Allen v. King

Bates, Judge,

delivered the opinion of the court.

This was an action instituted by plaintiff in error against *221 defendants in error, for the recovery of the south half of the United States survey No. 2020, originally confirmed to Hardy Ware’s legal representatives. The case was submitted to the court without a jury. On the trial, the plaintiff in error read in evidence the confirmation of the land in controversy to Hardy Ware’s legal representatives, dated Nov. 12,1812 : Deed from Hardy Ware to John Brinley, dated the-day of October, 1805 ; deed from Brinley to James Smirl, dated the-day of October, 1805; copy of deed from Hardy Ware to John Brinley and William Clark, dated the-day of-1815. This last deed was never filed for record nor recorded till 1846. It was here admitted by defendants that there were regular conveyances from Brinley & Clark down to Thomas Allen, plaintiff in error. Plaintiff then offered in evidence a deed purporting to be executed by Alexander McNair, sheriff of the district of St. Louis, dated the 7th day of March, 1812, which deed is in words and figures as follows:

“ To all to whom these presents shall come, greeting: Whereas, a certain writ of execution on the 13th day of October, 1811, issued from the office of the clerk of the Court of Common Pleas for the district of St. Louis and territory of Louisiana, in favor of John C. Beeler, against the goods, chattels, lands and tenements of James Smirl, to the sheriff of the district of St. Louis, and to the said sheriff of the same district delivered, a copy of which said execution is hereunto annexed and makes a part and parcel of this deed, by virtue of which said writ, I, the said sheriff, did, on the 13th day of October, 1811, levy upon and seize all the right, title, interest and property which the said James Smirl had or possessed in and to a certain tract of land situated in the district of St. Louis, south-west of the river Merimac and the waters thereof, said to contain seven hundred and forty acres of land, be the same more or less, which will more fully appear by a certificate, a plat of survey recorded in Book B, page 352, of the recorder’s office of titles and claims *222 to land, &c., and said to be the same land which was owned by John Brinley, who was assignee of Hardy Ware; and the same being advertised agreeably to law, the advertisement bearing the 13th day of October, 1811, and was on Tuesday, the 5th day of November, 1811, being the second day of the Court of Common Pleas for said district, and whilst the said court was in session, at the courthouse door, exposed to public sale to satisfy the writ of execution aforesaid, and William Clark was the last and highest bidder for the sum of one hundred and twenty-five dollars. Now, therefore, know ye, that I, Alexander McNair, sheriff of the district of St. Louis, for and in consideration of one hundred and twenty-five dollars to me in hand paid by the said William Clark, Esq., the receipt whereof I do hereby acknowledge, and by. virtue of authority in me vested by law, I do hereby give, transfer, sell and assign to him the said William Clark, Esq., all the right, title, interest and property of him the said James Smirl, in and to the aforesaid premises; to have and to hold the said granted and assigned premises and appurtenances to him the said William Clark, his heirs and assigns forever. In testimony whereof, I, Alexander McNair, sheriff as aforesaid, have hereunto set my hand and seal at the town of St. Louis, this 7th day of March, 1814. [seal.] Alexander McNair, sheriff. Signed, sealed and delivered in presence of John C. Sullivan and 0. S. Hempstead.”

Then comes the execution in due form for $352.40, returnable to the 4th day of November, 1811; then the advertisement attached to this deed, advertising said lands for sale on the 5th of November, 1811. On the back of said execution there appeared the following return: “ Keceived this execution July 31st, 1811. A. W. McNair, sheriff.” Also, “ Made on this execution from sale of land and corn, as will appear from the advertisement here annexed, two hundred and twenty-one dollars, and also the costs of the execution, and my fees on the collection sum of execution and travel. A. W. McNair, sheriff St. Louis Dis.” Also, “ Eeceived of *223 James Smirl, ninety-eight dollars and eighteen cents, being the balance of this execution. (Signed,) A. W. McNair, sheriff.” Also, “ Received the balance. E. Hempstead.”

Plaintiff also read in connection with said sheriff’s deed, the deposition of C. S. Hempstead, who- swore that A. W. McNair’s name to said deed was genuine, and that he (the affiant) signed said deed as a witness thereto, at the request of McNair. This deposition was taken October 11, 1856. The plaintiff also read in connection with this deed the following entry, which appears among the proceedings of the St. Louis Court of Common Pleas, on the 9th of March, Í812 :

“Alexander McNair, sheriff, to William Clark. A deed this day acknowledged in open court for a certain tract of land situate in the district of St. Louis, south-west of the river Merimac and the waters thereof, said to contain seven hundred and forty acres of land, more or less, and said to be the said land which was owned by John Brinley who was as-signee of Hardy Ware, the same land sold by said sheriff, as the property of James Smirl, for the sum of one hundred and twenty-five dollars.”

This acknowledgment was never endorsed upon said deed until the 15th day of December, 1863, when the clerk of the St. Louis Circuit Court endorsed it.

The plaintiff read in evidence a judgment in fkvor of Beeler v. James Smirl, for $320 and costs, dated the 3d day of July, 1811. The deed of the sheriff to Clark was never recorded until the 16th day of April, 1846. Plaintiff then admitted that Eliza Moss and Mrs. Burgess were the only heirs of James Smirl, deceased; that Burgess and wife in 1843, in consideration of one thousand dollars, sold their interest in the land in controversy to Thomas Moss, the husband of Eliza Moss ; that Thomas Moss and wife, by their deed, in consideration of two hundred dollars, expressed in the deed, conveyed the south half of said survey to John B. King; said deed was dated the-day of--, 1843, and duly recorded during that year; that John B. King, for an expressed consideration of seven hundred dol *224 lars, sold said land to Tlieo. Maria Palmer, by deed dated the -day of-, 1846, which was also duly recorded ; that Tlieo. Maria Palmer, for a consideration of thirteen hundred dollars, conveyed to A. E. J. King said land by deed, dated the-day of-, 1856, which was duly recorded. The plaintiff in his petition charged that these deeds of Moss to King, &c., were all without any money consideration, but no evidence whatever was offered to support such charge; but the deeds went before the court expressing the various considerations as above unimpeached.

The court upon this state of the evidence declared the law as follows :

1. The land having been confirmed to Hardy Ware’s legal representatives in 1812, and Hardy Ware having sold to Clark and Brinley in 1805 ; and there being no evidence of any contract on the part of Hardy Ware to convey said land existing before said confirmation, the deed of Hardy Ware to Clark and Brinley is inoperative and conveys no interest.

2. Even if the deed of Ware, in 1815, was effectual to convey any interest in the land to the grantees, still such deed, not having been recorded until 1846, is void as against Mrs. King, who derived title through Moss and wife in 1843, without notice of said deed of 1815.

3. The sheriff’s deed dated the-day of March, 1812, not being acknowledged according to law, is inoperative and void, and does not divest Smirl of the title to said land.

4. Even if the sheriff’s deed is valid to convey the interest of Smirl, still, not having been recorded till 1846, it is void as against King.

5. The judgment should be for defendants.

Judgment was then duly entered for defendants. The plaintiff then moved for a review and a new trial, which being overruled, he brings the case to this court by writ of error.

1. It was settled in the case of Allen v. Moss. 27 Mo. 354 , that the deed from Hardy Ware to Brinley and Clark, of 1815, did not constitute them the representatives of Ware, so *225 that the confirmation would enure to their benefit; and consequently Allen, who claims under them, acquired no title by virtue of that deed.

2. In that case the sheriff’s deed to Clark was held to be ineffectual to transfer to him any interest in the land.

In this case an attempt has been made to cure that defect, by showing an entry on the minutes of the court made about five months after the date of the deed, and which is copied in full in the statement, and also an endorsement on the deed of the acknowledgment, which endorsement was made by the clerk of the St. Louis Circuit Court on the 15th day of December, 1863. The statute in force at the time (T. L. p. 120-1) required the sheriff to “ give the buyer a deed duly executed and acknowledged in court,” which would be effectual to pass title to the purchaser, and required the clerk “ to endorse upon every deed acknowledged by any sheriff a certificate of such acknowledgment and under the seal of the court, and to enter in the minutes a description of the lands and tenements sold, the purchase money, and the names of the parties to the suit.”

It is very easy to understand what the statute intended that the sheriff and clerk should each do, but it is not quite so easy to determine what omissions by either of them affect the validity of the deed as a conveyance. To be effectual, the deed must have been acknowledged in court, and the best evidence of that fact would be the certificate of the fact endorsed upon the deed itself, as the law required; and this is wholly wanting. (It is merely absurd to suppose that another clerk of another court, after the lapse of fifty years, could certify the acknowledgment.)

Admitting for the present (but not so deciding) that the fact of the acknowledgment in the court can be established by showing the entry on the minutes, which the law required the clerk to make, yet the entry here shown does not comply with the requirements of the law. Passing over other more doubtful objections to it, it is sufficient to say that it does not give “ the names of the parties to the suit,” and it *226 cannot be said that anything is immaterial which the law positively requires. And, indeed, were it permitted to reason upon the sufficiency of that minute as evidence of the acknowledgment of the deed, it might well be maintained that the deed then acknowledged is not identified with that now produced in court. A defective entry or no entry might not invalidate the deed; but when the entry is produced as evidence of the fact of acknowledgment, it must appear to be such as the statute required. . .

The Circuit Court therefore did not err in declaring that the deed was not acknowledged in court,, and that it was inoperative to pass the title of Smirk

Judgment affirmed.

Judges Bay and Dryden concur.