Alexander v. Merry

9 Mo. 510

• Court: Supreme Court of Missouri
• Decided: October 15, 1845
• Status: Published

Opinion

Scott, J.,

delivered the opinion of the court.

In July, 1842, Merry brought an action of ejectment against Betts for & lot of ground in the city of St. Louis, and at the return term of the writ, on' motion, B. W. Alexander was made a co-defendant. Merry obtained judgment, and Betts and Alexander appealed to this court.

Merry claimed title through Joseph Janes, whose ownership was the sousce of .title to both parties in the cause. By a deed made the 16th Doc., 1835, Janes conveyed all his interest in the lot to James Loper. This deed recited the fact that the lot thereby conveyed, had been sold under the redemption law to A. Gamble, Book M, page 182. It was proved on the 31st January, 1838, before the clerk of the district court of the United States for the eastern district of Louisiana, by Wm. T. Lewis and Wm. Y. Lewis, the subscribing witness thereto. The certificate of proof stated that the witnesses were known to the officer to be the persons whose names were subscribed to the deed, who, under oath, declared that Joseph Janes was the real person whose name was subscribed to the said deed as a party thereto, and that he signed the same in the presence of the said witnesses, and that they subscribed thereto as witnesses thereof. This deed was recorded on the 22d June, 1838, By deed bearing date on the 21st day of January, 1826, Loper conveyed one-half of the lot to Samuel Merry. In this deed it was also recited that the lot had been sold under the redemption law to A. Gamble, as recorded in book M, page 182. This deed was proved before the clerk of the circuit court of St. Louis county by John Riggin, a subscribing witness thereto, on the 23d of October, 1837.

The certificate of proof stated that John Riggin, personally known to me to be the real person whose name is subscribed to said foregoing instrument as a party thereto, who, being by me duly sworn, upon bis oath declared that James Loper, whose name was subscribed to said instrument as a party thereto was the real-person who executed the same, and that the said Riggin signed said instrument as a -witness thereto.

John W. Walsh, public administrator of St. Louis county, by virtue of an order of the county court of St. Louis county, made on the application of the said Walsh, administrator of said Loper, on the 2d day of September, 1840, for the purpose of paying the debts due by 'Loper, sold and conveyed to Merry all the lot in dispute. In the proceedings of the county court relative to the sale of this lot, whenever the lot was described, it was represented as having been sold to A. Gamble, under the redemption law, book M, page 182.

It was admitted that the defendant Betts was in possession of the lot in controversy, under Alexander, at the commencement of this suit.

Loper’s death, and the administration of his estate by Walsh, the public administrator, were admitted.

The plantiif also gave in'evidence a notice in writing, signed by Loper, addressed to B. W. Alexander, informing him of his claim to the lot in controversy, and warning him that he would pay for no improvements made on the lot.

The plaintiff, on his part, offered in evidence records of two judgments recovered in the circuit court of St. Louis county, on appeal and certiorari from justice’s courts. One in the name of James P. Parker against George W. Ferguson, and Joseph Janes, his security in the appeal bond, for $56 02 1-2, with interest and costs, and dated 16th May, 1821, — the other in the name' of Peter Ferguson, against Joseph Janes and William H. Pococke, the security in the bond for a certiorari for the sum of $43 50, and costs, and dated on the 31st May, 1831. On these judgments, executions severally issued on the 16th and 31st May, 1821, under and by .virtue of which, as well as of other execu tions, as appears by the advertisement of sale, the lot in controversy was sold at sheriff’s sale, on the 21st day of August, 1821, to A. Gamble, who received from the sheriff a certificate, of which the following is a copy:—

“I, Joseph Brown, sheriff of the county of St. Louis, to all whom it may concern, certify that by virtue of sundry executions-to me directed, from the circuit court of St. -Louis county, viz : one in favor of Peter Ferguson — one in favor of James P. Parker — one in favor of John Keesucker — and one in favor of C. Wilts, adm’r against Joseph Janes, returnable to August term 1821, I exposed to sale as the law directs, the following property, viz : A lot of ground in the town of St. Louis, (the lot in controversy,) purchased of Moses D. Bates, containing sixty feet front on the Second or Church street, by one hundred and fifty feet deep, bound on the east by the said Church street, on the south and west by lots of Louis Lemonde. And that Archibald Gamble being the highest and last bidder, the same was struck off to him for the sum and price of twenty dollars, and that the said Archibald Gamble will, on the 21st day of February, 1824, be entitled to a deed therefor, unless the same shall be redeemed, by virtue of the act of Assembly, entitled ‘an act for the relief of debtors and creditors.’

JOHN K. WALKER, D. Sh’ff.

Recorded this 6th day of Sept., 1821,

Archibald Gamble, Clerk.”

On the 9th day of November, 1824, John K. Walker, who was successor in office to Joseph C. Brown, who was the sheriff when the sale was made, in pursuance of the foregoing certificate, executed to Gamble a deed in the usual form, which was acknowledged in- open court, and record-ed.

Afterwards, in July, 1842, Gamble, under the provisions of the 51st section of the act concerning executions, petitioned the circuit court of the county of St. Louis, setting out so many of the foregoing facts as relate to the sale of the lot in controversy to him, and prayed (hat a deed might be made therefor, by the then sheriff of St. Louis county* The petition was granted, and Marshall Brotherton, the sheriff, on the 8th day of August, 1842, executed a deed to Gamble for the lot in dispute, which was acknowledged and recorded.

Afterwards on the 15th day of September, 1842, Jos. C. Brown, who was the sheriff when the sale was made to Gamble in 1821, executed a deed to him for the said lot, which was acknowledged and recorded.

By several mesne conveyances, the lot passed from Gamble to Alexander, the present owner, who has made improvements on it to the value of six thousand dollars.

The act for the relief of debtors and creditors, commonly called the redemption law, which was enacted on the 28th of June, 1821, provided that when any lands or tenements should be sold after the 15th July, 1821, by virtue of any execution already issued, or that might thereafter he issued, it should be the duty of the sheriff or coroner instead of executing a deed for the premises sold, to give to the purchaser a certificate in writing, describing the land purchased, and the sum paid therefor, and the time when a purchaser would be entitled to a deed therefor, unless the same should be redeemed, as was provided by the act; and the sheriff should, within ten days from the time of such sale, file in the office of the clerk of the circuit court of the county where the land was, a duplicate of such certificate, signed by him, for record, which should be taken as evidence of the facts therein contained, and should be considered as notice to subsequent purchasers and creditors.

A subsequent section of the same act, provided that the defendant might redeem the land within two and a half years from the time of sale, and if it should not be redeemed within that time by the defendant, then any creditor might redeem it within the three years, and within that time a creditor might redeem from a creditor.

The 8th section of the act provided that unless the land should be redeemed^by the defendant or some of his creditors within three years from the time of sale, then the sheriff or other officer or his successor in office, should complete the sale by executing a deed for the same to the purchaser.

On the 11th January, 1832, the above-recited act was repealed, with a saving of the validity of all proceedings under it before the repeal thereof.

The defendant objected to the reading in evidence of the deed from Joseph Janes to James Loper, on account of the insufficiency of the proof, but the objection was overruled, to which an exception was taken. Objections were for the same reason made to the reading of the deed from Loper to Merry, but they were overruled.

The foregoing facts being thrown into shape of a special verdict, a judgment was rendered thereon for Merry the plaintiff, from which Betts & Alexander appealed to this court.

The first point in the cause, is that arising from the admission in evidence of the deed from Joseph Janes to Loper, which was objected to by the defendant, on the ground of the insufficiency of the proof. The statute directs that the certificate of proof, shall set forth as one of the matters thereof, that the subscribing witness was 'personally known to the officer granting the certificate. The certificate as above set forth omits the word personally, and merely states, that the witnesses were known to the officer. The question is, whether this omission renders the certificate fatally defective? The 12th section provides, that the grantor acknowledging a deed, shall be personally known to the officer, to be the person whose name is subscribed to the instrument as a party thereto. The 14th section provides, that no proof of a conveyance shall be made by a subscribing witness, unless such witness is personally known to the officer, to be the person whose name is subscribed to the instrument as a witness thereto. The next section provides, that no certificate of proof shall be granted, unless such subscribing witness shall prove that the person whose name is subscribed thereto as a party, is the person who executed the same. This section does not require, it will be seen, that the witness should have a personal knowledge pf the grantor. But if the officer is satisfied in any manner by the witness, that he knew the grantor named to be the real party, he may take and certify the instrument. So the law itself would seem to use indiscriminately the term knowledge and personal knowledge. It is not easy to define what is personal knowledge, as contradistinguished from knowledge, uncoupled with that epithet. Instances may be stated wherein the difference is apparent; others may be imgined, where the distinction is not so easily drawn. No doubt the lav/ intended, that as the ofíicer acted undei' oath in taking the proof of deeds, he should have knowledge of the identity of the grantor, or of the subscribing witness, as would enable him to swear, that the grantor or witness was the person he represented himself to be. Its object was to prevent one person from fraudulently personating another. It is much to be desired that every officer who takes the acknowledgment of a deed would conform literally to the law. Rut we know that the convenience of our people require that the taking of the acknowledgment of deeds, should be entrusted to those who are ignorant of the forms of the law, who will take a proper acknowledgment, and blunder in certifying it. Did it follow as a necessary consequence, that any acknowledgment improperly certified, had been in fact taken under such circumstances as were unwarranted by law, there would be no difficulty in settling this question. Because an officer omits to certify that the grantor was personally known to him, but merely says he was known, it cannot be inferred tliat the grantor was not personally known. The construction of certificates of knowledge, have frequently engaged the attention of courts, and they all seem impressed with the importance of extending a liberal construction to these instruments. In the case of Shaller vs. Brand, 6 Bin. 438, the supreme court of Pennsylvania says, we have always declared: “that it\ was sufficient, if the law was substantially complied with, and on any other principle of construction, the peace of the country would be seriously affected, as the certificates of the acknowledgments of deeds, have been generally drawn by persons w'ho were either ignorant of, or disregarded the words of the act of assembly. The law must be complied with, but in construing it we shall always be inclined to support a fair conveyance if possible.” In the case of Nantz vs. Bailey, 3 Dana, the court says, “it is not indispensible that the certificate should state the exact process of examination, in verbal detail, such particularity has never been observed or required. That they would not presume that the officer did not understand the statute, or comprehend his own certificate.” The ease of Jackson vs. Gumaer, 2 Cow. 566, is a case very similar to this. There the Judge failed to certify, that the “grantor was known to him to be the person described in, and who executed the deed.” The chief justice in delivering the opinion of the court remarked, “I am unwilling to say that titles which depend for proof upon certificates thus drawn are to be put in jeopardy by the allowance of such a technical objection, for I cannot but consider the acknowledging officer drawing such a certificate, as possessing all the knowledge required by the statute. The summary of all that is to be found in the books on this question is that a substantia! compliance with tbe law, is al! that is required. When this appears, the courts feel no inclination to disturb the land titles of the country by indulging a severity of criticism on the language of the certi.le Jtes of the proof or acknowledgment of deeds. From tbe condition i>f many portions of this State, the disadvantages undir which they labor m regard to legal information, and the necessity of entru.t-ing the execution o‘f the laws in many instances to inexperienced hands an application of these principles of construction, to certificates of acknowledgment or proof will not only be found wholesome, but indispensable to the peace and quiet of the country.

For the determination of this cause, we do not think it necessary to examine into the constitutionality of tiie law, for the relief of the debtors and creditors, or as it was called the redemption law. If it is considered without any reference to that law, the same difficulty arises from the statute of frauds, as is presented by the irregularity of the certificate of sale, which was issued to the purchaser under tbe provisions of the act for the relief of debtors and creditors. In the cases of Evans vs. Wilder, 7 Mo. Rep. and Evans vs. Ashley, 8 Mo. Rep. this court held that certificates of sale under the redemption law, similar to that in the record of this case were void, and that a deed executed by the successor in office of the sheriff who made the sale, was inoperative, on the ground that the law which authorized the successor to make a deed, was repealed before the execution of it. Grant that the redemption law was void, and that an absolute interest in the land .was sold by the sheriff, and purchased by Gamble, then comes the statute of frauds, which if not as fatal as the nullity.of the redemption law presents insuperable difficulties in the way of the defendant in this action. It has been held by this court that a sheriff’s sale is within the statute of frauds. That by the sale alone, no interest in the laud passes and that until a deed is executed, the fee is in the debtor. This opinion v/as not pronounced without authority to sustain it. In the case of Simonds vs. Catlin, 2 Caines’ Cases 61, Judge Kent, in a State where there was no statutory enactment requiring the sheriff to execute a deed for land sold by him under execution, held that such a sale was within the statute of frauds, and that without a deed the title did not pass. The same doctrine was afterwards maintained in the case of Gratz vs. Catlin, 2 J. R. and is afterwards repeatedly recognized in the courts of New York. In a late case in the supreme court of S. Carolina, Christie vs. Simpson, 1 Richardson 407, it is held that a sheriffs sale of land under an execution, is within the statute of frauds, and without a proper entry or memorandum in writing, the purchaser will not be bound.

Although sheriffs sales of land uuder an execution, are within the statute of frauds, yet that statute does not make penal contract void, it merely says that no action shall be brought on them. In the case of Coughlin vs. Knowles, 7 Metcalfe, it was held that an oral contrrct for the sale of land, is not utterly void by the statute of frauds, that although such a contract would not be regarded if made the foundation of a suit at law or equity, yet is • not a nullity. The same doctrine is maintained in the case of Lane vs. Shackford 5th New Hampshire Rep. 133; McCowen vs. West; 7 Mo. Rep. 569. Indeed, great would be the mischiefs of a contrary doctrine. Now that which is void cannot be made good by relation. After a sale of land by tile sheriff under a judgment, the execution of a deed is frequently delayed for months and years; and yet as against the defendant in the execution, a deed after the lapse of that time has never been thought to be void. If the deed did not relate back to the sale, what would there be to impart to it any validity at the time of its execution. If the sale were considered as a nullity, the officer after the lapse of a reasonable time would have no more authority to make it than an utter stranger. The case of Jackson vs. McCall, 3 Cow, 75, fully illustrates the doctrine of relation in regard to sheriffs deeds, and is one resembling this in most respects. There the purchaser at sheriff’s sale, which was made in 1818, did not receive a deed until 1823; one of the objections to the admission of the deed in evidence was, that it was not given in a reasonable time. The suit was brought by a devisee of the defendant in the execution. In that case, as in this, the purchase money had been paid. The court held that the plaintiff being the devisee of the judgment, stood in the same relation to the purchaser at the sheriff’s sale, that the debtor himself would have stood had he been alive. That it was a case in which the doctrine of relation was peculiarly applicable, there being no strangers or third persons whose interests could be affected by it. That doctrine, continues the court, is this : Where there are divers acts concurrent to make a conveyance estate or thing, the original act shall be preferred, and to this the other act shall have relation. That the principle has been repeatedly'recognized, that a deed executed in pursuance of a previous contract for the same premises, is good by relation, from the time of making the contract, so as to render invalid every intermediate sale or disposition of the land by the grantee. That the consideration money was paid by -the purchaser. He had done everything to entitle him to a deed. The money roust be presumed to have been paid over by the sheriff to the plaintiff in the execution in satisfaction of the debt. That the essential and important part of the sheriff’s duty had then been performed, and nothing remained but the formal act of delivering the deed, the purchaser having-been in possession, as we have a right to presume from the day of sale. The lapse of time under such circumstances, and between these parties, can afford no objection either to the validity of the deed or to its relation back to the time of sale.

The facts presumed by the court in the case just cited, are in evidence in this case. The purchase money was paid by Gamble; it was paid over by the sheriff, and Gamble took possession of the lot shortly' after the redemption had elapsed. So the only material difference between the case cited and that, now before us, consists in the character of the parties to the suit. In the case cited the relation of the deed to the time of the sale affected a privy, in this case a stranger is affected. The doctrine is, that in fictione juris, semper existit equitas. Relation can only affect párties or privies, and not strangers. It is a general rule with respect to the doctrine of relation, that it shall not do wrong to strangers; Case vs. Digoes, 3 Caines 262; Jackson vs. Bard, 4 John. 230. Merry must be regarded as a stranger. Whether he had notice or not, and in what light, he would be regarded in another form, we are not now called upon to determine. If one affected with notice should sell to another without notice, would not this involve all the equitable doctrine of notice, and would not a court of law feel itself embarrassed in determining questions of this kind?

St will be observed that no opinion has been expressed, as to the validity of the deeds executed by Brotherton & Brown. Assuming them to be operative, the difficulty above stated would prevent their operation against Merry. As to the suggestion that a party might go into a court of equity for a deed under such circumstances, it seems the statute of frauds would interpose obstacles to a purchaser, who should seek relief rvithout a note or memorandum in writing' of the sale. Without undertaking to determine whether the proceedings to obtain a deed from Brotherton were regular, or whether the deed from Brown was effectual, we must say we would be very loth to bring ourselves to the conclusion that there was no remedy in such cases.

The objection to the proof of the deed from Loper to Merry for half the lot in controversy is not noticed, because there was afterwards a deed to Merry for the entire lot, to which no objections were made.

The other judges concurring, the judgment will be affirmed.