Muldrow v. Robison

Napton, Judge,

delivered the opinion of the court.

This was an action of ejectment to recover a quarter section of land in Shelby county.

On the trial the plaintiff read in evidence a patent for the land in controversy, from the U. S. to Wm. Muldrow, dated Nov. 2, 1837, and a deed from Wm. Muldrow to himself, dated Oct. 4, 1872, and proved the possession of the defendant.-

The defendant then read in evidence a deed to the same land from M. L. Gray and wife to himself, dated August 12, 1872. The defendant then offered to read a deed from Wm. Muldrow, by John Muldrow, his attorney in fact, to M. L. Gray, dated 19 June, 1850. The certificate of acknowledgment on said deed was made by the clerk of the Circuit Court of Marion county. This certificate was in the usual form,and contained the additional statement that “said John Muldrow was not only known to the officer to be the person who executed the deed, but also as the agent and attorney in fact of Wm. Muldrow, by virtue of a power of attorney, duly recorded in his office, and who acknowledged that lie executed and delivered the foregoing instrument of writing, and declared it to be his act and deed, as the attorney in fact of Wm. Muldrow.” This acknowledgment was dated also on the 19th of June, 1850.

There was also a certificate of acknowledgment of the wife of Wm. Muldrow, taken on the 12th of July, 1850, which is in due form and certified to by the same officer, the clerk of Marion county, at his office in Palmyra. This deed, thus acknowledged, was filed on the 17th of July, 1850, in the re *339 corder’s office of Shelb}7 county, and tbe following is the certificate of the clerk: State of Mo., County of Shelby, ss. I, William H. Yamort, clerk of the Circuit Court, and ex officio recorder, within and for the county of Shelby, aforesaid, hereby certify that the foregoing deed, together with the two certificates thereon; was received and filed for record on the 17th day of July, 1850, and that they have been duly recorded in my office in book E, for recording conveyances, etc., at pages 497, 498. Witness my hand, &c.”

The defendant then offered in evidence an instrument purporting to be a certified copy from the records of Marion county, of a power of attorney from Wm. Muldrow together with the indorsements and certificates thereon which being-objected to as secondary evidence, the court sustained the objection and excluded it, unless the absence of the original was accounted for, and unless there was evidence to shoy possession in the grantee, Gray, for more than ten years before this suit was brought, and proof was made that Wm. Muldrow, on the 23d of Feb., 1849, (the date of power of attorney) owned lands in the county of Marion, on which the instrument could operate.

Thereupon, the defendant read the deposition of M. L. Gray, his grantor, who stated that he had at all times since June, 1850, until his conveyance to defendant, claimed the land in dispute, under said instrument and the deed of Wm. Muldrow by John Muldrow, his attorney in fact; that he had caused the premises to-be assessed to him and through his agents had paid the taxes from 1854 to 1871; that he had employed one Knox to keep off trespassers up to 1866, and afterwards Mi-. Hale.

Defendant also produced and read in evidence the tax receipts, admitted to be genuine, signed by the collector of Shelby county, showing the payment of taxes by Mr. Gray, as stated.

The agent, Hale, was then introduced as a witness, who stated that lie had searched for the original power of attorney; that he ascertained that John Muldrow had been dead *340 many years, and one George Mnldrow was liis administrator; that he applied to said Geo. Mnldrow, and at his request Geo. Mnldrow and witness searched among the papers of the estate for said power of attorney, but it could not be found ; that the witness then applied to the recorder of deeds of Marion county, and also of Nalls county, and their offices were searched by said recorders and by witnesses, without success, and witness had applied to various other persons, but failed to find this paper.

The defendant then introduced the plaintiff as a witness, who stated that he was the son of Win. Mnldrow; that in February, 1819, his father lived in Philadelphia, a town or village in Marion county, in a brick house ; had been in possession of the house and lot several years, also cultivated lands in the vicinity which he claimed to own, and also claimed title to some timbered land in the neighborhood, from which he got his firewood, and claimed several other tracts of land in Marion county.

This witness further stated, that, in March or April 1872, he was at the defendant’s house, whose farm adjoins the premises in dispute ; that on that occasion defendant told the witness that the tract in dispute belonged to Mr. Gray of St. Louis; that his father conveyed the said tract to himself in Oct. of that year in satisfaction of a debt due witness for money loaned. Witness further stated, that at the time the deed was made to him he did not know that the tract described in it was the same land that the defendant had told him belonged to Mr. Gray; he discovered this afterwards. Witness further stated, that when he bought the land from his father, he had not examined the title of the land, and did not know that Mr. Gray or any one else claimed it. All this testimony was objected to, and exceptions duly taken to its admission.

The court then admitted the copy of the power of attorney and the certificate thereon to be read in evidence. The power of attorney is in the usual form, authorizing John Mnldrow, as his — William’s—attorney in fact, do grant, bargain and sell any of his lands in the State of Missouri. The *341 acknowledgment and certificate are also in the usual form, made by the clerk of the Circuit Court of Marion county, and dated 23d Feb., 1849.

This was all the evidence in the case, and thereupon the plaintiff asked the following instructions: 1. Unless the power of attorney from Via. Muldrow to John Muldrow, by virtue of which Juo. Muldrow executed the deed to Melvin L. Cray, was recorded in Shelby conuty, a deed made pursuant to said power of attorney cannot avail against the plaintiff, unless plaintiff, at the time of his purchase, had actual notice of the existence of such power of attorney. 2. The patent and deed of Wm. Muldrow to plaintiff, vested title in plaintiff, and the deeds read in evidence by defendant are not sufficient in law to show title in defendant to the premises in dispute. 3. The facts of the payment of taxes-on the land, and that defendant went on the land and cut out a fence row on the south side of the laud, and put up afence, under his deed from Gray, cannot amount to notice to plaintiff, unless a knowledge of such facts came to plaintiff prior to the execution of the deed to him from ¥m. Muldrow. 4. The certified copy from the records of Marion county of the power of attorney from ¥m. Muldrow to John Muldrow, purporting to be from the recorder’s office in Marion county, Missouri, is no evidence of the previous existence of an executed original. 5. The facts stated by the witness (plaintiff) introduced by defendant, do not constitute such notice to plaintiff of the execution by ¥m. Muldrow to John Muldrow of the alleged power of attorney, an alleged copy of which has been read in evidence, nor of the execution by ¥m. Muldrow of the deed to Gray, as to prevent the plaintiff’s recovery in this action. 6. The instrument read in evidence by the defendant, purporting to be a copy from the record in Marion conuty of an instrument purporting to be a power of attorney executed by William Muldrow to John Muldrow, is not legal or competent testimony in this cause, and ought not to be considered in determining the question whether William Muldrow- executed the deed read in evidence to M. L. Gray. 7. Although *342 the court, sitting as a jury, may believe from the evidence in this ease, that plaintiff, prior to his purchase of the land in controversy from ¥m. Mnldrow, casually inquired of a person, whom he met, as to the ownership of a certain tract of land then in view, and was informed by said person that said tract of land belonged to Gray fan d althongh the court may believe that the person to -whom such inquiry was addressed was the defendant, Bobison, and that the tract of land concerning which such inquiry Avas made and such information given, was the laud in controversy in this suit; yet if the court should further belieA'e from the evidence, that at the time of purchasing the land in controversy, plaintiff did not know and had no reason to believe that the land thus purchased, and in the deed to him described, was the tract of land formerly pointed out to him by defendant as belonging to Gray, and did not know that any person other than Wm. Muldrow claimed to oivn said land, then the facts above set out do not constitute actual notice, or any notice to plaintiff of the alleged power of attorney from Wm. Muldrow to John Muldrow, or of the alleged deed of Wm. Muldrow by John MuldroAV to Gray.

The above instructions were all refused, but the court gave the following instructions for the plaintiff: “1. The patent from the TJ. S. to Wm. Mnldrow and the deed to W. C. Muldrow, the plaintiff, are prima facie, in the absence of other testimony, sufficient, to establish the plaintiff’s right to the land in the petition described. 2. Although the court may be of opinion that the deeds read in evidence by defendant show in defendant a fee simple title to the premises in dispute, yet if it appears from the evidence that plaintiff, in October, 1872, purchased said premises from Wm. MuldroAV for a valuable consideration, and recorded his deed therefor, defendant is estopped from setting up his title to said premises, as against plaintiff, unless it further appear that plaintiff, at the time of his purchase, had actual notice of the claim of defendant and his grantor to said premises.

*343 4. “ There is no evidence in the cause tending to prove that defendant or those under whom he claims had any actual possession of the premises in dispute prior to Aug., 1872, and the issue on the statute of limitations should be found for plaintiff. 5. No conveyance of the land in controversy by Wm. Muldrow, prior to his conveyance of said land to Wm. C. Mnldrow (plaintiff), is valid against the plaintiff, unless plaintiff had actual notice of such prior conveyance, or the same had been properly recorded.”

The court gave for the defendant the following instruction : “The deeds read in evidence by the defendant, show the title to the premises in the defendant, and if it appears from the evidence that plaintiff at the time he purchased and accepted his deed, had actual notice of the claim of title by defendant or his grantor, M. L. Gray, to the premises, the plaintiff is not entitled to recover.”

The court found the issue for defendant. The usual motions for a new trial were made and overruled, and the case was brought here by appeal. ■

It will appear from the above statement in which the instructions given and refused have been copied as explanatory of the points decided, and all the material testimony admitted has been also stated, almost in the language of the bill of exceptions, that the case mainly depended on the admissibility of the copy of the power of attorney, and on the question of actual or constructive notice.

The court below manifestly held ; first, that the copy of the record in Marion county was admissible; second, that there was no constructive notice, and third, that there was actual notice. And the propriety of these conclusions we will proceed to consider.

The admissibility of the record copy of the power of attorney, from the records of the Marion Co. Recorder’s office, is defended on two grounds, first, that the 30th section of our statute concerning conveyances, etc., authorized its admission, upon the proof therein required, and next, that it was admissible under the 40th section of our statute concerning evidence.

*344 The 30th section of the act concerning conveyances (1 Wagri. Sfcat., 278) must be read, in connection with the 29th, and both have reference to the five sections immediately preceding.

The 29th section provides, that “every instrument in writing, conveying or affecting real estate, which shall be acknowledged or proved and certified, as hereinbefore prescribed, may, together with the certificate of acknowledgment, or proof of relinquishment, be read in evidence without further proof.”

The 30th section provides, that “where any such instrument is acknowledged or proved, certified and recorded, in the manner herein prescribed, and it shall be shown to the court, by the oath or affidavit of the party wishing to' use the same, or of any one knowing the fact, that such instrument is lost, or not witliiu the power of the party wishing to use the same, the record thereof, certified by the recorder under the seal of his office, may be read in evidence without further proof.”

The 31st section provides that the evidence shall only be prima:faoie and the other party is allowed to rebut it.

It is clear that the 29th and 30th sections refer not only to deeds, but to any other instrument of writing affecting real estate, and that a power of attorney is regarded as such an instrument is manifest from the 27th and 28th sections which require such instruments to be recorded, and declare that their revocation must be established in the same manner. But these provisions all require powers of attorney to be .proved, certified and recorded as other instruments of writing, conveying or affecting real estate, are-required to be recorded.

The 2±th section shows how this is to be done : it provides, that “every instrument in writing that conveys any real estate, or whereby any real estate may be affected in law or equity, proved or acknowledged and certified in the manner hereinbefore prescribed, shall be recorded in the office of the •recorder of tlie county, in which such real estate is situated.” *345 Conceding that the 29th and, consequently, the 30th sections embrace both deeds and powers of attorney, as we think they do, still the right to use the record in evidence under the circumstances named in the 30th section belongs only to cases where the deed or instrument has been recorded in pursuance of the previous provisions, and that is, in the county where the laud supposed or sought to be affected by it is situated ; and although the 30th section seems to have no bearing on the question of implied notice, and seems designed merely to authorize a specified kind of secondary evidence to be used in certain contingencies, and embraces as well sucli instruments as powers of attorney (provided they relate to laud) as actual conveyances, yet the power of attorney' from ¥m. Muldrow to John Muldrow, being recorded in the county of Marion, and not in the county of Shelby where the laud now in controversy was, is hardly within the purview of this action, as it was not recorded according to the anterior provisions of the act. „

The 40th section of the act concerning evidence, like the 30th section in the law of conveyances, seems designed to provide a species of secondary evidence, and has no reference to -the question of notice. Indeed it may be observed that those two statutes have mingled together in rather a confused way, various provisions adopted at intervals, some of which apply both to notice and secondary evidence, and others to the latter only. The 40th section evidently refers to the latter only, but is more general and comprehensive in its terms than the 30th section of the law concerning conveyances, and provides for the use of secondary evidence under other contingencies than those mentioned in the former. It provides that “whenever the records in the recorder’s office of deeds of any county shall contain a record of any writing, instrument or deed, purporting to affect any real estate or any right or interest in orto the same, and such real estate, right or interest in or to the same shall have been claimed or enjoyed by any person, by or through such writing, instrument or deed, for a period of ten consecutive years, sucli writing, instrument or *346 deed and a certified copy thereof and of the time of its record, shall be, prima facie evidence of the execution of such writing, instrument or deed, and of its genuineness and time of record, provided the said record shall have been made at least ten years next before such writing, instrument or deed, or certified copy thereof, is offered in evidence.”

Now it is insisted that the words in this section, “writing, instrument or deed purporting to affect any real estate, or any right or interest in the same,” do not include letters of attorney, or any instrument containing a mere power to convey or otherwise affect real estate, because the 24th section of the conveyance act uses terms equally broad and comprehensive with the terms used in the 40th section ; and yet the 27th and 28th sections were deemed necessary to provide separately and expressly for letters of attorney. And this separation of the two classes of instruments, one conveying and the other giving a mere power to convey, has continued from the revision of 1825, down to the present time, as an examination of these various revisions will undoubtedly show.

But when we recur to the act of 1825, (Rev. Code of 1825, p. 222,) we find that after the particular enumeration of grants, bargains, sales, leases, releases, mortgages, defeasances, covenants, conveyances, bonds, etc., in section 14, and a definite provision for powers or letters of attorney in section 15, the 16th section, like the 29th, 30th, 31st and 32nd sections of the revision of 1865, embraces both conveyances and letters of attorney, since it is therein declared, that “every deed,'conveyance or other writing of or concerning any lands, tenements or hereditaments, which by virtue Of this act shall be required or entitled to be recorded as aforesaid, being acknowledged or proved, according to the provisions of this act, whether the same be recorded or not, may be read in evidence without any further proof of the execution thereof, and if it shall appear to the satisfaction of the court that the original deed so acknowledged is lost, etc.,” then the record copy is allowed.

*347 It is clear that this section included letters of attorney, giving authority to convey lands, since it applies to all instruments which by that act were authorized to be recorded, aud. letters of attorney were not only authorized, but required to be recorded ; and this same provision contained in the 16th section of the acts of 1825, is virtually embodied in the 15th, 16th, 17th and 18th sections of the revision of 1855, (p. 365) and is in substance repeated in the 29th, 30th, 31st and 32nd sections of the present law. Not one of these provisions had any reference to notice, from the revision of 1825 down to the present. But it is plain that they embraced letters of attorney, as well as instruments conveying title.

When we come to the 58th section of the code of 1855, (p. 733) which is the first introduction of the provisions of section 10 in the revision of' 1865 into the statute book, we find another provision in regard to secondary evidence, in a class of eases not provided for in the 30th section of the conveyancingact. It manifestly comprehends, as did the former, both letters of attorney giving authority to convey and conveyances themselves.

Considering this proposition clear, that the 10th section embraces both classes of writings referred to,- the question still remains, whether each class of instruments must not have been recorded in the mode prescribed in the 30th section of the act concerning conveyances, in other words, whether it applies to instruments not recorded in the county where the land affected by it is situated.

So far as conveyances or powers of attorney to convey land in one county alone are concerned, there is no difficulty presented by this question, as it is manifest, that where a conveyance, or power of attorney to authorize it, is recorded only in a county where the land is not situated, it is not recorded according to law, and is mere waste paper. But in regard to a power of attorney, such as the present, which authorized the attorney to convey the grantor’s lands lying in any county in the State, it might properly be recorded in any county where he had lands to be conveyed; and as the proof shows that *348 fin. Muldrow had various tracts of laud in Marion county, the power of attorney was properly recorded there.

The subject of notice is provided for in other sections of the act concerning conveyances.

In regard to deeds conveying land or letters of attorney accompanying them, the declaration of this section, that the record shall be prima facie proof of the original, and of its genuineness and of its time of record, was, most likely, merely for the purpose of showing that it had been recorded more than ten years before it was offered in evidence. The only object of the section was to provide a way of letting in secondary evidence of the deed.

"When once admitted in evidence, the 2oth section of the act concerning conveyances provides when it shall impart notice.

"Whether this section 40 was designed to make this power of attorney, properly recorded as it was in Marion county, notice of a deed executed under it to a tract of land in Shelby county, is a question which may be promptly answered in the negative. Such a construction would conflict with the general intent of all our recording acts. But it still remains to be determined, whether this record of a power of attorney in Marion county, properly and legally placed on record there, may not be used under this provision in the statute concerning evidence, as secondary proof of the original, just as the original, if in existence, could have been used.

There is no doubt that- the. defendant could have used the original power of attorney, without which his recorded deed showed no title, but that power of attorney and deed would have been no more evidence against the plaintiff, than if the grantee had put both of them in his pocket on the day of their delivery, and kept them there for the twenty years intervening before the execution of the second deed to plaintiff, so far as implied notice is concerned.

But the deed and power of attorney would show title in the defendant’s grantee at its date, and would be valid as between him and the grantor to him, and all others who might *349 purchase with actual notice. And secondary proof of this letter of attorney might have been made upon common law principles of evidence, without regard to any of the provisions of our statutes referred to; and it is strange that so plain and undisputed a mode of proof was not resorted to in this case, where the certifícate of the clerk of Marion shows that he took the acknowledgment of this instrument, was acquainted with the parties to it, and of course could readily have sworn to its contents literally.

But this section 40 was doubtless supposed to be designed to supersede the necessity of resorting to sworn testimony of the contents of an instrument, where there had been a claim for ten consecutive years, and where the record was made more than ten years before it was offered in evidence. Like section 30 of the conveyancing act, which had the same purpose in case of a lost instrument, this section provided for secondary evidence of an instrument which may not be lost, but where the claim under it has lasted ten consecutive years and the record is also more than ten years old, at the date of the trial.

The common law rules of evidence have an elasticity which enables courts somewhat to adapt them to the peculiar circumstances of a ease, but in regard to the positive provisions of a statute, the courts have no'such power to go beyond the words, or the equity of the words, to apply them to cases unprovided for.

We are unable to see any distinction between the 40th section of the law of evidence and the 30th section of the law of conveyances, so far as the subject matter is concerned on which those sections are to operate. They both embrace deeds and letters of attorney, and all other writings affecting-real estate. The same rule that applies to one applies to the other. The general tenor and purport of all our recording-acts is to require a paper which affects lands to be recorded in the county where that land lies. If recorded elsewhere, it amounts to nothing so far as that land is concerned. We cannot make one rule for a deed and another for a power of *350 attorney, upon which that deed is based. The statutes nowhere make such discrimination, and the courts cannot legislate on the subject.

It is with reluctance we have reached this conclusion, because the case is a peculiar one, and we could see no good reason why the statute should not have provided for such a case. It is sufficient, however, for us to say, that the legislature, so far as we can see, have not done so.

The conclusion is, therefore, that the court erred in allowing the record of a power of attorney in Marion county to go in evidence to support a deed for land in Shelby county. In regard to the finding of the court on the question of actual notice, we see no reason for departing from that finding.

The question of actual notice is a question of fact, and as was decided by this court in Beattie vs. Butler ( 21 Mo., 328 ), is to be determined like any other fact. “Actual notice” observes Judge Scott, in that case, “does not require positive and certain knowledge, such as seeing the deed, but that is sufficient notice, if it be such as men usually act upon in the ordinary affairs of life.” And Judge Leonard observed in Vaughn vs. Tracy ( 22 Mo., 418 ), “Now, as it is a rule not only of morals, but of public policy, that every one should use his own property and conduct his own affairs with proper prudence, so as not to hurt his neighbor, and that those who should fail to do so ought to answer for any damage they might occasion, the courts hold that the equitable ownership should prevail, not only against a purchaser with actual notice, but also against one who bought under such circumstances as would have afforded him notice, had he used proper care in making the purchase. And this distinction was thus made in English equity between actual and implied notice.” And the conclusion of Judge Leonard was, that “ the actual notice, the fact to be proved, is the matter prescribed by the statute; the competency of the evidence is another thing, to be settled by the courts, according lo the ordinary rules of evidence, and the sufficiency of the evidence to establish the fact, is yet another question, which is submitted to the jury, and must be passed upon by them.”

*351 And in a late case, (Speck vs. Riggin, 40 Mo., 405 .) Judge Wagner says, “notice may be either actual or constructive. It is actual when the purchaser either knows of the existence of the adverse claim or title, or is conscious of having the means of knowing, although he may not use them.”

Now in this case the evidence shows that the plaintiff, when visiting the defendant, and pointing out the land he subsequently bought, and which he claims in this action, was told by the defendant that this identical land belonged to Mr. Gray of St. Louis. But the plaintiff explains this, and attempts to destroy this proof of actual notice, by saying that he did not know when he bought the land, that it was the same land pointed out to him as Gray’s, and that he never examined the title papers or records.

Now, who is to take the risk "of buying land, under such circumstances, the man who buys a tract.of land, not knowing where it is, or to whom it belongs, whose deeds were duly recorded — though not so recorded as to impart constructive notice — or the subsequent purchaser?

It will be observed that the deed to this land from Wm. Muldrow to Gray was duly recorded in Shelby county, and the certificate of its acknowledgment also duly recorded, and that the certificate referred to a power of attorney, acknowledged before the clerk of Marion county, who made the certificate, and who declared that said power of attorney was duly executed and acknowledged before him and was recorded in his office.

The records of Shelby county are amply sufficient to put such purchaser on inquiry, and that he did not make any, was his own fault, and the record of the power of attorney in Marion county, though not admissible to prove the execution, as heretofore decided, was undoubtedly evidence on the question of notice, as well as the records of Shelby county. Though neither amounted to constructive notice, nor came within the provisions of our statute concerning secondary evidence, yet each was properly recorded, and legally recorded, in the two counties, and each was entitled to be read on the question of notice in fact.

*352 There wits also evidence of possession taken by defendant some months before plaintiff bought, and the construction of fences around the tract, but this was also unknown to the plaintiff, as lie states, and there was no proof to the contrary.

Upon the whole there is no ground for reversing the judgment, because of the finding of the court sitting as a jury on the question of actual notice.

That was a question'd fact, on which the evidence tended very strongly to show that the plaintiff was in possession of such facts and circumstances as would have required a man of ordinary prudence to examine the records, and if he chose not to do so, it was his own fault, and his purchase was made at his own risk.

But as the power of attorney was essential to show title in the defendant, and there was no legal proof of it, the judgment must be reversed and the case remanded.