Caldwell v. Head

• Decision Date: 31 March 1853
• Citation: 17 Mo. 561
• Parties: CALDWELL, Respondent, v. HEAD et al., Appellants.
• Court: Missouri Supreme Court

17 Mo. 561

CALDWELL, Respondent,

v.HEAD et al., Appellants.

Supreme Court of Missouri.

March Term, 1853.

1. A deed is valid, as against the grantor and his heirs, although not acknowledged or proved and recorded. After the death of the grantor in an unacknowledged deed, without a subscribing witness, the grantee cannot maintain a bill against his heirs for a title.

2. A court cannot, by its decree, compel the registry of a deed which the statute does not authorize to be registered.

3. If the grantee apprehends future difficulty in proving the execution, he may perpetuate the testimony.

Appeal from Perry Circuit Court.

M. Frissell, for appellant. The court erroneously took jurisdiction of the cause. The only relief the plaintiff could obtain was under the act concerning the perpetuation of testimony. Admitting that the decree was for the right party, the costs should have been adjudged against the plaintiff, for the reason that the proceedings were not instituted on account of any default of the defendant. 1 Madd. Ch. Pr. 185, 6, 7, 8, 9. The finding of the court that the deed had been delivered, is not warranted by the testimony.

John W. Noell, for respondent. 1. There was ample proof of the execution and delivery of the deed. 2. There being no subscribing witnesses to the deed, it must be established by the decree of a court of equity, before it is competent to pass the legal title and be admitted to record. R. C. 1845, p. 222-3, secs. 22, 24; p. 793, sec. 1. A deed without any subscribing witness has been decided in Michigan to be good in equity as a contract for the sale of lands under a statute similar to our own. Godfrey v. Disbrow, Walker's Ch. Rep. 260.

SCOTT, Judge, delivered the opinion of the court.

This was a proceeding by the respondent, Caldwell, against the heirs and widow of John Logan, in order to divest the title of certain real estate and pass it to the respondent; or, that a deed already made for the said estate be established, and that proof of the execution thereof be received for record, and that the same be recorded.

It appears that Logan signed and sealed a deed conveying the estate, but failed to acknowledge it, so that it could not be recorded. The deed was dated in January, 1849, and was without a subscribing witness.

1. This proceeding seems to be founded on a misconception of the law as to the requisites essential to the validity of a conveyance of lands. It has never been deemed requisite, in this state, that a deed, in order to be effectual between the parties thereto, should be acknowledged or proved and recorded. The fifteenth section of the act concerning conveyances prescribes, that every conveyance in fee or of a freehold estate, shall be subscribed and sealed by the person from whom the estate or interest conveyed is...