Owen v. Baker

• Citation: 14 S.W. 175,101 Mo. 407
• Parties: Owen, Plaintiff in Error, v. Baker
• Decision Date: 16 June 1890
• Court: United States State Supreme Court of Missouri

14 S.W. 175

101 Mo. 407

Owen, Plaintiff in Error, v. Baker

Supreme Court of Missouri

June 16, 1890

Error to Bates Circuit Court. -- Hon. D. A. DeArmond, Judge.

This is an action of ejectment for a tract of land in Bates county.

The petition is in usual form; the answer, a general denial. It was mutually conceded that defendant was in possession at the beginning of this action, and James Sullivan the common source of title.

After evidence of the rental value of the land plaintiff offered a sheriff's deed which the court excluded. This led to plaintiff's taking a nonsuit with leave. Thereupon plaintiff sued out this writ of error after the proper motions for review had been disposed of and exceptions saved in the circuit court.

The sufficiency of the conveyance mentioned is the only question presented. It reads as follows: "This indenture made and entered into this twenty-first day of November, eighteen hundred and forty-two, between William P. Burney, sheriff of Van Buren county, in the state of Missouri, of the first part, and William R. Owen, of the county of Henry and state of Missouri, of the other part, witnesseth that, whereas, on the seventh day of October, 1842, a certain writ of execution did issue formal out of the circuit court of Van Buren county in the state of Missouri, to the sheriff of Van Buren county directed, reciting that, whereas, on the twenty-second day of March, in the year of our Lord 1842, at our Van Buren circuit court, William R. Owen hath recovered against James Sullivan William Sullivan and Mason Sullivan the sum of seventy-five dollars and forty-seven cents for his debts, and also for his costs. The sheriff was, therefore, commanded that of the goods and chattels and real estate of the said defendant he cause to be made the debt and cost aforesaid, and that he certify how he executed the said writ, and whereas, the said sheriff on the tenth day of October eighteen hundred and forty-two, in pursuance of the command therein contained, the said sheriff levied the same upon the lands of James Sullivan and of the said defendants lying and being in the county of Van Buren, to-wit: The southwest quarter of the southeast quarter of section twenty-three, township forty-one, range twenty-nine.

"And whereas, the said sheriff did afterwards proceed to give at least twenty days' notice by six hand bills put up in public places in different parts of the county of Van Buren containing a description of the lands to be sold and the time and place of the sale, and whereas in pursuance of said notice the said sheriff did on the first day of the November term of Van Buren circuit court, 1842, between the hours of nine o'clock in the forenoon and five o'clock in the afternoon, offer for sale by public auction for ready money at the court-house door in the town of Harrisonville in Van Buren county the said land of the said James Sullivan, one of said defendants, to the highest bidder, William R. Owen became the purchaser, for the sum of thirty-five dollars, it being the highest and best sum bid for the same. Now therefore, I, the said William P. Burney, sheriff of Van Buren county aforesaid, for and in consideration of the sum of thirty-five dollars to me in hand paid, the receipt whereof is hereby acknowledged, do hereby and by these presents convey unto the said William R. Owen the lands aforesaid, and all the right, title and interest which the said James Sullivan had in and to said land, on the twenty-first day of November, 1842, to have and to hold the land aforesaid, unto him, the aforesaid William R. Owen, and his heirs and assigns forever, in as full and absolute a manner as I, the said William P. Burney, sheriff of Van Buren county aforesaid, could or ought to do. In testimony whereof I, the said William P. Burney, sheriff of Van Buren county as aforesaid, have hereunto set my hand and seal the day and year aforesaid.

"[Seal.] William P. Burney,

"Sheriff of Van Buren county."

"State of Missouri,)

"County of Van Buren.)

ss.

"Be it remembered that on the seventh day of October, in the year of our Lord, 1843, personally appeared in open court William P. Burney, sheriff of Van Buren county, who is personally known to the court here to be the person whose name is subscribed to the within and foregoing deed as a party thereto, and acknowledged the said deed to be his act and deed for the purposes therein mentioned. In testimony whereof I have hereunto set my hand and the seal of said court at office at Harrisonville, this eleventh day of October of A. D. 1843. James C. Jackson,

"Recorder.

"Note -- The foregoing instrument of writing was delivered to me for record on the seventh day of October, A. D. 1843, and by me duly recorded this thirty-first day of October, 1843.

"James C. Jackson,

"Recorder."

Reversed and remanded.

John T. Smith and James B. Gantt for plaintiff in error.

(1) The only matters for the consideration of the court are the objections made to the sheriff's deed offered in evidence. The objections of the defendant to the introduction of the deed are of two classes. The first applies to alleged irregularities in the body of the deed; the second to the sufficiency of the certificate of acknowledgment. The objections of the first class, which are more technical than serious, are fully disposed of in the following cases: Jackson v. Jones, 9 Cowen, 182; Jackson v. Streeter, 5 Cowen, 529. (2) The objections to the sufficiency of the certificate are not specific, and should not have been considered by the court; but, waiving that matter, we submit that the court in this case should presume that the open court, in which the sheriff acknowledged said deed as is shown in the certificate, was the circuit court, and the seal affixed to said certificate was that of the circuit court. Long v. Mining & Smelting Co., 68 Mo. 431; Hammond v. Gordon, 93 Mo. 223; McCoy v. Cassidy, 96 Mo. 429. (3) The officer's failure to state his official character in his certificate is not fatal. Carpenter v. Dexter, 8 Wallace (U. S.) 513; Shultz v. Moore, 1 McLean (U. S.) 520; Bennett v. Paine, 7 Watts, 334; Scott v. Galliger, 11 S. & R. (Pa.) 347. (4) In ascertaining the court before whom the deed was acknowledged and the officer who certified it, the body of the deed itself may be referred to. Brooks v. Chaplin, 3 Vermont, 281; 23 Am. Dec. 508. Or part of the certificate itself, such as the caption, the seal, etc. Sidwell v. Birney, 69 Mo. 144; Robidoux v. Casselegi, 10 Mo.App. 516.

P. H. Holcomb for defendant in error.

Plaintiff's title rested wholly on the sheriff's deed to him purporting to have been made November 21, 1842, and acknowledged October 7, 1843. This deed was properly excluded from evidence, because: First. It recites a judgment rendered against three persons, James, William and Mason Sullivan; and the execution is directed to be levied against "said defendant," not designating which, nor is either of the Sullivans designated as "defendant" in the judgment recited in the deed. The execution, as recited, fails to show upon whose property it is to be levied. This is necessary. Douglass v. Whiting, 28 Ill. 362; Freeman on Executions, secs. 42, 329, 334. What the execution should contain. R. S. 1840; Executions, secs. 2 and 5. What this deed should recite. R. S. 1840, sec. 45; Wilhite v. Wilhite, 53 Mo. 71. It is not necessary to cite authorities that the recitals of a sheriff's deed are prima facie true. Second. The sheriff's deed is void because not acknowledged as the statute required. R. S. 1840, Executions, secs. 46 and 47. The statutes of 1845, relating to executions and sheriff's deeds, are substantially the same as the statutes of 1840, under which the deed in question was made. So far as the execution and acknowledgment of the deed is concerned the statutes have remained the same up to the present time. A sheriff's deed if defectively acknowledged conveys no title. Ryan v. Carr, 46 Mo. 483; Adams v. Buchanan, 49 Mo. 64; McClure v. McClurg, 53 Mo. 173. Third. The deed affirmatively limits the title conveyed to plaintiff to be the interest that Sullivan had in the land on November 21, 1842. Then the deed...