City of Kansas v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1882
• Citation: 77 Mo. 180
• Parties: THE CITY OF KANSAS v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

77 Mo. 180

THE CITY OF KANSAS

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

AFFIRMED.

Geo. W. Easley for appellant.

D. S. Twitchell and C. E. Small for respondent.

NORTON, J.

This suit was brought by the City of Kansas to enforce a lien for taxes on certain lots and blocks of ground in said city for the years 1867, 1868, 1869, 1873, 1874, 1875, 1876 and 1877. All the parties defendant, of whom there were several, made default, except the Hannibal & St. Joseph Railroad Company, and it filed an answer containing a general denial of the allegations of the petition, and also setting up the statute of limitations in bar of plaintiff's right to recover the taxes for the years 1867, 1868 and 1869.

So much of the answer as set up the limitation act was stricken out on plaintiff's motion, to which defendant excepted. In order to avoid further reference to the action of the court in this respect, it may be observed that a determination of the question, whether said defense was or not properly stricken out, is dispensed with, inasmuch as the court found for defendant as to the taxes for the years 1867, 1868 and 1869.

On the trial plaintiff had judgment for the enforcement of its lien for taxes, interest and costs for all the other years mentioned in the petition. From this judgment defendant corporation has appealed, and the chief grounds alleged in the motion for a new trial are, that the court erred in admitting evidence and in refusing instructions asked by defendant.

1. RECORD OF DEED: seal of officer.

During the trial plaintiff offered in evidence the record of a quit-claim deed dated June 23rd, 1877, from James F. Joy and wife conveying to defendant all of blocks Nos. 20, 21 and 34, except fifty feet wide off the west side of block 20 on the river front in Kansas City, Jackson county, Missouri. The record of this deed, as well as another conveying certain other lots in Kansas City to defendant, was objected to on the sole ground that the notary's certificate of acknowledgment was not, and did not purport to be, attested by his notarial seal or any seal whatever. The court did not err in overruling this objection. It has been expressly held by this court that when the notary attaches to his certificate his notarial seal it is not necessary that the testimonium clause of the certificate should show that the seal was affixed, or that it should be stated in the body of the certificate that it was executed under the seal of the notary. It has also been held that all a recorder is required to do in recording a deed having the official seal of a notary attached to his certificate is to make some proper entry on the record indicating the place or situation of the seal--such for instance as [[SEAL] or [L. S.]; Dale v. Wright, 57 Mo. 110; Clark v. Rynex, 53 Mo. 380; Gray v. Kansas City, 61 Mo. 378; Parkinson v. Caplinger, 65 Mo. 290. The copy of the record of the deeds offered in evidence and objected to showed that the notarial seal was affixed to his certificate by the usual way of indicating seals--thus [L. S.]

2. CORPORATE DEED: form of signature: seal: acknowledgment.

The plaintiff also offered in evidence the record of a deed from the West Kansas Land Company by Solomon Houck, President, and Theo. S. Case, Secretary, to James F. Joy, dated October 27th, 1868, conveying to him blocks numbered 20, 21 and 34 in West Kansas City addition No. 1, Jackson county, Missouri. This deed was objected to on the ground that it had not been acknowledged as the deed of the West Kansas Land Company, but as the deed of Houck and Case; and also on the ground that the corporate seal of said land company was not affixed, but instead thereof the seals of said Houck and Case.

The granting clause in this deed is as follows:

“Know all men by these presents: That the West Kansas Land Company, by Solomon Houck, President, and Theodore S. Case, Secretary, * * has granted * *”

The attestation clause and signatures are as follows:

“In witness whereof we hereunto subscribe our names and affix our seals this 27th day of October, 1868.

[SEAL.]

SOLOMON HOUCK, President.

[SEAL.]

THEODORE S. CASE, Secty.

[SEAL.]

W. K. LAND CO.”

[SEAL.]

“STATE OF MISSOURI,

)

County of Jackson.

)

Be it remembered that S. Houck, President, and Theo. S. Case, Secretary, who are personally known to the undersigned, a notary public within and for said county, to be the persons whose names are subscribed to the foregoing deed as parties thereto, this day appeared before me and acknowledged that they executed and delivered the same as their voluntary act and deed for the purposes therein mentioned.

Given under my hand this 27th day

[SEAL.]

of October, 1868.

JOHN R. BALIS,

Notary Public.”

Reading the acknowledgment in connection with the deed, the signatures and seals, as indicated by the record, we are of the opinion that the trial court ruled properly in holding the instrument to be the deed of the West Kansas Land Company. That company is named as the grantor in the body of the deed, acting by and through Houck, President, and Case, Secretary. The fact that it was not signed West Kansas Land Company by said Houck and Case--but by said Houck, President, and Case, Secretary, West Kansas Land Company--does not make it the deed of said Houck and Case, and it was so held in the case of Shewalter v. Pirner, 55 Mo. 218, where a similar question was presented.

Although it is stated in the testimonium clause of the deed, that “we hereunto subscribe our names and affix our seals,” it will be observed that there were four seals to the deed, one opposite the name of Houck, Pres't, one opposite the name of Case, Secretary, one opposite the name W. K. Land Company, and one standing isolated. We think the presumption can be fairly indulged that one of these seals was the seal of the company. Such a presumption can be as fairly indulged, as it is in a case where the record indicates by a scroll attached to the certificate of a notary that the seal thus indicated is his notarial seal, although he only states in the testimonium of his certificate that he subscribes his name. It is the seal of the notary which gives efficacy to his certificate, as it is the seal of the corporation which gives efficacy to the deed of a corporation. “When the common seal of a corporation is affixed to an instrument and the signatures of the proper officers are proved, the courts are to presume that the officers did not exceed their authority. The contrary must be shown by the objecting party.” St. Louis Public Schools v. Risley, 28 Mo. 415. “In aid of a certificate of acknowledgment, reference may be had to the instrument itself or any part of it. It is the policy of the law to uphold certificates when substance is found, and not to suffer conveyances or the proof of them to be defeated by technical or unsubstantial objections.” Carpenter v. Dexter, 8 Wall. 513.

3. TAXES: assessment as evidence of ownership.

It appears from the evidence that the said blocks 20, 21 and 34 included in the said deed from Joy to the Hannibal & St. Joseph Railroad Company, and which plaintiff was seeking to subject to sale for the taxes due upon it, were assessed to said Joy as owner; and it also appears from the 82nd section of plaintiff's charter, (Acts 1875, p. 243,) that this was evidence of Joy's ownership of the property assessed. Had the court, therefore, excluded said deed, plaintiff's right to a judgment would have been unaffected thereby, inasmuch as whatever interest Joy had in said blocks, had been conveyed to the Hannibal & St. Joseph Railroad Company by the deed of said Joy dated June 23rd, 1877, which we have said was properly received in evidence.

5. PRACTICE: evidence.

It is also objected that the deed from Joy to defendant corporation conveying blocks 20, 21 and 34 in Kansas City ought not to have been admitted to show title to blocks 20, 21 and 34 in West Kansas addition to Kansas City. No such objection as this was made to the introduction of the deed, and it cannot, therefore, be considered. The only objection to its introduction was that the notary did not affix his seal to his certificate, and so state in the testimonium clause thereof.

Defendant asked and ...