Hubbard v. Swofford Brothers Dry Goods Co.

• Citation: 108 S.W. 15,209 Mo. 495
• Parties: HUBBARD et al., Appellants, v. SWOFFORD BROTHERS DRY GOODS COMPANY
• Decision Date: 26 February 1908
• Court: United States State Supreme Court of Missouri

108 S.W. 15

209 Mo. 495

HUBBARD et al., Appellants, v. SWOFFORD BROTHERS DRY GOODS COMPANY

Supreme Court of Missouri, First Division

February 26, 1908

Appeal from Cass Circuit Court. -- Hon. W. L. Jarrott, Judge.

Affirmed.

English & English for appellants.

(1) The deed should not have been admitted in evidence at all. It was a copy of the record. The proof of the inability to produce the original was insufficient. The record constituted no evidence because the acknowledgment was not authenticated under the seal of the City of Kansas. Laws 1853, Approved Feb. 22, 1853, sec. 6, art. 3. (2) The deed was ineffective because it did not purport to be Hubbard's deed at all and did not purport to be sealed with Hubbard's seal. The deed would be wholly void at common law as Hubbard's deed. Story on Agency, 147; 2 Kent, 631. The statute authorizing the use of a scroll as a seal (R. S. 1889, sec 2388), which had been in force long before the deed in question was dated, recognized the fact that private parties usually used the scroll, and required the instrument, when the scroll was used, to recite that it was under seal. When this recital is made, it will be presumed that the original was sealed even though the copy shows no seal. In this case the record shows no seal. The instrument recites that Summers' seal was affixed, but it contains no recital that Hubbard's seal was affixed nor does the copy purport to show Hubbard's seal. Jones, Real Prop. in Conv., sec 1075; Fowler v. Shearer, 7 Mass. 14; Elwell v Shaw, 16 Mass. 42; Clark v. Courtney, 5 Pet. 319.

Elijah Robinson and Ellis, Cook & Ellis for respondent.

(1) The failure of the mayor of Kansas City to insert in his certificate of acknowledgment the words "the City of" before the word "Kansas," was a mere clerical omission. This is made perfectly clear by the other recitals in the certificate. The certificate recites that it was given under the mayor's hand and official seal, and the presumption is that the official seal was affixed, although the (L. S.) does not appear on the certified copy of the deed. Jones on Real Property, sec. 1075; 25 Am. and Eng. Ency. Law, 78; Hammond v. Gordon, 93 Mo. 223; McCoy v. Cassidy, 96 Mo. 429; Macey v. Stark, 116 Mo. 481; Mitchner v. Holmes, 117 Mo. 185. (2) This deed having been of record since 1856, the certified copy thereof was admissible in evidence, regardless of the question as to whether the certificate of acknowledgment was defective. R. S. 1899, sec. 3119; Wilson v. Albert, 89 Mo. 537; Brown v. Oldham, 123 Mo. 621. (3) There can be no question but that it was the intention of Summers, in executing this deed, to act for Hubbard, and not for himself. He intended to convey Hubbard's title, as he was authorized to do by Hubbard's power of attorney to him, and not any title of his own. Hunter v. Miller, 6 B. Mon. 612; Webb v. Burke, 5 B. Mon. 54; Carter v. Doe, 21 Ala. 72; Magill v. Hinsdale, 6 Conn. 464; Distilling Co. v. Brant, 69 Ill. 658; Shanks v. Lancaster, 5 Gratt. 110; Martin v. Almond, 25 Mo. 313; Owen v. Switzer, 51 Mo. 322; Pease v. Iron Co., 49 Mo. 124; Turner v. Timberlake, 53 Mo. 371; Whitehead v. Reddick, 12 Ired. (N. C.) 95; Butterfield v. Beall, 3 Ind. 203. (4) The deed recited that it was executed under seal, and it will be presumed that the seal was affixed, notwithstanding no (L. S.) appeared on the certified copy of the deed. Jones on Real Property, sec. 1075; 25 Am. and Eng. Ency. Law, 28; Hammond v. Gordon, 93 Mo. 223; McCoy v. Cassidy, 96 Mo. 429; Macey v. Stark, 116 Mo. 481; Mitchner v. Holmes, 117 Mo. 185. (5) Plaintiff's action is barred by the ten-year Statute of Limitations. (a) The statute began to run in Hubbard's lifetime (when Trefren enclosed the lot and built the dwelling and outhouses thereon) and was not suspended by any disability on the part of his heirs or devisees. Rogers v. Brown, 61 Mo. 187; Cunningham v. Snow, 82 Mo. 587; Pin v. St. Louis, 122 Mo. 665. (b) A temporary vacancy of the dwelling house did not constitute a break in the continuity of the adverse possession. Crispen v. Hannavan, 50 Mo. 549; Fugate v. Pierce, 49 Mo. 441; Stettnische v. Lamb, 18 Neb. 617; Hughes v. Pickering, 35 Miss. 506; Hudgins v. Crow, 32 Ga. 367; Downing v. Mayes, 153 Ill. 330; De La Vega v. Butler, 47 Tex. 529; Patchin v. Stroud, 28 Vt. 394; Hunter v. Pinnell, 193 Mo. 142. (6) Even a verbal contract of sale of lands, the purchase money being paid and possession being taken by purchaser and representation of such sale made by the seller to a subsequent buyer, gives the latter good title enforceable in equity. Rice v. Bunce, 49 Mo. 231; Guffey v. O'Reilly, 88 Mo. 418; Raley v. Williams, 73 Mo. 310. (7) Hubbard's representations to H. H. King that he, Hubbard, had sold this lot to Wheeler, are presumed to have been relied upon by King as incident to King's purchase of the property. 2 Pom. Eq., sec. 895, p. 382; Kerr, Fraud and Mistake, 75; 1 Benj., Sales (Corbin's Ed.), p. 556 and note; Redgrave v. Hurd, L. R. 20 Ch. Div. 24; Fishback v. Miller, 15 Nev. 443; McClellan v. Scott, 24 Wis. 87.

English & English for appellants in reply.

The law required the deed to be under the seal of the grantor. The deed introduced does not purport to be under Hubbard's seal, nor does the certified copy of the record recite that it was under his seal. The only recital of the record is that it was under Summers' seal. Since it did not purport to be under Hubbard's seal, the deed could not be read in evidence. Walker v. Kirk, 8 Mo. 301; McCoy v. Cassidy, 96 Mo. 429; Macey v. Stark, 116 Mo. 481.

OPINION

VALLIANT, P. J.

Plaintiffs sue in ejectment for the possession of certain real estate in Kansas City. The trial resulted in a verdict for the plaintiffs which the court on defendant's motion set aside, and granted a new trial. From that order the plaintiffs have appealed.

Chester Hubbard, the father of the plaintiffs, was the common source of title. He lived in Kansas City from 1853 to 1857 when he moved to Iowa. While he lived in Kansas City he owned certain land in that city which he platted into city blocks and lots called Hubbard's Addition. The lot in controversy in this suit was in that addition. He died in 1861 in Iowa, leaving a will by which he devised all his estate, real and personal (without specifying any particular property), to his wife for life, remainder to his children. The widow died in 1899. The plaintiffs in this suit are the children of the testator and claim this land as remaindermen under that will.

The defendant claims title as follows:

September 16, 1856, Chester Hubbard and his wife executed a power of attorney to John W. Summers who, the evidence shows, was a justice of the peace in Kansas City, conferring on him plenary power to sell any or all real estate belonging to them in Jackson county. That document was duly acknowledged and was recorded October 16, 1856.

December 2, 1856, Summers executed a deed conveying the lot in suit to George B. Wheeler for $ 225 in cash. The main controversy in this suit turns on the effect of that deed. It is as follows:

"This indenture, made and entered into this second day of December, in the year of our Lord one thousand eight hundred and fifty-six, by and between J. W. Summers, as agent for Chester Hubbard and Mary Hubbard, his wife, of the county of Jackson, and State of Missouri, of the first part, and George B. Wheeler of the county and State aforesaid, of the second part.

"Witnesseth: That the said party of the first part for and in consideration of the sum of two hundred and twenty-five dollars to me in hand paid, the receipt whereof is hereby acknowledged, have given, granted, bargained and sold, and by these presents do give, grant, bargain and sell, alien, convey and confirm unto the said party of the second part, and to his heirs and assigns forever, a certain tract or parcel of land, lying and being in the county of Jackson, and State aforesaid; namely, a certain lot, piece or parcel of ground known in said Hubbard's Addition to the City of Kansas, as lot number twenty-seven (27), in block number six (6), said lot being sixty feet on Mary street and one hundred and forty-two feet from said Mary street to an alley, and being sixty feet on said alley.

"To have and to hold the said tract, piece or parcel of land with all the appurtenances thereto belonging or in any wise appertaining to the only proper use, benefit and behoof of him, the said party of the second part, and to his heirs and assigns forever; and the said party of the first part, for his heirs, executors and administrators, covenant and agree to and with said party of the second part, his heirs and assigns, the said tract, piece or parcel of land and bargained premises and every part and parcel thereof, unto him, the said party of the second part, and his heirs and assigns, against all manner of claims they will warrant and forever defend the same by these presents.

"In testimony whereof the said J. W. Summers, as agent for Chester Hubbard and Mary Hubbard, his wife, of the first part, has hereunto set his hand and seal this day and year above written.

"J. W. Summers,

"Atty. for Chester Hubbard."

Plaintiffs urge several objections to this deed, the first of which is that it does not purport to be the deed of Hubbard and wife but the personal deed of Summers.

One would have to yield his common sense interpretation of this deed to a very narrow technical interpretation of it in order to reach the conclusion that it was intended otherwise than as the deed of Hubbard and wife by their attorney in fact. When it was offered in evidence one of the objections interposed was that it was the deed of Summers and not that of Hubbard and wife and it was said that the words "agent and...