Rivard v. Missouri Pacific Railway Co.

165 S.W. 763, 257 Mo. 135, 1914 Mo. LEXIS 284

• Court: Supreme Court of Missouri
• Decided: April 2, 1914
• Status: Published

Opinions

OPINION

BOND, J.

(After stating the facts as above).— ‘This case, having been submitted on an agreed statement of facts (as to all questions on which, right to recover depends), the proper judgment to he rendered is-a mere legal conclusion and the burden is upon plaintiffs to show that the judgment in their favor is the only one which could have been rendered under the applicatory law. [Gage v. Gates, 62 Mo. 412; Munford v. Wilson, 15 Mo. 540; Rannells v. Isgrigg, 99 Mo. l. c. 28; Graham v. Ketchum, 192 Mo. l. c. 24; State ex rel. v. Merriam, 159 Mo. l. c. 660; South Mo. Land Co. v. Combs, 53 Mo. App. 298.]

Acknowledgment: Married oman. The first question arising under the agreed statement is the effect of the absence of an “official seal” to t]ie certificate -given by the mayor of Kansas City of the acknowledgment “in proper form” before him of Augustine Rivard and Louis Rivard of the execution by them of a deed conveying certain lands “derived from Gabriel Philibert the father of AugustineRivard. ”

At the time of this acknowledgment of' the-grantors, the officer who took it, M. J. Payne, was-mayor of Kansas City and under its charter was empowered to take acknowledgment of deeds and to certify the same under the seal of the city. [Laws 1853, p. 244; Laws 1851, p-. 90, sec. 6, art. 3l] By giving-its mayor the same power as the mayor of St. Joseph,, the charter of Kansas City also made him ex officioa justice of the peace. Hence, at the date of this acknowledgment, he was entitled under the charter and the existing statutes to take it in that capacity. [R. S.. 1855, p. 358, secs. 17 and 18.]

At the date of the deed in question the common law power of a married woman to convey her lands by the judicial process of fine and recovery, had been substituted by statute in this and other states giving a married woman the power to make such conveyances by a joint deed with her husband. The process of conveying her lands by joint deed with her husband had been generally adopted in this country by married women in colonial times and the statutes in this and other states were declaratory and definitive of an anterior and continuous custom which had acquired the force of a law. [R. S. 1855, chap. 32, secs. 35, 39; Lindell v. McNair, 4 Mo. 380.] The statutes of this State at an early day provided that a married woman might be made a party when joined with her husband to certain legal actions. [R. S. 1855; chap. 128, art. 2, sec. 7.] These positive provisions of the law have been enlarged until at the present date they have abolished the inequality of married women in the enjoyment and assertion of the rights of property and have banished the obscuration to which they were subjected by the influence of feudalism in the common law of England. The present statutes mark the slow but sure adaptation, of the law to the progress of civilization and the edicts of enlightened public opinion. So far has this been accomplished that few relics remain of the disabilites imposed on them by the influence of military tenures. The law as it now exists is applied to the status of a married woman in a protective spirit and with the helpful purpose of putting her on a plane of equality, so far as is consistent with the nature of things, with all other citizens.

When the statute was enacted which was in existence when the deed under review was made, it was the purpose of the lawmakers, as disclosed in the terms of the act, to enable the married woman to sell her land by joining her husband in a conveyance, after acknowledging the execution of the deed in the manner prescribed by statute. The special acknowledgment then required has been now dispensed with. It was the purpose of the statute then, as at present, to make the joint deed of a married woman and her husband, when duly acknowledged by her and' delivered to the grantee, a complete transfer of the title to her land between the immediate parties or such as have notice thereof. [E. S. 1855, chap. 32, sec. 42.] The statute, then as now, required such acknowledgment to he made before a competent officer whose duty it was to certify the same as prescribed by the statute. But the statute did not make a mere certificate of the acknowledging officer operate as a conveyance of the land of the wife and husband. Their action in executing and acknowledging the instrument in the statutory mode was the efficient cause of the transfer of the title. The requirement of the certificate showing a previous compliance by the spouses with the statutory requisites of a valid deed to a married woman’s land, was for the purpose of evidencing the making' of the contract by them, and to afford a basis for the filing of the deed in the recorder’s office, and to dispense with proof of its execution unless the recitals of the certificate were denied. [Sharpe v. McPike, 62 Mo. 300; Wilson v. Kimmel, 109 Mo. 260; Brim v. Fleming, 135 Mo. 597; Harrington v. Fortner, 58 Mo. 468.]

In the case at bar the deed was acknowledged both by the husband and wife in the manner provided by the statute and before a competent officer, and was signed and delivered by them to the grantees and the purchase money was received and the possession turned over to the grantees. The contract of sale was therefore completely executed by the parties making it, each of whom had complied with every statutory condition to validate the contract imposed on them. And it necessarily carried the title as between them, unless that was defeated by the failure of a third party to perform a ministerial duty. This person, the mayor of Kansas City, before - whom each of the grantees had made a correct and formal acknowledgment of the respective execution of the deed, did certify that fact in proper language and attested it by his official signature followed by his private seal, stating that no official seal had been provided. Hence it is palpably plain that the only irregularity pertaining to this certificate, was the omission to call the seal impression following the official name a public seal instead of a private seal. This presents the naked question whether this miscalling of the seal impression which followed the truthful record of the valid making of a deed, can annul its effect as a conveyance between the immediate parties, although executed by them in full and strict compliance with the law.

We cannot assent to this view. It is at war with the settled law relating to certificates of acknowledgment of deeds and other instruments. These are nothing more than recitals by the person before whom the acknowledgment is made, that the grantors in the deed have or have not acknowledged it in the form prescribed by law. The only object of the certificate is to furnish prima-facie evidence of the facts constituting the acknowledgment; for it is not conclusive evidence and may be impeached or supported by testimony. [R. S. 1855', chap. 32, sec. 47.] It is not auxiliary to the transfer of the title, for it is the act of a person who is a stranger to the title. It is simply a statutory method of affording presumptive evidence of antecedent facts. It is a mere evidentiary narration which when properly made is taken to be prima-facie true, but if imperfectly made it may be afterwards amended by the certifiers so as to speak the truth. This for the reason that it is the prior facts and not the subsequent recital of them, which constitutes the contract or deed. The instrument between the immediate parties is just as efficacious with as without it. The only difference being that if it is placed upon the deed in accordance with the actual facts of acknowledgment made and done as required by statute, and the instrument is recorded, then it becomes good, not only between the immediate parties, but against subsequent purchasers. This is the sole utility of the certificate when the facts of due acknowledgment actually exist prior to its endorsements thereof on the deed. For it is these facts, and not the mere historical record of their performance, which would cause the title of the grantors to pass to- the grantees.

So in the case at bar, after the husband and wife signed and acknowledged the deed under review in exact compliance with the statute, both as to signatures and as to the special acknowledgments required of the wife, before a proper officer and delivered it in exchange for the price of the land (all of which the agreed statement shows was done), neither the husband nor wife could maintain any action for the divestiture of that title or to recover the price a second time (as is now attempted to be done by their heirs), unless they could adduce evidence tending to prove that there was some want of compliance with the statute on the part of the wife in the matter of the acknowledgment on a separate examination of the execution by her of the deed in question. The possibility of such evidence is excluded by the clear, positive and unequivocal terms of the last paragraph of subdivision six of the agreed statement of facts where it is stipulated said “deed was acknowledged in proper form before M. J. Payne, mayor of the City of Kansas, now Kansas City, Missouri.” If that statement is true, as it must be taken, then Mrs. Augustine Rivard not only signed a deed conveying her land, but at the time of so doing, made an acknowledgment in complete - compliance with the statute then in existence before a proper officer who has been shown to have been authorized under the charter of Kansas City to take her .acknowledgment and who did take it and properly record the fact but did not attest his record with a seal provided by the city.

If any rights of innocent purchasers were involved, a wholly different question would be presented, but in this case the plaintiffs are the heirs of Augustine Rivard. They stand precisely in her shoes and have no rights of action which she could not have asserted herself if she had survived her husband. That she could not have brought an action either of ejectment or for a second recovery of the value of the land is perfectly plain under the provisions of the statute which the agreed statement shows she complied with when she sold it the first time. If any other theory were true the absurd result would follow that after having done all that a married woman, was required to do in order to convey title to her land and received the purchase money, she could thereafter bring action for the land or its value, not because of the invalidity of her contract or her acknowledgment thereof before a proper officer, but for the fact that such officer had failed to affix to his official signature to the record of her acts in conformity with the law, a public instead of a private seal. In other words, such a theory would give the certifying official the power by such neglect to divest title to property which had been validly conveyed by its owners according to the terms of the statutes. That is not the law, and was not the. design of the statute enabling married women to dispose of their property which existed when this deed was made.

Nor do the cases cited for the plaintiffs sustain their contention. The case of Geary v. Kansas City, 61 Mo. 378, is a ruling upon a certificate of acknowledgment made by the same officer as mayor of Kansas City to which he appended his official name under a seal which he states was his private seal, “there being no official seal of office provided.” It does not appear from the opinion who was grantor in the deed, nor is there any statement in the opinion which indicates for what purpose the deed was used on the trial below, except the possible inference that it was offered in evidence as proof of the execution of the deed, and objected to on the ground of the absence of the seal to the certificate of M. J. Payne, mayor of Kansas City. In dealing with the point presented the court held that he (the mayor) was authorized under the charter to take the acknowledgment of the deed but was required to affix to Ms certificate the seal of the city and not his own seal. The deed was seemingly received in evidence in the lower court upon primafacie proof of its execution afforded by the certificate. This court held that was error and reversed and remanded the cause, evidently for the purpose of permitting the party relying on the deed to make other, proof of its execution than the certificate of the mayor. The point decided in that case has not the remotest application to the conclusion reached by us under the express terms of the agreed statement of facts. All that Judge Napton held was that a defectively attested certificate would not supply the necessity of providing a due execution of the deed. In the case at bar the due execution of the deed including its acknowledgment, is admitted in so many words in the agreed statement of facts. Judge Napton did not hold that the deed before Mm did not carry the title of. its maker to the immediate grantee, for the mere misprision of the attesting officer. On the contrary the inference is clear, from the disposition of that case, that it was sent back for a new trial to supply the proof of execution which the omission of the public seal prevented the certificate of the officer from affording.

Respondents cite Huff v. Price, 50 Mo. 228, and Shaffer v. Kugler, 107 Mo. l. c. 63; neither of these cases are the least in point. The former was a contract for future conveyance made by the wife alone. The possession was turned over to the grantee who made some payment and put up some improvements. The husband and wife brought ejectment. This court, held the executory agreement of the wife, she having no separate estate, was unenforceable under the statutes then existing. But notwithstanding that fact, it was held they could not regain possession of the land except by payment to the defendant of the amount which he had paid on the same and the value of the improvements. There was no joint conveyance nor any question as to the effect of the certificate of acknowledgment in that case.

The second case was a post-nuptial agreement of the wife for the conveyance of her general estate to her husband. The court held this was not enforceable against her or her heirs, there being no statute at that time which permitted such contracts between husband and wife. This ruling is clearly aside from the matter at hand.

In the case of Robinson v. Dryden, 118 Mo. 534, the plaintiff brought ejectment and claimed title through a married woman’s deed which was offered in evidence and was excluded,because the certificate did not show she was privily, examined as then required. No other ruling could have been made. The very purpose of a certificate is to afford prima-facie evidence of its statements. The deed offered showed that the married woman had not acknowledged the deed on an examination separate and apart from her husband. Necessarily, therefore, the party could not prove a statutory deed by a certificate showing omission by one of the parties of a necessary requirement. That ruling does not apply to the case at bar. Here the express agreement is “that the deed was acknowledged in proper form.” In the case cited the only evidence (the certificate) showed the deed was not acknowledged in proper form. If the language of the certificate in the case at bar had disclosed that Augustine Rivard did not acknowledge the deed as married women were required to do, or if the proof had been to that effect, we should not hold that her deed was valid when made. But the language of the certificate in her deed is not quoted and both parties have agreed that she did acknowledge the deed in proper form. This conclusively settles that fact and shows that the case cited has no conceivable bearing on the one under review.

Again, Wannell v. Kem, 57 Mo. 478, was an action for a note secured by a mortgage of the wife’s land. The wife denied the truth of the certificate of her acknowledgment. It was held that this made an issuable fact and that the finding of the jury of the falsity of the certificate under proper instructions was not open to review. The'principle of this decision sustains our conclusion that it is the fact of a statutory acknowledgment and not the recital of that fact by the notary or other officer, which validates a joint conveyance by the husband and wife. In the case cited the notary was permitted to amend his certificate which as first written was defective. The wife denied its truthfulness after its amendment, and only after a finding in her favor was the mortgage avoided. This clearly recognizes the principle that it is only a defective acknowledgment which will render their statutory deed invalid.

Plaintiffs cite Hord v. Taubman, 79 Mo. 101, where it is said that the fee estate of a married woman could only be divested “by a deed executed cojointly with her husband, and acknowledged in the way pointed out by law.” This is just what we have ruled.

Hoskinson v. Adkins, 77 Mo. l. c. 540, cited by plaintiffs is in perfect accord with our ruling. It is accurately stated in that case, to-wit: “A married woman’s title does not pass by the execution and delivery of the deed, but the acknowledgment is as essential as her signature and the delivery of the deed to give it effect. ’ ’ This is the precise distinction that sustains our ruling, that it is the execution and acknowledgment of a married woman which carries her general estate when her husband was a co-grantee, and that her estate passed under such an instrument when delivered, regardless of the notation of her acts on the deed by the third party (notary or officer) in the performance of Ms mimsterial duty of providing primafacie evidence of the acknowledgment of the grantees.

Plaintiffs also cite Olay v. Mayer, 183 Mo. l. c. 157. That case notes the distinction between the suability of a married woman on her contract before and after the enabling act of 1889. [R. S. 1899, sec. 6864.] The decisions prior to that act we have shown do not militate against our conclusions. The decisions subsequent of course have no bearing on the question whatever.

We hold that the deed of Augustine Rivard and her husband executed and properly acknowledged by each, was within her statutory power to convey her inherited land and vested the grantees with title good against her or her heirs, although the certificate of the officer who took the acknowledgment was attested only by Ms private seal.

Married Woman’s Deed: Description of Land Corrected by Court of Equity. II. The next question presented is, what was the effect of the decree of the circuit court in reforming the mistake in the description of the land conveyed in the deed? This action was brought by the grantees in the deed witMn a few months after the conveyance to them. Augustine Rivard and her husband were brought in by publication and having made default the court heard evidence and rendered a judgment correcting the mistakes in the deed and vesting the title thereunder as fully as if the deed had contained a true description when it was made. The effect of tMs decree (if the court had jurisdiction of the subject-matter and the parties) was to insert in the deed what.the parties intended to put in it. But plaintiffs contend that the court was without any jurisdiction in the matter and therefore its decree was void and open to collateral attack in tMs case.

We cannot concur in that suggestion. The power to reform deeds and instruments otherwise valid, for mutual mistake in descriptions of the property, is a subject of inherent jurisdiction and peculiar remedy in equity. It extends to all cases where the parties are competent to contract. It does not embrace any case where the parties are incapable of contracting. [2 Pomeroy’s Eq. Rem., sec. 675 et seq.] Nor does it afford any remedy for a defective exercise of a statutory power, for that would in effect defeat the very policy of the positive law. [1 Story’s Eq. Jur. (13 Ed.), sec. 177.]

In the application of this principle to contracts of married women in states where their deeds must be executed according to statutory requirements, equity will not decree a reformation on account of the failure of the married woman to acknowledge the deed, or to do any other act prescribed by the statute, in order to qualify her to make the contract. For otherwise it would practically repeal the governing statute and require her to make a contract which she had not made. But. when none of these defects exist, and the contract has been executed by the married woman in a lawful manner, then the rule, according to Mr. Pomeroy, is thus expressed: “A mere mistaken description in her executed conveyance may, however, by the preponderance of authority, be corrected against her.” [6 Pom. Eq. Jur., sec. 681, p. 1147; Hamar v. Medsker, 60 Ind. l. c. 416; Herring v. Fitts, 43 Fla. 54; Stevens v. Holman, 112 Cal. 345; Christensen v. Hollingsworth, 6 Idaho, l. c. 91; Parish v. Camplin, 139 Ind. l. c. 10.] This is necessarily a sound principle of law, for it is nothing more than the stating that the valid contract of a married woman may be reformed in the same manner as the valid contract of any other person.

Plaintiffs cite Shroyer v. Nickell, 55 Mo. l. c. 267, and other cases following it, to show this court announced a legal doctrine not in harmony with the above rule. If this he conceded it only proves that this court did not give relief in certain cases in equity when it was granted hy others. It does not sustain the contention that courts of equity were without jurisdiction to hear and decide the matter. This very divergence of view implies that courts of. equity here and elsewhere, did then exercise the power to pass upon and to decide questions of correctability of the valid contracts of married women, although in so doing they acted according to different equitable standards. None of these cases denied the power of circuit courts sitting in chancery to entertain jurisdiction of the subject-matter of such causes. All that is said in any of the former ■decisions of this court is, that it was error on the part of the trial courts to construe the statutes then existing to justify the correction in the matter of description, of a married woman’s deed, although made and acknowledged in full conformity with all legal requirements on her part. It is wholly unnecessary at this late day to reconsider the rulings in Shroyer v. Nickell, supra, because they do not touch the vital question of jurisdiction of the subject-matter. The right of a married woman to contract, free from disability on account of that state, has been settled so long by statute and decisions, that the view expressed in Shroyer v. Nickell, relative to the propriety of correcting her valid contract for mutual mistake, has become the obsolete reflection of stage of society far in the rear of that in which we now live.

The crucial question in the case at bar, is not whether the decree correcting the married woman’s deed followed the ruling in Shroyer v. Nickell, supra, but whether the trial court in refusing to apply that ruling acted without any jurisdiction of the subject-matter and the parties or erroneously exercised a lawful jurisdiction? The failure to distinguish between ‘‘the erroneous exercise of jurisdiction” and “the want of jurisdiction” is a fruitful source of confusion and errancy of decision. In the first casé, the errors of the trial court can only he corrected hy appeal or writ of error. In the last case its judgments are void and may be assailed by indirect as well as direct attack. A court is possessed of jurisdiction when it is permitted by the policy of the law to hear and determine cases of the same nature as the one with respect to which the complaint is made, and where it has jurisdiction of the persons of the parties to the suit. The judgment of the trial court lacking either of those essentials is open to any form of attack. It follows that the judgment of a court of general jurisdiction with the parties before it and with power to grant or refuse relief in the case presented, though contrary to law as expressed in the decisions of the Supreme Court or the terms of a statute, is at most only an erroneous exercise of jurisdiction and as such is impregnable to an assault in a collateral proceeding.

' In the matter in hand, the trial court had jurisdiction in the statutory mode of the grantees in the deed with full power to determine the cause of action stated in the petition filed. That its decree correcting the description of the land was opposed to the ruling of this court in Shroyer.v. Nickell, supra, and* the case following it did not oust it from its rightful jurisdiction of the case presented, and its judgment, however erroneous, under the decisions of this court at that time, not having been appealed from or brought up for review by writ of error, is conclusive on the parties thereto and all persons in privity with them.

Plaintiffs in this case have no other or higher claim to relief than was had by their mother, and as her nonaction against the decree was a complete bar to her, it is equally so against them. We hold that the decree under the agreed statement of facts in this case, was not void nor open to attack below, and that it shut off any claim on the part of plaintiff for the land to which defendant acquired title through deed of their mother as corrected by said decree.

Estoppel IH. Another ground for reversing this judgment is that of estoppel. The basis of this defense appears that agreed statement of facts which plaintiffs offered as the ground of their right to recover. It is therefore available against them without being especially pleaded, as would be the rule if it was not a part of plaintiffs’ case.

The very decisions relied on by plaintiffs are to the effect that, whether the married woman’s deed was void for noncompliance with the authorizing statutes then in vogue, both she and her husband are debarred from recovering possession of the land delivered under such deed in an action of ejectment, without accounting to the grantees for the payment of purchase money and improvements after deducting rents. This is distinctly suggested in the last paragraph of McReynolds v. Grubb, 150 Mo. l. c. 365. To the same effect is Bagby v. Emberson, 79 Mo. l. c. 140, and Shroyer v. Nickell, 55 Mo. l. c. 270.

The present action is a mere substitute for ejectment because of the appropriation of the land for railway purposes by the acquiescence of Augustine Rivard after she and her husband had obtained the purchase money and delivered possession under their joint deed. [Scarritt v. The K. C. & So. Ry. Co., 127 Mo. 298; Alexander v. K C., Ft. S. & M. Ry. Co., 138 Mo. 464.] If they could not retake the land in ejectment without such accounting, clearly neither they nor their heirs, could take a second payment therefor by an alternative suit for its value, without making a similar accounting.

Upon the facts stipulated in this record there is no theory of law or equity which would warrant the judgment recovered by plaintiffs and it is reversed.

Graves and Walker, JJ., concur, Graves, J., in opinion filed in which Woodson and Walker, JJ., concur. Woodson. concurs in paragraphs two and three and in result. Brown and Baris, JJ., and Lamm, C. J., concur in result, Lamm, C. J., in opinion filed, in which Woodson, Graves and Walker, JJ., concur.