Allen v. King

• Decision Date: 31 October 1864
• Citation: 35 Mo. 216
• Parties: THOMAS ALLEN, Plaintiff in Error, v. ALMEIDA E. J. KING et als., Defendants in Error.
• Court: Missouri Supreme Court

35 Mo. 216

THOMAS ALLEN, Plaintiff in Error,

v.ALMEIDA E. J. KING et als., Defendants in Error.

Supreme Court of Missouri.

October Term, 1864.

Error to Jefferson Circuit Court.

M. Frissel and J. A. Beal, for plaintiff in error.

I. The confirmation to the legal representatives of Hardy Ware enured to the benefit of William Clark. The Supreme Court of this State held, in Landis v. Perkins, 12 Mo. 239, that the sale on execution of an unconfirmed claim to lands passed the title to the purchaser at the sale as assignee of the settler. (12 Mo. 239; 22 Mo. 55; 22 Mo. 66; 27 Mo. 445; 24 Mo. 585.)

II. Although the deed has not been recorded, yet the judicial sale acknowledged of record is sufficient notice of record, so as to deprive purchasers of the plea of innocent purchase. (10 How. U. S. 348.)

III. The acknowledgment of the sheriff's deed in open court, where the deed cannot be found, is sufficient evidence to prove title under sheriff's sale on execution. (9 Mo. 523; 25 Mo. 27; Newman v. Studley, 5 Mo. 291.)

IV. The acknowledgment by the sheriff in open court of the deed, is “a transaction confined to a set of officers,” and if not literally but substantially complied with, ought to be good to pass the title to bona fide purchasers. (12 Mo. 148.)

V. The description of the land in the deed of McNair to Clark is sufficient, and if somewhat vague, can be identified by parol evidence. (Bates v. Bank of Mo., 15 Mo. 309; 7 Mo. 531; 21 Mo. 127; 19 Mo. 583.)

VI. The deed of McNair should have gone in evidence for what it was worth. (19 Mo. 435.)

VII. It is not necessary for the sheriff's deed to recite the giving of notice of the sale by the sheriff. An omission of the sheriff to state in the deed to Clark, the manner of giving notice of the sale, does not vitiate the sale; at least in a collateral proceeding, the court would not declare the deed void but only voidable, even if no notice had been given. (Landis v. Perkins, 12 Mo. 238; Draper v. Bryson, 17 Mo. 71; 20 Mo. 447; 20 Mo. 450; 9 Mo. 713; 16 Mo. 68.)

VIII. By the construction of the effect of records and judicial proceedings, sales and decrees of the Common Law Courts of England, those records are muniments of title by which many persons at common law hold their lands, and impart notice to all purchasers. The judgment of Beeler v. Smirl is a record of which all subsequent purchasers are bound to take notice, and also the execution in that case returned and on file, and the acknowledgment by McNair of the deed to Clark, on record in open court, is a part of the record imparting notice of sale of the lands to Clark. Kent, in his Commentaries, lays it down that “by analogy to the case of registry acts, it is settled that a purchaser of land is bound by notice of the judgment, though not docketed. (4 Kent, 179; 2 Hill, Rl. Est. 431.)

Pipkin & Thomas, for defendants in error.

The sheriff's deed offered in evidence was properly excluded, because:

I. It was not properly acknowledged according to the laws in force in 1811; no endorsement was made upon this deed. It was the duty of the clerk to endorse upon every deed acknowledged by any sheriff a certificate of such acknowledgment under the seal of the court, and to enter on the minutes a description of the land sold, the purchase money, and the names of the parties to the suit. All of these requisites were not complied with in this case. (1 T. L. 121, § 47.) The sheriff's deed to Clark conveyed no title. The conveyance of land under execution by a sheriff is a statutory power, and the statute must be pursued, otherwise the conveyance cannot pass title. (27 Mo. 364.) A sheriff's deed not under seal does not convey title; courts of equity will not, by their decrees, carry into effect the incomplete execution of statutory powers. (18 Mo. 530; Bright v. Boyd, 1 Sto. 486.) A court of equity cannot dispense with any of the formalities required by statute in the execution of a power. (1 Sto. 487; 1 Id. Eq. § 177; 1 Madd. 35; 2 Met., Ky., 595.) This acknowledgment was made by an agent (the sheriff) under an authority conferred by the Legislature, and that authority must be strictly pursued; any departure from the requirements of the statute renders the act done absolutely void (2 Met., Ky., 595.)

II. The acknowledgment offered in evidence, even if it had been endorsed on the deed, was too informal and insufficient to pass the title. It does not state who acknowledged the deed, nor does it give the name of the plaintiff in the execution, which of itself renders the acknowledgment void. (1 T. L. p. 121, § 47.) The clerk of the Circuit Court in 1863 endorses this acknowledgment upon the deed offered in evidence. How can this court tell whether that is an acknowledgment of this deed? Clark could have had the sheriff and clerk at the time to complete the acknowledgment. (Tanner v. Stine, 18 Mo. 587.)

III. Neither the sheriff's deed, notice of sale, nor return of the execution, show how many notices were set up, nor how long before the day of sale. The deed merely says the sheriff advertised the land “agreeably to law;” the sheriff being a ministerial officer cannot determine what is “agreeable to law.” He must execute in the right form, or no consideration ever so meritorious will avail. (2 Chance on Pow. § 2987; Sug. on Pow. 370; Zouch v. Walston, 2 Burr. 1146; Earl of Darlington v. Pulteney, Cow. 266.) In cases of defective execution of powers, we are carefully to distinguish between powers created by private parties and those created by statute. The latter are construed with more strictness, and whatever formalities are required by the statute must be punctually complied with, otherwise the defect cannot be helped in equity. (3 Meriv. 332; 1 Sto. Eq. § 96; Ex parte Bulteel, 2 Cox, 243; Duke of Bolton v. Williams, 2 Ves. Jr. 138; Curtis v. Perry, 6 Ves. 739, 745; Mestiar v. Gillespie, 3 Meriv. 321; Thompson v. Leake, 1 Madd. 39; Thompson v. Smith, 1 Id. 395.) The annuity act of 17 George III., C. 26, required every memorial of an annuity to contain the deed, &c., by which the annuity was granted, and if it did not it was void. (Duke of Bolton v. Williams, 2 Ves. Jr. 154; 2 Tenn. C. B. 12.) Under the ship registry Act of 1834, Geo. III., C. 68, § 16, a certain endorsement was required to be made on the certificate within ten days. Held, in a case where this was omitted, that a court of equity could not remedy the defect and the certificate was void. (11 Ves. 625; 6 Ves. 745; 3 Tenn. 406; 1 Mo. 382; R. S. 1835, p. 123, § 30.) This deed not having been recorded until after the sale by Moss and wife to King, cannot avail against King or those claiming under him. The acknowledgment not having been endorsed on the deed until 1863, and not having been recorded at all with the deed in Jefferson county, will not affect Mrs. King, who bought the land in controversy for $1300 in 1856. (22 Mo. 415; 23 Id. 126.)

IV. The deed of Hardy Ware to Clark & Brinley, dated in 1815, cannot avail because plaintiff does not attempt to show any contract by Ware to convey said land existing prior to the confirmation of 1812. This confirmation was made in 1812 to the legal representatives of Hardy Ware; and this court held, when the case of Allen v. Moss was before this court, that Ware had no interest in 1815 in the land, and that his deed would convey no title, unless Allen could show a contract on the part of Ware to convey this land existing prior to 1812. (27 Mo. 364.)

V. This deed of 1815 was not recorded until 1843, and cannot affect King, who bought without notice in 1843.

BATES, Judge, delivered the opinion of the court.

This was an action instituted by plaintiff in error against 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 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,...