Bagby v. Emberson

• Citation: 79 Mo. 139
• Parties: BAGBY v. EMBERSON et al., Plaintiffs in Error.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

79 Mo. 139

BAGBY

v.EMBERSON et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1883.

Error to Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

Sam'l P. Sparks for plaintiffs in error.

John J. Cockrell for defendant in error.

MARTIN, C.

This is a suit to divest title. Lucy Ann Emberson, wife of Robert Emberson, being seized of the land in controversy, on the 28th day of November, 1865, joined with her husband in the execution of a deed for it to the plaintiff. The consideration of the conveyance was $1,200, which was paid by plaintiff, who entered into possession of the land and has held it ever since. The acknowledgment of the deed by Mrs. Emberson as certified by the notary was imperfect in failing to state that the grantors mentioned in the certificate were the same persons whose names were subscribed to the deed as parties thereto; and in failing to state that Mrs. Emberson was made acquainted with the contents of the deed, and that she acknowledged on an examination separate and apart from her husband that she executed the deed freely and without compulsion or undue influence of her husband. The imperfection of this certificate left the instrument without validity, either as a deed or contract of the wife, who owned the legal title. In the present suit the plaintiff, after reciting these facts and alleging that the imperfection of the certificate was caused by a mistake or clerical omission of the officer taking the acknowledgment, prays to have the title divested from the heirs and the husband of Mrs. Emberson, who are the defendants in the case, and vested in himself. The court, after finding these facts as alleged in the petition, rendered a decree divesting the defendants of all title, and vesting the same in plaintiff. It is to this judgment the defendants prosecute this writ of error.

The decree was erroneous. The instrument being absoutely void either as a deed or contract, no equitable title could pass to the plaintiff, upon which to base a decree giving him the legal title. The equity to be administered upon a deed entirely void can never be an equity for the title, except, perhaps, under circumstances of estoppel. Such a relief would be in contradiction of the facts, and would be equivalent to enforcing a contract which is admitted to have no existence.

The equity administered in this class of cases has never gone any further than to decree an account between the parties with the view of returning them to the...