Baker v. Underwood

• Citation: 63 Mo. 384
• Parties: LEVIN H. BAKER, et al., Plaintiffs in Error, v. JOSEPH UNDERWOOD, Defendant in Error.
• Decision Date: 31 October 1876
• Court: United States State Supreme Court of Missouri

63 Mo. 384

LEVIN H. BAKER, et al., Plaintiffs in Error,

v.JOSEPH UNDERWOOD, Defendant in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Carroll County Circuit Court.

Jno. L. Mirick, for Plaintiffs in Error, cited Kennerly vs. Shepley, 15 Mo. 640; Keene vs. Barnes, 29 Mo. 337; 1 Greenl. Ev. p. 89; Laughlin vs. Stone, 5 Mo. 45.

Hale & Eads, with L. H. Waters, for Defendant in Error.

I. By analogy to State law regulating acknowledgments of sheriffs' deeds, the marshal's deed should have been acknowledged before the circuit court of the county in which the real estate was situated. (R. C. 1825, p. 369, § 21.) If it should be held that the acknowledgment is regulated by the general law in regard to conveyances, then the certificate should state that the person acknowledging the deed was personally known to the court or officer taking the acknowledgment. (R. C. 1825, p. 218, § 10.)

II. The executions under which said real estate was sold by said marshal, were illegal and unauthorized. They were general executions against the goods, chattels, lands and tenements of William Stokes.NAPTON, Judge, delivered the opinion of the court.

This is an action of ejectment to recover the northwest quarter of the southeast quarter of section 22, T. 50, R. 21.

The titles of the plaintiff and defendant were based on the conceded title of Wm. Stokes in 1822, by patents from the United States. The land was military bounty land.

The plaintiffs, who are heirs of Peter Lindell, claim the land by virtue of a sale by the United States marshal for the district of Missouri, under a judgment of the district court against John O'Fallon, executor of Stokes, and an execution and a deed from said marshal in 1825.

The defendants claim under a regular chain of title from Ann Carson, only daughter and heir of Wm. Stokes, originating in 1846.

Consequently, the only question in the case was, whether the marshal's deed in 1825, or rather, the record of it, was properly admitted in evidence as against the defendants, who were conceded to be bona fide purchasers for value, and without any other notice than the records imported.

This deed and the executions referred to in it, and the advertisement for sale, are recorded in the records of the United States district court.

The acknowledgment of the deed was on the 8th of September, 1825. The records of that date state that Henry Dodge, United States marshal, personally appeared in the district court, and acknowledged the execution of the deed from him as marshal, to Peter Lindell. The records of Ray county show that the deed was filed for record in that county, and duly recorded in 1828.

The clerk of the Carroll county court certifies that this record is duly recorded in the office of the recorder of deeds, and taken from the Ray county records. It was conceded that the land in dispute was in 1825 in Ray county, now in Carroll county.

The deed from Dodge, marshal, recites two writs of execution, returnable to the September Term of the district court in 1825, copies of which are annexed to the deed (as recited in it), and made a part and parcel of it; and further states that he levied on and seized “all the right, title and claim, interest, estate and property of him, the said William Stokes, deceased,” to certain lands, including this now in dispute, and advertised as the law directs (stating the particulars), which advertisement is also made a part of the deed; and in pursuance of said execution and advertisement, he did, on the 7th of September, 1825, at the court house door, in the city of St. Louis, during the sitting of the district court, sell the land, or rather, all the right, title and interest of Wm. Stokes, or that appertaining to his estate, in the land advertised, to Peter Lindell, the highest bidder. He therefore transfers and assigns to Peter Lindell, etc., this interest. This deed is signed and sealed, 9th of September, 1825.

The executions command the marshal, that of the goods and chattels, lands and tenements of the said Wm. Stokes, deceased, at the time of his death in the hands of his executor, to be administered, he cause to be made the damages and costs recited in the judgments.

The advertisement recites, that by virtue of two executions issuing from the district court of Missouri, the marshal would sell at the court house door to the highest bidder, on the 7th day of September, between the hours of 9 and 5, all the right, title and interest of Stokes in certain lands, of which the land, now in dispute, was a part, etc. The record of the district court recites, that on the 8th of September, 1825, Henry Dodge, marshal of said district, personally appeared in the district court and acknowledged the execution of this deed. The records of Ray county show that this deed was recorded there on the 18th of September, 1828. The certificate of the recorder of Carroll county (taken from Ray county) is produced, and also of the now clerk of the district court of the United States.

The judgment roll of the district court is then produced, showing the proceedings and final judgment in the cases on which executions against O'Fallon, executor of Stokes, issued.

The title of the defendant depended on a deed from the daughter and heir of Stokes in 1845, which is conceded to have been for value and properly executed and recorded. So that the only question in the case is as to the admission of the marshal's deed in 1825, and its effect as giving notice to the purchaser from the heirs of Stokes, in 1845.

It will be perceived by an examination of the cases of Kennerly vs. Shepley (15 Mo. 640), and Keene vs. Barnes (29 Mo. 377), that the value of such deeds was somewhat discussed, but that the precise question presented here was not determined. In the former case the deed was lost and had never been recorded, and the controversy was between the creditors of...