Wilson v. Albert
89 Mo. 537
Mo.
1886
Check Treatment
Sherwood, J.

On December 22, 1880, plaintiff brought ejectment for a certain lot in the city of Cape Girardeau, and on trial had recovered judgment for the premises in question. David Bryant was the source of title of plaintiff, and plaintiff’s evidence showed title in Bryant, derived from the government through mesne conveyances, Bryant’s immediate grantor being Joseph Andrews by deed dated May 12, 1812. On the same day the land was “ mortgaged ” to Joseph Andrews to secure, as it seems, the payment of the purchase money, three hundred and fifty dollars.

It is scarcely necessary to discuss the sufficiency of the certificate of acknowledgment of the officer to a deed made in 1819 by Joseph Andrews and wife, to David Bryant, whereby the mortgage aforesaid purports-to be released, and the land re-conveyed to Bryant, for the reason that, leaving that instrument out of consideration, the title in Bryant is still perfect, as the mortgage will be presumed to be satisfied after the lapse of twenty years, nothing to the contrary thereof appearing. Chouteau v. Burlando, 20 Mo. 482; Cape Girardeau v. Harbison, 58 Mo. 90. But if there is any defect in the certificate it is cured by virtue of sections 2805, 2306,-Revised Statutes, since the deed has been of record since 1824. So that taking either view of the point, the title in Bryant, the ancestor, -was indisputable.

-Then followed evidence showing the death of Bryant, and who his heirs were, and that among the grantors in those deeds were those heirs. As to two of those -heirs the deed, if otherwise sufficient, undoubtedly *542passed the title of these heirs to the plaintiff, the certificates of acknowledgment being good. As to the other grantors, some of the heirs and their husbands, the certificates of acknowledgment are plainly lacking .in statutory requirements in so far as concerns the wives; but, notwithstanding this, inasmuch as the femes covert were seized of this land as heirs of their father, David Bryant, if seized at all, long before what is known as the “ Married Woman’s Act ” (R. S., sec. 3295) -went into operation, the deeds of their husbands would be sufficient to pass to the plaintiff whatever rights such husband had to the land, whether during the joint lives of the husband and wife, or whether a greater interest in the lands, by reason of the husband being tenant by the .curtesy initiate, in consequence of which the title of the plaintiff may become good during the life of the husband if he should survive his wife. Hall v. Stephens, 65 Mo. 670.

Cases where the wife is seized of land as at common law, and cases where she is seized of land under the married woman’s act are not at all analogous in their incidents and consequences. In the former class of cases the husband is as unfettered in his conveyance of .whatever interest he has in his wife’s land as he was at common law; in the latter class, he can only convey in 'the mode pointed out in the statute, section 3295. Or, as is said in Hord v. Taubman, 79 Mo. 101, “In a conveyance made under the provisions of the statute of the fee of the wife, the title can onty be transferred as an indivisible integer or not all.” Counsel on either side do not appear to apprehend this distinction; it is a very marked one, and is pointed out in Mueller v. Kaessman, 84 Mo. 318, and cases cited. If in the case at bar the wives were seized under the act referred to a very different question would be presented here. It follows from what has been said that if the conveyances to plaintiff were of any validity he became seized of two-.fifths of the title of the premises absolutely, and this *543would authorize a recovery by him pro tanto, aud if these conveyances were otherwise valid, as to the husbands, as they undoubtedly were, so far as regards the certificates of acknowledgments, he also became entitled to whatever marital interest the respective husbands possessed in the three-fifths of the land ; and this, in connection with the two-fifths interest aforesaid, would authorize a recovery by plaintiff of the possession of the entire lot in suit.

But it is claimed that the deeds in form are insufficient to pass the title to plaintiff, for that they are mere quit-claim deeds, simply employing the words “ remise, release, and forever quit-claimP In New York, then possessing a statute of uses similar to our own, it was ruled that such words as those I have mentioned will raise an use by way of bargain and sale, which, by force of the statute of uses, becomes operative to pass the title. Jackson v. Burgot, 10 Johns. 456. And in the same case it was also ruled that no precise technical words are requisite to raise an use ; that if the words amount to a present contract of sale or bargain a trust is instantly raised on which the statute operates. And in the same • case it was also ruled that the words “ release and assign ” were operative words of conveyance equally, efficacious in accomplishing the same result. To the game effect see Platt v. Brown, 30 Conn. 336.

In Hunt v. Hunt, 14 Pick. 374, where the effect of •a quit-claim deed was being discussed, Shaw, C. J., ob■served: “Courts of law have gone very far in modifying the rules of conveyance, both those of the common law and those which have their effect from the statute of uses, so as to give effect and. operation to the deeds of parties rather according to the manifest intent than according to the force of the particular words used to effect the conveyance. So that, where it is manifest from the •efficient words of conveyance used, that it was intended .and understood that the estate should pass in one way *544as by feoffment, bargain and sale, covenant to stand seized, or release, but some of the, circumstances are' wanting, which by the fules of law are necessary to pass the estate in that form, and it cannot so pass, yet if all the circumstances exist which are sufficient to pass the estate in another form * * * the court will construe it to be a conveyance of such form, notwithstanding the-words used are not properly adapted to that purpose, so as to give it effect, and cause the estate to pass.” And in Doe v. Reed, 4 Scam. [5 Ill.] 117, it was ruled that a deed of release and quit-claim containing no words of' sale or conveyance is as effectual in transferring the title to land as a deed of bargain and sale. And in Roe v. Tranmer, 2 Wils. 75, it was ruled that words of release may operate as a grant, etc. See, also, Fash v. Blake, 38 Ill. 363: Eckman v. Eckman, 68 Pa. St. 400; Anglade v. St. Avit, 67 Mo. 434, and cases cited; Martindale on Conveyances, section 59. For these reasons the quit-claim deeds must be held to contain sufficient operative words of conveyance.

I am thus brought to consider the point whether the-Bryant heirs were barred by the statute prior to suit brought. There were no declarations of law asked or refused and no points saved for review on that subject. On what theory the court tried the cause, it is impossible to determine. And it has been the custom of this, court in such cases to refuse to interfere. Durel v. Masterson, 50 Mo. 487; McEvoy v. Lane, 9 Mo. 47; Von Phul v. City, 9 Mo. 48. But notwithstanding this it has been frequently ruled by this court that, while it will not weigh the evidence in law cases, yet that it will interfere when there is no evidence whereon to base the verdict, although no instructions are asked. Hart v. Leavenworth, 11 Mo. 629; Robbins v. Phillips, 68 Mo. 100; Pipkin v. Allen, 24 Mo. 520; Heyneman v. Garneau, 33 Mo. 565; Morris v. Barnes, 35 Mo. 412; McEvoy v. Lane, supra. And it has also been ruled by *545this court that it will review- the action of the lower court where exceptions are saved on points of law other than the giving or refusing of instructions. Von Phul v. City, supra; Smith v. St. Francois County, 19 Mo. 433; Silvey v. Summer, 61 Mo. 253; Cunningham v. Snow, 82 Mo. 587. On looking into the evidence, however, for the purpose of ascertaining whether there is evidence on which to base the finding in favor of plaintiff, I encounter no difficulty. There is evidence tending to show that the possession of the locus by Albert was not a continuous one for the requisite statutory period; the weight of that evidence, of course, does not concern this court. And as to the possession of Frank not being adverse to Bryant’s heirs, this is established, while he was in possession of the lot, by his declarations to Ivers ; and such declarations are competent evidence as explanatory of the character of his possession ; (1 Gif. Evid., sec. 109 and cas. cit.) and these declarations being in disparagement of the title of the declarant, are not only admissible against the declarant, but against those claiming in privity with him. 75.. sec. 189 and cases cited ; Darrett v. Donnelly, 38 Mo. 492; Morey v. Staley, 54 Mo. 419; Burgert v. Borchert, 59 Mo. 80. And the letters written by I. R. Wathen to Rankin, the administrator of Bryant’s estate, since deceased, in relation to leasing the property to Frank, were also competent evidence and part of the res gestae ; and taken in connection with the testimony of Ivers showed that Frank was a mere tenant of Bryant’s heirs. This being.the case the title of Frank, acquired by Albert at trustee’s sale, was valueless, and Albert stood in Frank’s shoes ; and could only base'his claim on his own adverse possession ; but on this point the court, as already stated, found in favor of plaintiff, and this finding, having evidence to support it, must be held conclusive.

The only point remaining for discussion is whether *546the court erred in refusing to let plaintiff answer the question whether, since the beginning of the suit, he had surreptitiously obtained possession of the premises. There was no error in such refusal; this is apparent for two reasons: Such a possession thus obtained would be void in law, and in legal contemplation no possession at all. And the defendants having in their answer stated that they themselves were.in possession of the lot could not be allowed to contradict the allegations of their own pleadings. Bruce v. Sims, 34 Mo. 246; Capitol Bank v. Armstrong, 62 Mo. 59; Weil v. Posten, 77 Mo. 284; Kuhn v. Weil, 73 Mo. 213. Besides, in any event, the aduaission of the offered testimony could not have affected the determination of the question in issue, whether the plaintiff, upon the facts proven, was entitled to recover, :and if error, if any, was committed in this regard it was wholly immaterial.

Finding no error in the record the judgment should be affirmed.

All concur.