who filed this suit. Judgment was rendered for the plaintiff, the court rejecting the sheriff’s deed and the subsequent deeds to the defendant on the ground that the judgment against O'. N. P. Williams
Urging the reversal of this judgment, the defendant asserts (1) that the sheriff’s deed to its grantor conveyed a good title, because the judgment in the suit for taxes was against the record owner, O. N. P. Williams, and was binding on the true owner notwithstanding the mistake made by the recorder; (2) that the mistake in the middle initial was unimportant, and the judgment upon notice by publication against O. N. P. Williams was good as against O. H. P. Williams; (3) that the offer of proof to sustain title by adverse possession should have been admitted by the court.
On the other hand, plaintiff contends that the mistake in the middle initial was fatal; also that the record was not controlling as against the true owner because of the mistake made by the recorder in changing the letter H to N. Plaintiff also contends that as the record showed the initials to be O. H. P. in the receipt attached to the deed and copied correctly into the record, the subsequent purchaser was put upon notice of the mistake in copying the initials in the body of the deed into the record.
In addition to the above, it may be necessary to advert to other facts in the course of the opinion.
I. (a) Numerous decisions of this court hold that a judgment in a suit for taxes against the record owner, with notice by publication to such record owner, is good against the holder of an unrecorded deed. The leading case is Vance v. Corrigan, 78 Mo. 94, in which this court said: “We are of opinion that the provision ■of the charter requiring the suit to be brought against the owner of the land, does not mean that it must, in
The foregoing decision is cited with approval in many subsequent cases, down to and including Land and Lumber Company v. Bippus, 200 Mo. 688, where Pox, J., speaking for the court says: “It is no longer an open question in this State that the officers in suits wherein it is sought to enforce the lien of the State for taxes, in the absence of notice to the contrary, may look to the record of deeds to see who the owner of the property is, and a purchaser under the judgment in such suits against the record owner, in the absence of notice that such person against whom the suit was brought was not the true owner, would be protected in his purchase against the holder of an unrecorded deed from such apparent record owner.”
The doctrine of these cases agrees with the common understanding of the people, and has become a fixed rule of property.
We are now called upon to decide whether this rule applies where the name -of the grantee in the deed has been by mistake of the officer incorrectly recorded, so that the record owner appears to be other than the true owner. In such case is the purchaser at the
'With reference to the filing and recording of deeds and other instruments in writing, section 2810, Revised Statutes 1909, provides as follows:
“Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof, and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice.”
This section does no more than say that notice is imparted by the record back to the date of filing; so that during the interval between the filing and the copying into the record the deed itself will impart notice. After the deed has been copied into the record subsequent purchasers must look to the record alone, the deed itself having been returned presumably to the owner. If the officer should return the deed to the owner, certifying that it has been recorded, but should fail to make any record thereof, it could hardly be claimed that a subsequent purchaser would be bound to take notice of the filing of the deed and of its contents.
It is claimed in effect by plaintiff that the filing of the deed imparts to subsequent purchasers notice of its contents, even if it be incorrectly recorded, and
In Troyer v. Wood, 96 Mo. 478, a deed to Daniel Troyer was recorded in the name of Daniel Tragar, and tax proceedings were had in such record name,
The case of Williams v. Butterfield, 214 Mo. 412, also relied upon by plaintiff, is a case of spoliation of the record and not in point here.
In Whinnery v. Lumber & Mining Co., 231 Mo. 262, the doctrine of the Troyer case was not controverted by the parties, who stood upon the proposition that in point of-fact there had been no mistake in copying the deed into the record, and the court found the facts to be as claimed in this respect. The court was not called upon to pass upon the effect of a mistake in the record, nor upon the proposition involved in the Troyer case.
We think that the case of Terrell v. Andrew County and the case of Vance v. Corrigan, taken together, correctly expound the law, and that the doctrine of these cases has never been ovei’turned by any later decision of this court.
The authorities in other jurisdictions are in conflict on this question, but the cases holding to the con
(b). The doctrine of estoppel may also be invoked by the defendant. The rule respecting two innocent parties is thus expressed in 16 Cyc., p. 773: “Wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it.” This rule in its practical application usually, if not always, involves something of negligence or remissness on the part of the one who enables the third person to commit the wrong. It may be justly argued that there is not the slightest negligence on the part of the owner in failing-to see that a deed is not properly copied into the record by the official designated by law for that purpose. On the other hand, it must be conceded that one who files a deed for record is responsible for its contents and condition when it leaves his hands, and that the duty is upon him to see that the instrument is susceptible of a fair copy. In this case the original deed to O. H. P. Williams was submitted for our inspection. It was argued on behalf of the defendant that the middle initial therein shown is the letter N, and not H. The
We hold, upon both grounds above stated, that the sheriff’s deed conveyed a good title to the purchaser at the tax sale.
II. In discussing the question whether suit with notice by publication against O. N. P. Williams will bind the owner, O. H. P. Williams, it will be proper to first notice some propositions which have been established by the decisions of this court: - .
(a) Where there are two given names in the record, service by the middle name alone by publication is bad. [Corrigan v. Schmidt, 126 Mo. 304; Turner v. Gregory, 151 Mo. 100.]
(b) IVhen the first name is correctly given in the suit and notice of publication, an omission of or mistake in the middle initial is unimportant. [Howard v. Brown, 197 Mo. l. c. 46, and cases cited; Nolan v. Taylor, 131 Mo. 229.]
(d) Where the record title shows the initials only of the given name, suit and notice by publication by such initials will bind the record owner, on the theory of estoppel. [Elting v. Gould, 96 Mo. 535; Ohlmann v. Sawmill Co., 222 Mo. l. c. 66.]
In the ease at bar we have a new question, viz.: When the grantee takes a deed by his initials, three in number, will a suit by substituted service against him be good, when a mistake is made in the middle initial? As applied to this case, the question is, will a judgment upon substituted service for taxes against O. N. P. Williams, be good against O. H. P. Williams, who is the true owner?
No man can be deprived of his property by suit without due notice. In regarding notice by publication as effective against the owner of the property, we must indulge the presumption that he sees such notice. We have then this situation: O. H. P. Williams, residing outside the State, sees a notice that suit has been brought against O. N. P. Williams for delinquent taxes, which he knows are delinquent, and upon property described in the notice which he knows belongs to him. He cannot object that the notice names him by his initials, as he took the deed by his initials and, under the doctrine above stated, he is estopped. Had the notice read “Oliver N. P. Williams,” clearly he could not object under another doctrine above set out. Can he object because in place of “Oliver,” his first name, his first name is given as “0” ? In other words, is the initial “0” to be regarded as a name? Oridinarily, fur purposes of notice by publication, as we have shown above, initial letters are not regarded as the equivalents for the names for which they stand. But if the owner of the name sees fit to adopt the initials as and
The decisions of this court, cited by plaintiff, throw no light upon this immediate question. They simply support the rule announced above, that where the record of the deed gives the full name suit with substituted service by initials is bad. The real question is, Does substituted service on O. N. P. Williams comply with the statute, and properly and fairly notify O. H. P. Williams of the suit? Upon the theory that such notices are rarely seen by the defendant, and are permitted only upon the ground of necessity, and
We are constrained to hold (1) that inasmuch as the owner, Williams, took the deed by his initials, the rule that a mistake in the middle initial is immaterial applies; (2) 'that the published notice addressed to O. N, P. Williams, stating that suit had been filed to enforce the State’s lien for taxes on land owned by O. N. P. Williams, such notice properly describing the land, was a sufficient notice to O. H. P. Williams of his identity with the defendant in the suit.
III. We cannot sustain the contention of plaintiff that the correct record of the initials “0. H. P.” in the receipt recorded with the deed put the subsequent purchaser upon notice of the mistake in the name in the body of the deed as recorded. This receipt was no part of the instrument, was not required by law to be recorded, and the examiner of titles was not bound to notice or read it. As a matter of fact, there is no proof that this receipt was brought to the attention of the subsequent purchaser. There is no proof that he had any knowledge that would put him upon inquiry as to whether or not the name was correctly copied in the record of the deed. One who examines the records is not required, as a matter of law, to read what is not required to be recorded.
IV. As the foregoing discussion finally disposes of the case, it is unnecessary to notice other points suggested by counsel.
In accordance with the views herein expressed, it becomes the duty of this court to reverse the judgment and direct the circuit court to enter up judgment vesting the title to the land in controversy in the defendr ant. It is so ordered.