Lincoln v. Thompson

75 Mo. 613

Opinions

Gantt,

Footnotes

•

* Special Judse.

The original petition in this cause does not appear in the transcript, but it is admitted that the suit was commenced to the March term, 1874, of the Clay circuit court, and on the 20th day of December, 1877, an amended petition was filed, on which, with the answers thereto and the reply, the cause was tried at the February term, 1878. By the amended petition it was charged that Jamos T. Y. Thompson was in 1864 seized of the land in controversy. It contained about 200 acres and may be called he Thompson Home Place. Under a judgment obtained 2nd of May, 1862, which was alleged to have been revived from time to time, the plaintiff' received, in September, 1870, a sheriff’s deed duly executed and acknowledged, conveying to him all the interest of said Thompson to this land. The petition went on to state that in 1864, Thompson, being in embarrassed circumstances, and many unsatisfied judgments standing against him, procured to be issued executions thereunder, and caused .one E. C.. Tillman, a brother-in-law, to become, at sheriff’s sale, the purchaser of this -tract of land, and to receive a deed therefor from the sheriff’; that this deed was dated 'the 28th of April, 1864; that the money for this purpose was furnished by Thompson, and that on receiving the sheriff’s deed, Tillman executed an agreement in writing to convey the property to A. J. Calhoun in trust for Emily W. Thompson, wife, and James P., John D. and Anna R. Thompson, children of said James T. Y. Thompson. In 1872 Tillman made such a conveyance accordingly. James T. Y. Thompson died in 1872. It was alleged that the deed to Tillman and the conveyance to Calhoun were part of a fraudulent contrivance on the part of James T. Y. Thompson to assure this real estate to his wife and children in fraud of his creditors; and the plaintiff prayed that the deed might be set aside and himself put in possession of the land which had constantly been occupied by Thompson in his lifetime and by his widow and children since his death.

James P Thompson had died The suit was instituted against Emily “W. Thompson, John D. and Anna R. Thompson and their trustee A. J. Calhoun. The trustee and the minor children filed a general denial.

Emily W. Thompson answered separately and specially. She denied all the fraud charged in connection with the deed to Tillman, and.alleged that the purchase by him was effected with money to her belonging, arising from her separate estate. Further, she set up a purchase from, the Farmers’ Bank of Missouri and Jno. ~W. Reid of this property in 1867. She said that they had purchased it at sheriff’s sale from Thompson in April 1865, and had received therefor a sheriff’s deed duly executed and acknowledged. This deed was alleged to be lost, and a copy was filed as an exhibit. It was alleged further that in 1862 Thompson, being largely indebted, had executed a deed of trust or mortgage to A. W. Doniphan and A. J Calhoun to secure certain of .his creditors ; that this deed was afterward foreclosed by the Olay circuit court, and a decree made for the sale of the real estate therein described, to pay these creditors; that prior to the making of the decree, Doniphan and Calhoun, together with the judgment creditors of Thompson, on the one hand, agreed with Emily W. Thompson, on the other, that she should relinquish'her dower in all the land sold, and that she should receive in consideration of such relinquishment one-sixth of the proceeds of the sales, and a deed from the Farmers’ Bank of Missouri and Jno. "W. Reid for the Thompson Home Place. This agreement was alleged to have been in writing and signed by the judgment creditors of Thompson, the plaintiff included, but to have been lost. The answer went on to say that this agreement had been carried out; that defendant had released her dower to all the 'land sold, thereby much increasing the price realized therefor; that she had received one-sixth of the proceeds, and also from the Farmers’ Bank of Missouri and Jno. W. Reid a conveyance of the home place bearing date Blst of October, 1867; that ever since that time she had relied on the title thus acquired, holding the property adversely to all the world ; that this adverse possession had continued uninterruptedly for ten years; and she pleaded this lapse of time as a bar to plaintiff’s prayer for relief.

To this answer plaintiff t replied on 28th of February, 1878, having on the 23rd moved to strike from it, as'inconsistent and antagonistic with the defense of the Tillman transaction, all that was said respecting the acquisition of the title of the Farmers’ Bank of Missouri and Jno. TV. Reid. He denied the making of a deed by the sheriff to these grantors; denied the existence of- the judgment, the making of the sale alleged to have occurred in April, 1865, the execution and acknowledgment of the sheriff’s deed.

It is stated in the transcript that the case was called for trial on the 2nd of March, 1878. This seems to be a clerical error, for the second day of the trial appears to have been March 1st, 1878.

. The plaintiff put in evidence the sheriff’s deed to him. There was some discussion as to the revival of the judgment under which this deed was made, so as to preserve the lien of it from the day when it was rendered. The circuit court held that an unbroken lien had not been preserved. No error is seen in this ruling; but it does not affect the conclusions reached by this court.

The plaintiff' then put in evidence the deed to Tillman and his conveyance to Calhoun. He supplemented these with other testimony, which leaves no doubt as to the character of that transaction. The money bid by Tillman was paid by Thompson. Mrs. Thompson had no separate estate, and the conveyances by which she claimed the home place under Tillman and Calhoun were void as against the creditors of J. T. V. Thompson. ' It was proved that the plaintiff was not a party to what may be called the “dower contract.” He knew nothing of its tenor, and nothing to impart notice of its existence. At the sale under the foreclosure it was announced that Mrs. Thompson would release her dower to all the land sold under the decree of foreclosure.

The defendant offered in evidence what was called a sheriff’s deed, purporting to have been made pursuant to a sale of all Jas. T. V. Thompson’s interest in the home place on the 26th of April, 1865. There was-a subsisting and unsatisfied judgment against Thompson, on which an execution was issued June 2nd, 1864, and placed in the hands of Francis R. Long, sheriff of Clay county, on June 5th, 1864. He levied this writ on the home place. Apparently Long was succeeded in office by Darius Gittings, but when the one ceased to be, and the other became, sheriff, does not appear. Gittings seems to have made sale of the home place under this writ, in April, 1865, under the levy previously made in 1864 by Long. He executed a deed reciting the judgment, execution, advertisement and sale on the 26th of April; and judging from the only indicia before us, Long on that day produced this deed in court, claimed that he had executed it as sheriff, and acknowledged it. This paper itself was not produced; it was alleged to have been lost; a copy, or what professed to be a copy, from the books of the recorder of deeds for Clay county, was produced and seems to have been unchallenged so far as its claims to be a copy of the deed are concerned. How it came to be admitted to record by the recorder of deeds, we are not told, nor when this occurred. There is a memorandum under the clerk’s certificate of the acknowledgment by Long, that it was “filed April 27th, 1865,” but there is nothing to show who made this memorandum.

This paper can with no propriety be called a sheriff’s deed; for until such an instrument has been executed, acknowledged and certified as the law directs, it has no validity. The plaintiff objected to it for these reasons, and the circuit court sustained the objection. The defendant, then asked to be allowed to have this assumed copy acknowledged nunc pro tunc by Darius Gittings, late sheriff of Olay county, present in court, and this the court permitted, and allowed the instrument thus acknowledged to be read, against the exception of the plaintiff.

Up to this time the only certificate on the paper was in the following terms:

STATE OE MISSOURI, 1 County or Olay. j

Among the records and proceedings of the circuit ■court begun and held at the court house' in the city of Liberty, in the county of Olay, on the 26th of April, 1865, and on the third day of said term the following were had, to-wit: “Be it remembered, that on this 26th day of April, 1865, comes Ei’ancis R. Long, sheriff of Clay county, in the State of Missouri, and produces a deed executed by himself as sheriff as aforesaid to the Earmers’ Bank of Missouri and Jno. W. Reid, jointly, for the following described real estate,” (here follows the description,) “and said sheriff' acknowledges said deed to be his act and deed for the uses and purposes therein mentioned, and the same is ordered to be certified on said deed accordingly.”

Then follows a certificate by the clerk under the seal of court declaring the foregoing to be a full, true and perfect copy of the acknowledgment by the sheriff in open court; below which appears the words: “Piled 27th of April, 1865,” without more. On the 9th of January, 1878^ the recorder of deeds for Olay county certified this paper to be truly copied from his records. The acknowledgment of this paper, which the circuit court at the trial permitted Darius Gittings to make, bears date March 1st, 1878, and recites that Darius Gittings, late sheriff, etc., produces a deed (not a copy of a deed) executed by him, etc., etc., and acknowledges it accordingly. On the same 1st of March, 1878, Darius Gittings appears to have acknowledged this same paper to be his act and deed. On this last occasion he acted as an individual, not as sheriff. The paper thus acknowledged was then read in evidence against the exception of the plaintiff, and, this being all the evidence, the circuit court dismissed plaintiif’s bill. After the usual motions he appealed to this court.

i sheriff’s deed : record^eifcry'of acknowledgment. We are struck by the form of the certificate indorsed on both of the deeds before us; as well that relied on by the pi aintiff, as that adduced by defendant., The law governing the acknowledgment of ¿ee¿g executed by a sheriff upon the sale of lands under execution, has been unchanged for more than sixty years. The statute has always directed that the sheriff * * executing any deed for lands, etc., sold by virtue of any execution, shall acknowledge the execution thereof before the circuit court, * ■ * “ and the clerk of such court shall indorse upon such deed a certificate of such acknowledgment under the seal of the court; and shall make an entry of such acknowledgment * * with the names of the parties to the suit, and a description of the property thereby conveyed,” etc., etc. R. S., p. 179, §§ 2393, 2394. It seems very clear that the first thing to be done by the sheriff, after making a sale, is the execution of a deed to the purchaser; but if he stops here, the purchaser may take nothing. An indispensable solemnity is the acknowledgment (or proof) of this deed in open court. The clerk must then certify upon the deed that it has been so acknowledged (or proved) and this certificate must be under, the seal of court. The deed is then complete and ready for delivery.

But the additional duty is laid on the clerk to “ make an entry,” (upon the records of the court) “of such acknowledgment * * with the names of the parties to the suit, and a description of the property thereby conveyed,” etc., etc. The words italicized are no part of the acknowledgment ; they are something supplemental to it, which the clerk is directed to enter of record. They should not be indorsed upon the deed. The certificate of acknowledgment indorsed upon- that instrument, is the original, authentic, evidence of the act of the sheriff*. This certificate cannot be aided, if defective in any particular, by reference to the entry upon the record, (Samuels v. Shelton, 48 Mo. 444; Adams v. Buchanan, 49 Mo. 64; McClure v. McClurg, 53 Mo. 173 ;) nor will it be invalidated because that entry is defective. Scruggs v. Scruggs, 41 Mo. 242. Instead of this order being observed in the deeds before us, it would seem that the entry upon the record was first made, and that then an order followed that this, entry should be certified, or indorsed, on the deed. This is a cumbrous, unnecessary and dangerous departure from the directions of the statute. The certificate of acknowledgment indorsed on the deed, and the entry on the record, were not intended by the law-makers to be copies of each other. The certificate of acknowledgment itself may be and should be very brief. It need not, and should not, contain a description of the property conveyed. That is already given with particularity in the body of the deed itself. Neither should it name the parties to the execution under which the sale was made. That also the deed itself shows. But the entry on the record should contain these particulars: first, because the statute so directs, and secondly, because their mention on the record answers an intelligible and useful purpose. The distinction between the certificate indorsed upon the deed, and the entry on the record enjoined upon the clerk, is pointedly shown in Samuels v. Shelton, 48 Mo. 444. The form of the certificates adopted in the deeds before us is careless, and w7e think dangerous; but we will not pronounce it so irregular as to he void.

Our opinion as to the deed to Tillman and his conveyance to Calhoun, has been already intimated. In substance, Thompson himself, as far as his creditors are concerned, was the purchaser on this occasion.

The deed to Emily W. Thompson from the Farmers’ Bank and Jno. W. Reid, is a very carefully guarded deed of quit-claim, conveying industriously only such title as the grantors had. They do not even cite the deed by which they derived title to the land; but describe the property as being the same which was sold to Tillman. On looking at the paper constituting their title, we see that it is neither the deed of Sheriff Gittings nor of Sheriff Long. The one did not acknowledge, the other did not execute it. It is among the unexplained puzzles of this case how it came to pass that this paper was admitted to record at all. Certainly no law with which we are familiar entitled it to be recorded, or made either the paper itself, or a copy of it,'evidence. What especially, excites our curiosity is the evidence by which it was made to appear that this paper was an authentic copy of anything. Gittings appears to have regarded it as an original document; w7hich it confessedly was not. It was, however, received as a copy of a paper executed by Gittings and acknowledged by Long in 1865, the original'being alleged to be lost, and this copy Darius Gittings was permitted to acknowledge as his deed. "When he had done this the circuit court seems to have considered that the acknowledgment related back to the 26th of April, 1865.

_. acknowiedgment. One difficulty here seems serious. No paper which Gittings had ever seen before was produced, but something purporting to be a copy of a deed executed by him nearly thirteen years before. He declared this paper to be his act and deed and spoke of having executed it. At most, it could only have been a copy of something he had formerly executed. It seems wholly inadmissible to admit this instrument as evidence of a deed validated by relation, so as to take effect from the 26th of April, 1865. Plaintiff had no notice of the sale of which this deed was the supposed outcome. He was by the most meritorious title a purchaser for value. The execution under which the sale in 1870 was made, belonged to him. Any bid made by him, less than the face of the execution, was paid as soon as the hammer of the auctioneer fell. The fact of his being a purchaser fQr value was indeed admitted by the pleadings ; but his relations to the executions, the sheriff's deed and the statute, which requires all sales made by a sheriff to be for cash, render it indisputable that, at least, it presumably appears that he purchased and paid for the property in question, in September, 1870.

8. possession, a S notioe op ci.aim. It seems also that he had no notice of the sale made in April, 1865. Constructive notice is out of the question. There was nothing having capacity to impart notice. As to actual notice, we see and hear of none, unless the possession of the home place by the defendant was sufficient to apprise plaintiff as early as 1870 of this sale in April, 1865. But if we should consider the plaintiff bound to know that defendant claimed under the deed of the 31st of October, 1867, an inspection of that document would give him no intimation of the sale made in April, 1865. Reference is in that instra ment made to the sheriff’s sale to Tillman ; but nothing is said of a sale by the sheriff to the Farmers’ Bank and John W. Reid. Possession may in some cases be evidence of a claim ; but when a particular claim is notorious and sufficient to account for a possession, no one is called on to speculate as to the existence of some other claim.

We are, therefore, of opinion that the deed made in April, 1865, (assuming it to be settled that such a deed was then made,) could not be perfected by acknowledgment in 1878 so as to cut out the plaintiff.

He certainly occupies a more advantageous position than was held by Merry in the case of Alexander and Betts v. Merry, 9 Mo. 514. That case was decided in 1845. It has recently been quoted with approval, and must be regarded as settled law. Strain v. Murphy, 49 Mo. 337. Although in every conveyance by which Merry claimed, the fact of a' sale, the defective certificate of which alone gave him- any standing, was recited, he was held unaffected by such recital. This decision might be much narrowed without weakening the case of the plaintiff' in this suit. It is too familiar to need the citation of authority in its support^ that the doctrine of relation is never applied to the injury of an innocent, still less of a meritorious stranger.

•4. sheriff*s deed : variance between deed and certifieate of acknowledgment. It was strenuously argued that the court should read the certificate of the acknowledgment made in 1865 as if the name of Gittings occupied the place of _ ? ,. , , . Long. It was urged that the maxim, “prae- ° ° , , . sentía, corporis tollit errorem nominis, required this reading of the certificate. This can only mean that if the court be satisfied that the acknowledgment was really made by Darius Gittings; that he, and not Francis R. Long, was bodily present in court when the acknowledgment was taken; then the clerical blunder of miscalling his name is of no consequence, or is cured by the proof before us of his bodily presence. But we fail entirely to perceive any ■evidence that Gittings, and not Long, acknowledged the deed on the 26th of April, 1865. All that we know on the subject comes from the certificate of the clerk.' Whether we should be at liberty to listen to any other evidence we* need not stop to inquire; for absolutely none was offered. Under these circumstances it would be a startling thing if a court could strike from a legal document an essential and controlling word, completely changing its import. We have no reason whatever for the inference that the clerk made any mistake at all. If we suspected such a thing, we might be embarrassed by the difficulty presented by a misprision which affected an important interest, but which there might be serious difficulty in correcting. But as already said, all that we see, all that we hear, (and we may add, all that we fail to hear,) leads us to believe, not only as judges but as individuals, that the matter certified by the clerk is true so far as he declares that Francis R. Long' acknowledged the deed we are considering; that it was Long, and not Gittings, who came into court, producing the paper which he certified; and though it is clear that a blunder was committed by some one, we are wholly unable to. construe this certificate as signifying that the acknowledgment was made by a person whom it does not once'mention. It is because we can see no reason for thinking that Gittings was bodily present to the clerk, that we cannot obtain any foundation for attempting to cure the supposed error of misnaming him.

There are cases in which a trivial discrepancy in the name of theperson executing, and the person acknowledging a deed, has been reconciled by proof of the identity of the two. If a grantor’s name be correctly recited in the body of the deed, and he signs it in his true name but acknowledges it by a wrong name; or when an erroneous name is signed but the right one used in the acknowledgment; the error is cured. Such was the case of Middleton v. Findla, 25 Cal. 80. There, however, the mistake was very trivial. The deed was executed by Edward Jones. It appears to be acknowledged by JEdmond Jones. There was no question but that Edmond and Edward were the same person. Obviously such cases are no guide to us out of tbe present difficulty.

It is certainly true that a person may become bound by any mark or designation he may think proper to adopt. Butchers & Drovers' Bank v. Brown, 6 Hill 443. But we have no sort of evidence that any one intended, in the certificate before us, to use one name for another.

5. limitations. We need not pause upon the defense resting on lapse of time. In 1878 defendant set up that she had held adversely for ten years and more. But she does not say that she had been in adverse possession for ten years when this suit was commenced; and the fact was otherwise. A plea of limitations should always refer to the commencement of proceedings supposed to be barred by lapse of time. If the statutory period then lacks a single day, there is nothing gained by the protraction of litigation for many years beyond the time within which suit should have been commenced.

As to the dower agreement, it became irrelevant when it was shown that plaintiff was not a party to it. Doniphan and Calhoun and any number of the creditors of James T. Y. Thompson, on the one hand, and Emily W. Thompson, on the other, had no power to conclude the rights of any other creditors.

No question appears to arise on this agreement. The home place was not sold under the decree of foreclosure. If indeed the Farmers’ Bank of Missouri and John W. Reid were the owners of the home.place, their vendee would hold it against the world, but not by reason of the dower agreement.

Our opinion, therefore, is, that the plaintiff is entitled to the relief he asks, and we reverse the judgment and remand the cause, with instructions to the circuit court to make a decree in conformity with the views here expressed.

Judge Norton did not sit, having been of counsel; Hough and Henry, JJ., concur; Sherwood, C. J., and Rax, J., dissent.

Hon. Thos, T. Gantt, late Presiding Judge of the St. Louis Court of Appeals.