Campbell v. Harsh

• Decision Date: 12 March 1912
• Docket Number: Case Number: 1073
• Citation: 1912 OK 165,122 P. 127,31 Okla. 436
• Parties: CAMPBELL v. HARSH.
• Court: Oklahoma Supreme Court

1912 OK 165

122 P. 127

31 Okla. 436

CAMPBELL v. HARSH.

Case Number: 1073

Supreme Court of Oklahoma

Decided: March 12, 1912

Syllabus

¶0 1. DEEDS--Attestation--Certificate of Acknowledgment. An officer's certificate of the grantor's acknowledgment of the execution of a deed filed for record is a sufficient compliance with a requirement of attestation by witnesses to the grantor's signature by mark.

2. VENDOR AND PURCHASER--"Perfect Title." A perfect title is one free from litigation, palpable defects, and grave doubts, and consists of both legal and equitable title fairly deducible of record.

3. SAME--Performance by Plaintiff. A purchaser under a contract to make a perfect title is not required to resort to evidence dehors the record. It is not sufficient that the title tendered is capable of being made good by the production of affidavits or other oral testimony. It must be good of record. And where specific performance is granted of a contract upon the tender of an abstract capable of being made good by the production of affidavits or other oral testimony only, held, that the purchaser should not have been required to accept such title, and that the court erred in granting specific performance.

Error from District Court, Kay County; W. M. Bowles, Judge.

Action by Thomas Campbell against L. C. Harsh. Judgment for defendant, and plaintiff brings error. Reversed, and remanded for new trial.

Everest. Smith & Campbell, for plaintiff in error.

A. W. Comstock and J. F. King, for defendant in error.

TURNER, C. J.

¶1 On June 28, 1907, Thomas Campbell, plaintiff in error, sued L. C. Harsh, defendant in error, in the district court of Kay county. The petition substantially states that on March 23, 1907, they entered into a certain contract in writing for the purchase by plaintiff from defendant of a certain tract of land situate in Noble county for $ 13,704, payable $ 500 cash, which was paid, the remainder to be paid "upon delivery of a deed conveying good sufficient title to said premises, accompanied by an abstract of title, showing perfect title"; that possession had never been delivered; that plaintiff had received no rents and profits; that on March 29, 1907, defendant submitted four abstracts, which were rejected on advice of plaintiff's attorneys; that the title was shown therein to be defective in certain particulars (naming them); that by reason thereof the title to said land was unsafe, and by reason of defendant's failure to comply with his contract plaintiff was entitled to and had demanded a return of the $ 500 aforesaid, and to a lien upon said land to secure a return thereof; and closed with a prayer to that effect. For answer, defendant admitted the execution of the contract and the payment of the $ 500, but denied the breaches, as alleged. He further denied that the title by abstract was defective, but alleged the same to be good, perfect, and indefeasible, and complied with the contract; that he is, and had always stood, ready, willing, and able to convey said lands to plaintiff with good title thereto as agreed, and thereby tendered plaintiff, attached thereto and a part thereof, a deed, together with said abstract and certain affidavits, and prayed that said title be by the court held perfect, and said deed to convey a good and perfect title; that plaintiff be required to accept same; and for specific performance of said contract, with judgment for the balance of the purchase money, etc. After demurrer to the answer filed and overruled, and reply thereto, there was trial to the court, and judgment for defendant as prayed. Plaintiff brings the case here.

¶2 After plaintiff had proved a prima facie case, assuming the burden of proof, defendant, in order to show a tender of such title as he agreed to make, introduced in support of his abstract of title to the lands, and as the basis of his title thereto, four certificates of trust or "patents" from the United States, in effect, that the allottee therein, an Indian residing on the Otoe reservation, had been allotted the lands therein described, to be held by the United States in trust for him, his heirs, etc., for 25 years, after which a patent was to issue therefor to him or his heirs in fee, discharged of said trust, etc. He then, for the purpose of establishing the first link in the chain of his title, introduced in evidence, over objection, deeds from Maude E. Pipestem, John Pipestem, Charles Six Bits Pipestem, Mary H. Coonskin, and Maude E. Pipestem, each deed being in usual form, reciting the grantor therein to be the heir or heirs of the allottee of the land therein conveyed, and acknowledged both before the Indian agent and a notary public, and approved by the Secretary of the Interior, and duly filed for record. The specific objection to the introduction of these deeds is that the separate deed of Maude E. Pipestem, dated September 15, 1903, to the S. E. 1/4 of section 21, township 22 N., range 2 E. of the I. M., being allotment No. 16, reciting her to be "daughter and sole heir of Missouri Chief, deceased, an Otoe Indian," the original allottee or patentee, and the deed of John Pipestem, Charles Six Bits Pipestem, and Mary Coonskin, of the same date, to the S.W. 1/4 of section 21, township 22 N., range 2 E., of the I. M., being allotment No. 54, reciting them to be "brothers and sisters, only heirs, of J. Roe Young, deceased, an Otoe Indian," the original patentee, and the deed of Maude Pipestem, dated January 15, 1906, to the N.E. 1/4 of section 21, township 22 N., range 2 E. of the I. M. reciting her to be "heir of Hilda Missouri Chief, deceased, an Otoe Indian," the original "patentee," and the deed of Charles Six Bits Pipestem, dated March 28, 1903, to the N.E. 1/4 of section 22, township 21 N., range 2 E. of the I. M., being allotment No. 117, reciting him to be "father and sole heir of Fannie Pipestem, deceased, an Otoe Indian," all subsequently filed for record, were signed by said several grantors by mark only and witnessed by two persons subscribing their names thereto as such.

¶3 In support of this objection it is urged that, as there was no evidence that either of the subscribing witnesses to any one of these deeds signed the name of any one of said several grantors thereto, none of said deeds were shown to have been properly executed, and were void. To this it is sufficient to say that, since said signing and witnessing is fair on its face, if it were necessary to uphold the validity of these deeds, it might be fairly presumed, since the law required it, that one of the subscribing witnesses did sign the name of the grantor. But it is unnecessary to indulge such presumption, for the reason that acknowledgment before the proper officer was, in effect, an adoption of the signature thus made by the grantor, which was all that was necessary.

¶4 In Watson v. Billings, 38 Ark. 278, 42 Am. Rep. 1, the governing statute is identical with the one in force here. (Comp. Laws 1909, sec. 2965). Both, in effect, provide that the mark of one who cannot write is not a signature or subscription, unless the person writing his name writes his own name as a witness to it. The instrument under construction there was a deed of release by a widow of her dower, and was signed by her with her mark only, and acknowledged before a justice of the peace in substantial compliance with the law, but was never filed for record. The court said:

"The Civil Code, in laying down rules of construction (Gantt's Digest, sec. 5625), provides 'that the word "signature," or "subscription" includes "marks" when the person cannot write, his name being written near it and witnessed by a person who writes his own name as a witness.' This was not necessary at common law to constitute a signature by mark. We can see obvious reason for the provision, however, in the thousands of uneducated persons, without experience in business or habits of preserving property, who had recently been clothed with all the rights of citizenship. Whilst the acknowledgment by the grantor, before a proper officer, and the filing for record to make it evidence, may, perhaps, be considered as an adoption of the written name as a signature, regardless of the mark, yet in the case of an instrument which had not been both acknowledged and filed, the mark should not be considered a signature, without the name of the person writing the grantor's name being also subscribed."

¶5 In Blair et al. v. Campbell et al. (Ky.) 45 S.W. 93, the court said:

"The deed in question was made June 25, 1856, and was from Francis Jackson Mann to D. C. Ferguson, as trustee, to be held by the trustee for the benefit of Mann and his wife, Elizabeth, for their lives, and, after their death, to the children of either or both as may be alive. This deed is signed by Mann with his mark, not attested by any witness, but was duly acknowledged July 8, 1856, before the county clerk of Grant county, and was duly recorded in Pendleton county in November, 1856. We are referred to no statute requiring signature by mark to be attested by a witness, and we are of opinion that this is not obligatory to the validity of an instrument. Yet it ought, as a matter of public safety in business transaction, to be done. However, in

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