Lewis v. Curry

• Decision Date: 31 October 1881
• Citation: 74 Mo. 49
• Parties: LEWIS v. CURRY, Appellant.
• Court: Missouri Supreme Court

74 Mo. 49

LEWIS

v.CURRY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

On the 5th day of October, 1865, defendant Curry mortgaged the premises in controversy, situated in Worth county, to plaintiffs Geo. W. Lewis and Samuel A. Richardson. The mortgage debt not being paid, plaintiffs instituted a suit for foreclosure, and on the 13th day of November, 1875, obtained a decree, on which execution was issued, and under this execution the mortgaged premises were sold on the 24th day of April, 1876, plaintiffs becoming the purchasers. In pursuance of this sale they received a deed from the sheriff of Worth county. This deed was acknowledged on the 27th day of April, 1876, before the circuit court of said county, the plaintiff Samuel A. Richardson being at the time judge presiding over said court. Defendant refusing to deliver possession, plaintiffs, on the 5th day of April, 1877, brought this action of ejectment. The petition was in the usual form, and alleged that plaintiffs were entitled to the possession of the premises on the 1st day of March, 1876, and were dispossessed on the day following. Defendant claimed the premises under the Homestead Act. Plaintiffs had judgment and defendant appealed.

Johnston & Jackson for appellant.

1. The court erred in admitting the sheriff's deed because the same was executed after the demise laid in the petition, and because the deed was acknowledged before the plaintiff Richardson; a grantee cannot take and certify the acknowledgment of a deed to himself. Buxton v. Carter, 11 Mo. 481; 8 Pet. 214, Coxe v. Joiner, 3 Bibb 297; Wood v. Grundy,3 Har. & John. 13; Tyler on Eject., 383; Stevens v. Hampton, 46 Mo. 404.

2. The prime object of the legislature, in enacting the homestead law, was to protect the wife and family against the improvidence of its head, and the law should be so construed as to accomplish that object. Vogler v. Montgomery, 54 Mo. 583; Cox v. Wilder, 2 Dill. C. C. 46. For this reason it is necessary to hold that the husband has no power to mortgage the homestead without the wife's concurrence.

3. The court erred in finding for plaintiffs on the mortgage given in evidence, because it was merged into a judgment of foreclosure and constituted no more a subsisting title on which ejectment could be maintained until sale and deed; and then the sheriff's deed would constitute the title upon which the right to the possession would depend; for the mortgagees might not be the purchasers and until it was ascertained who would receive the sheriff's deed it could not be determined who would be entitled to maintain the action. Davenport v. Turpin, 43 Cal. 597; Freeman on Judg., §§ 215, 216; Butler v. Miller, 1 N. Y. 496; s. c., 1 Den. 407. The mortgage being merged, and the sheriff's deed being adjudged insufficient to authorize a recovery by plaintiffs, there was nothing left on which to base the judgment. The mortgage having performed its office and been merged, was functus officio, and the relation of plaintiffs to defendant Curry was that of judgment creditors with special lien, and under our statute, a general lien over. 2 Wag. Stat., § 9, chap. 99. Such relation will not authorize the recovery, in ejectment, of the land to which such special lien attaches.

Edwards & Ramsay for respondents.

The mortgage did not require Mrs. Curry's signature to make it valid. In every state where the courts have held the wife's signature essential, they have done so by virtue of some express statutory or constitutional provision. Stewart v. Mackey, 16 Tex. 56; Jarboe v. Colvin, 4 Bush (Ky.) 70; Gee v. Moore, 14 Cal. 472; Davis v. Andrews, 30 Vt. 678; Guiod v. Guiod, 14 Cal. 507; Brennan v. Wallace, 25 Cal. 108; McQuade v. Whaley, 31 Cal. 526; Phillips v. Springfield, 39 Ill. 83; Getzler v. Saroni, 18 Ill. 511; Titman v. Moore, 43 Ill. 170; Williams v. Swetland, 10 Iowa 51; Larson v. Reynolds, 13 Iowa 579; Code of Iowa, 1851, § 1247; Revision 1860 and Revision 1873, § 1990; Ib., 2279; Hoyt v. Howe, 3 Wis. 752; Phelps v. Rooney, 9 Wis, 70; Platto v. Cady, 12 Wis. 461.

I.

SHERWOOD, C. J.

In order to make a valid mortgage of the homestead, it was not necessary, as the law stood at the time that the mortgage was made, (1 Wag. Stat., 697, § 1,) that the wife should join therein. For this reason the mortgage must be adjudged valid, and that it passed whatever of homestead right, if any, which defendant possessed.

II.

It is unnecessary to discuss the point whether the mortgage was merged in the judgment of foreclosure or not. There was a judgment of foreclosure; this is admitted, and if such admission had not been made, the deed of the sheriff established the fact; and the recitals of the deed are prima facie true. 1 Wag. Stat., p. 612, § 54; McCormick v. Fitzmorris, 39 Mo. 24. And the section just cited is broad enough to cover all sales under execution--sales under judgments of foreclosure, as well as ordinary execution sales.

III.

There is no objection to the sheriff's deed because of its acknowledgment, either as to form or substance. The acknowledgment was not taken before the Hon. Samuel A. Richardson, one of the grantees in the deed, but it was taken before the court over which Judge Richardson presided. McClure v. McClurg, 53 Mo. 173. As the deed had to be...