Alt v. Stoker

• Decision Date: 12 March 1895
• Parties: Alt, Plaintiff in Error, v. Stoker
• Court: Missouri Supreme Court

30 S.W. 132

127 Mo. 466

Alt, Plaintiff in Error, v. Stoker

Supreme Court of Missouri, First Division

March 12, 1895

Error to Cape Girardeau Court of Common Pleas. Hon. Maurice Cramer Judge.

Affirmed.

J. W Limbaugh for plaintiff in error.

(1) The land in question was legally sold by the commissioner at private sale. Prior v. Scott, 87 Mo. 303; Pool v. Brown, 98 Mo. 675. (2) The objection that the paper offered in evidence was not sealed is not well taken. G. S 1865, p. 444, sec 4; Pease v. Lawson, 33 Mo. 35; G. S. 1865, p. 398, sec. 5; R. S. 1889, sec. 2388. A seal consisting of a piece of paper attached by mucilage at the end of the signature has been held sufficient. Turner v. Field, 44 Mo. 382. See, also, Lunsford v. Lead Co., 54 Mo. 426; Burnett v. McCluey, 78 Mo. 676. (3) Impression on paper alone, without wax or other tenacious substance, has been held a valid seal. Allen v. Railroad, 32 N.H. 446; Pillow v. Roberts, 13 How. 472; Sprange v. Barnard, 2 Bro. C. C. 585; Reg. v. St. Paul, 7 Q. B. 232; Bradford v. Randoll, 5 Pick. (Mass.), 495; Hendee v. Pinkerton, 14 Allen (Mass.), 381. Use of the word "seal" in place of a seal has been held sufficient. 21 Am. and Eng. Encyclopedia of Law, p. 884 and note 2.

Wilson Cramer for defendant in error.

(1) The act undertaken by commissioner, John R. Henderson, was the execution of a statutory power under a statute identical with the statute of 1835. (R. S. 1835, p. 142, sec. 7), which was passed upon by this court in the case of Harley v. Ramsey, 49 Mo. 309. In that case the court says: "The unsealed writing was not such a conveyance as would pass the title. Ramsey acted as a public agent in the execution of a statutory power, and to render his acts as such operative it was necessary that he should have complied with the law." Harley v. Ramsey, 49 Mo. 309. (2) In the execution of the deed under consideration the commissioner uses neither seal nor scrawl. (3) The proper sealing of a deed was at that time just as essential to its effectiveness as the signing of the name of the grantor, and no one would contend for a moment that an unsigned deed conveyed title or could be introduced in evidence. (4) It is not claimed on behalf of plaintiff in error that the deed in question was sealed otherwise than under the seal of the county court. The acknowledgment can not supply the defect: First. Because the acknowledgment is no part of the deed, but simply the statutory admission of its execution. Second. Because the statute prescribes what the acknowledgment shall contain, and anything outside of this is mere surplusage. 1 Wag. Stat. 1872, p. 275, sec. 14.

OPINION

Macfarlane, J.

This is an action of ejectment for forty acres of land situate in Cape Girardeau county. The land is a portion of a body of swamp land donated by the United States to the state of Missouri and by the state conveyed to said county by patent dated November 4, 1871.

Plaintiff claims title under a deed by John R. Henderson, commissioner of said county, duly appointed and authorized to act by the county court. This deed, when offered in evidence, on objection by defendant, was excluded by the court, on the ground that it was not properly sealed. No objection is made to the sufficiency of the deed in other respects. The attesting clause of the deed is as follows:

"In witness whereof, the said county of Cape Girardeau, party of the first part herein, hath executed these presents by the said John R. Henderson, special agent and commissioner aforesaid under the hand of him, the said commissioner, under the seal of the county court of said county, attested by the clerk of said court, as and for the seal of the said county of Cape Girardeau in this behalf, the erasures on the eleventh and fourteenth pages of said deed being made before signing. Done at the town of Jackson, in said county of Cape Girardeau, the day and year first aforesaid.

"(Signed),

"County of Cape Girardeau,

CAPE GIRARDEAU

"By John R. Henderson, Special Agent and Commissioner.

COUNTY COURT

"Attest: Gabriel C. Pepper, Clerk of the County Court,

SEAL, MO.

Cape Girardeau, County, Mo."

This seal is to the left of, and just below the signature of the commissioner, and consists of a round, notched piece of green paper, of the style and size commonly used for that purpose, attached to the deed by mucilage or other tenacious substance, and upon which is impressed the seal of Cape Girardeau county, as aforesaid. The acknowledgment is as follows:

"Be it remembered that on this twenty-ninth day of March, A. D. 1875, at the county and state aforesaid, before the undersigned, clerk of the circuit court in and for said Cape Girardeau county, personally came John R. Henderson, who is to me, the undersigned, personally known to be the same person whose name is subscribed to the foregoing instrument as special agent and commissioner for said Cape Girardeau county, for and in behalf of said county, and the said John R. Henderson acknowledged the said conveyance to be the act and deed of the said county of Cape Girardeau as such special agent and commissioner thereof and acknowledged the seal of the county court of said county thereunto affixed and attested by the clerk of said court to be the seal of Cape Girardeau county, by him adopted and affixed, in this behalf for the purposes in said deed mentioned, and that the erasures in the eleventh and fourteenth pages were made before signing.

SEAL OF

"In witness whereof, I have hereunto set my

CIRCUIT COURT

hand and affixed the seal of said circuit

CAPE GIRARDEAU

court, at office in said county of Cape

COUNTY, MO.

Girardeau, the day and year last above

written.

"Nathan C. Harrison,

"Clerk Circuit Court, Cape Girardeau Co., Mo."

Section 6 of said act of the general assembly of Missouri, dated March 10, 1869, under which said land was patented to the county, provides: "The several county courts shall have full power and control over all such overflowed and swamp lands patented to their respective counties under the provisions of this act, and to sell and dispose of the same in like manner and with like effect as now provided by the general statutes in relation to the conveyance of other real estate belonging to their respective counties." Sess. Acts, 1869, sec. 6, p. 67; 2 R. S. 1879, sec. 6205.

The "general statutes," in relation to the sale by county courts of "other real estate belonging to their respective counties," was at that time as follows: "The county court may, by order, appoint a commissioner to sell and dispose of any real estate belonging to their county; and the deed of such commissioner, under his proper hand and seal, for and in behalf of such county, duly acknowledged and recorded, shall be sufficient to convey to the purchaser all the right, title, interest and estate which the county may then have in or to the premises so conveyed." Gen. Stat. 1865, p. 444, sec. 4; 1. R. S. 1879, sec. 671, p. 110.

As to the sufficiency of sealing instruments the statute provided: "Every instrument of writing expressed on the face thereof to be sealed, and to which the person executing the same shall affix a scrawl by way of seal, shall be deemed and adjudged to be sealed." 1 Wag. Stat. 269, sec. 5.

I. An objection was made to the sufficiency of the sale and deed, on the ground that the commissioner had no power to sell, at private sale, as was done in this instance. The point has been decided otherwise and we do not understand that defendant now insists upon it. Pool v. Brown, 98 Mo. 675, 11 S.W. 743.

II. The sole question, then, is whether the deed was properly signed and sealed by the commissioner, so as to make it effective to pass the title from the county. There was no statutory scrawl, by way of seal, but a common law seal would be sufficient. Pease v. Lawson, 33 Mo. 35....