Lewis v. Curry

74 Mo. 49

• Court: Supreme Court of Missouri
• Decided: October 15, 1881
• Status: Published

Opinion

I.

Sherwood, C. J.

In order to make a valid mortgage of the homestead, it was not necessary, as the law stood at the time that the mortgage was made, (3 Wag. Stat., 697, § 1,) that the wife should join therein. Eor this reason the mortgage must be adjudged valid, and that it passed whatever of homestead right, if any, which defendant possessed.

II.

It is unnecessary to discuss the point whether the mortgage was merged in the judgment of foreclosure or not. There was a judgment of foreclosure; this is admitted, and if such admission had not been made, the deed of the sheriff established the fact; and the recitals of the deed are prima facie true. 1 Wag. Stat., p. 612, § 54; McCormick v. Fitzmorris, 39 Mo. 24. And the section just cited is broad enough to cover all sales under execution — • sales under judgments of foreclosure, as well as ordinary execution sales.

III.

There is no objection to the sheriff’s deed because of its acknowledgment, either as to form or substance. The acknowledgment was not taken before the Hon. Samuel A. Richardson, one of the grantees in the deed, but it was taken before the court over which Judge Richardson presided. McClure v. McClurg, 53 Mo. 173. As the deed had to be acknowledged in open court, it, of necessity, had to be acknowledged in the court from whence the execution issued, else the acknowledgment could not have been taken at all, since the statute does not authorize the judge of an adjoining circuit to be called in to sit and hold court for the mere purpose of taking the acknowledgment of a sheriff's deed. These considerations sufficiently show that the rule ordinarily applicable where an acknowledgment is taken before an individual, as for instance a notary, who is named as a grantee in the deed, does not apply to cases of this sort.

IV.

There is nothing in the point that “ the demise laid in the petition, is the 1st day of March, 1876, while the deed was made on the 27th day of April, 1876,” for so far as concerns the debtor and his privies, the deed of the sheriff relates to the time of the sale. Lackey v. Seibert, 23 Mo. 85; Thornton v. Miskimmon, 48 Mo. 219; Strain v. Murphy, 49 Mo. 337; Porter v. Mariner, 50 Mo. 364.

V.

The circuit court, after properly admitting, excluded the sheriff’s deed. This was error, as seen above, but inasmuch as the judgment in favor-of plaintiffs was correct, we affirm it.

All concur.