Coe v. Ritter

• Decision Date: 30 April 1885
• Citation: Coe v. Ritter, 86 Mo. 277 (Mo. 1885)
• Parties: COE v. RITTER, Appellant.
• Court: Missouri Supreme Court

86 Mo. 277

COE

v.RITTER, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Pettis Circuit Court--HON.J. P. STROTHER, Judge.

AFFIRMED.

E. J. Smith for appellant.

(1) It was error to admit in evidence the deed of Sheriff Murray, acting as trustee, without proof of the absence from the state of Powell and Shackleford, trustees, which absence was necessary to give the sheriff power to act, and the recitals in the sheriff's deed are not evidence of that fact.The deed from Bunn to Coe was improperly admitted.It was void for want of description.(2) The lien dated from the commencement of the work.Allen v. Sales,56 Mo. 28;Douglass v. Zinc Co.,56 Mo. 388;Reilly v. Hudson,62 Mo. 383.The fact that Bunn was not made a party to the lien suit makes no difference here, as plaintiff does not offer to redeem from the lien.Heim v. Vogel,69 Mo. 529.(3)Plaintiff Coe could not recover, as he was not entitled to possession at the commencement of the suit, and did not bring suit.Bunn could not recover on a title acquired after the commencement of the suit.The right of possession that existed July 20, 1881, between Bunn and Ritter, and the rights, as to rents, that existed between Coe and Ritter, on and after September 7, 1881, cannot be litigated in this case.Wilson v. Garoghty,70 Mo. 517.

A. W. Anthony for respondent.

(1) The description in the deed was sufficiently certain.Hardy v. Matthews,38 Mo. 121;Campbell v. Johnson,44 Mo. 248.(2) The general judgment rendered against Mrs. Hickey was a nullity, and a sale under it conveyed no title, not even the husband's interest as tenant by the curtesy, if it existed.Higgins v. Peltzer,49 Mo. 152;Corrigan v. Bell,73 Mo. 53;Werneke et al. v. Woods, Adm'r,58 Mo. 352.Her confession of judgment, if in proper form, was a nullity.Higgins v. Peltzer,49 Mo.loc. cit. 156.It is not in proper form.R. S., p. 629, sec. 3697.The attempt made about four years afterwards, to correct the judgment rendered, by a nunc pro tunc entry, was of no validity.The property was not again sold after the nunc pro tunc entry.Ritter, therefore, acquired nothing by his deed.(3) Next, as to the nunc pro tunc entry: In Jones v. Hart,60 Mo. 351, the whole question is carefully considered, and, applied to this case, as is against the appellant.See alsoFetters v. Baird,72 Mo. 389.It could not affect Bunn's title.McClanahan v. Smith,76 Mo. 428.

SHERWOOD, J.

This action, ejectment, originated in a contest between Bunn, the original plaintiff, the beneficiary in, and purchaser under a deed of trust, and Ritter, defendant, purchaser under a judgment for the enforcement of a mechanic's lien.The deed of trust, under which Bunn bought and plaintiff claims, was acknowledged and filed for record, August 9, 1873, by Catharine Hickey, and her husband, James, Catharine being the owner of the fee, and the admitted common source of title.A sale of the land conveyed by this trust deed, embracing the premises in dispute, as well as other land, occurred December 12, 1876, the sheriff of the county, Murray, being the acting trustee, authorized for that purpose by the deed itself, in the absence of Powell, the trustee, who was stated in the trust deed to be a resident of Connecticut.

Bunn became the purchaser at this sale, and, after bringing this suit, conveyed the land to Coe, the present plaintiff, by two deeds, the first a warranty deed, which does not, perhaps, sufficiently describe the land in suit; the second, which describes it as follows:

“Beginning on the south side of Broadway, 520 feet west of the east line of the northwest quarter of the southeast quarter of section three (3), township forty-five (45), range twenty-one (21), in Pettis county, Mo., thence south 165 feet, thence east 120 feet, thence north 165 feet, thence west 165 feet, to the place of beginning.”

The sale at which defendant Ritter purchased, under judgment for enforcing his lien against the property in occurred September 5, 1876, and a deed was made to suit, him on the next day.The deed recites a judgment rendered September 21, 1874, on a lien filed February 25, of that year.The original lien paper was filed February 24, 1874, showing the last item for lumber sold was September 16, 1873.The original judgment, of date September 21, 1874, shows that on that day the cause was docketed and the petition filed for the enforcement of the lien.This judgment does not recite the appearance of the defendants, nor that they were served with process, but it does recite that the court found the amount for which judgment was rendered from the proof adduced, and from the “confessions of the defendants.”Following what is called a ““substituted petition,” on which is no indorsement, or filing of date, or otherwise, there is a paper referred to by counsel for defendant, which bears date September 21, 1874, the date of the judgment, and is signed and sealed by Catharine Hickey, and her husband, James, by which they confess judgment for the amount rendered, and authorized judgment for that as well as for the enforcement of the mechanic's lien, and the judgment was rendered accordingly, as appears by the record.Neither Bunn, nor the trustee in the trust deed, were made parties to the proceeding for the enforcement of the mechanic's lien.The evidence shows that Cowsley was the carpenter and defendant the material man.

I.I find no difficulty as to the description of the land as set forth in the quit-claim deed from Bunn to plaintiffs.It is not shown that there is but one ““Broadway” in Pettis county; it certainly does not appear from the face of the deed that there are two, and there is, therefore, nothing denoting uncertainty in the description.If there are two “Broadways” in Pettis county, then this must be shown by extrinsic evidence, and when shown, then it is clearly admissible, by other extrinsic evidence, to apply the description in the deed to the particular Broadway intended.Hardy v. Matthews,38 Mo. 121;Campbell v. Johnson,,44 Mo. 247.It is not seen how the description of the initial point, in the present instance, is more uncertain than if the deed had said “beginning at a limestone rock 520 feet west of the east line,” etc., in which case no one would doubt the sufficiency of the descriptive words.

II.Although the recitals in the deed of trust were not evidence at the time of its execution, yet, since that time, the legislature has, by express enactment, made such recitals prima facie evidence of the truth thereof, even as to deeds previously executed.Sess. Acts 1881, p. 171.And it was competent for the legislature to do this.When thus regulating the remedy and mode of proceeding in courts, the legislature is but engaged in the legitimate exercise of its accustomed functions, and does not, by so doing, trench upon vested rights, or impair the obligation of contracts.The right to have one's controversies determined by existing rules of evidence does not fall within the list of vested rights; nor does it constitute any essential portion of a contractual, or other right which a party desires to enforce.Such rules, like others affecting the mere remedy, are subject to continuous modification and control by the legislature, and changes effected in these rules, by legislative authority, may be made applicable even to existing causes of action, and will not trespass on constitutional prohibitions respecting retrospective enactments.Numerous instances and illustrations of this doctrine are to be found in the books.Rich v. Flanders,39 N. H. 304;Cooley's Const.Lim. 351, 452, and cases cited.

III.In the view I take of this cause, it becomes unnecessary to consider the declarations of law given or refused.This will be made manifest as I proceed with this opinion.If the original judgment, of date September 21, 1874, which purports to enforce the mechanic's lien, was rendered on the mere written confession of the husband, Hickey, and his wife, filed in court, as seems to be the case, such a paper, while it might be valid against the husband, could have no operation or force against the wife, whether the judgment be regarded as simply a moneyed judgment against the wife, or as a judgment possessing attributes of that nature combined with others, which authorized a sale of her land for the enforcement of the mechanic's lien.Considered merely as a moneyed judgment against the wife, it would be held null even if she had been served with process in the accustomed way.Higgins v. Peltzer,49 Mo. 152.In the case just cited, that of Caldwell v. Walters,18 Pa. St. 79, is noticed with approval, wherein it was held that a bond and warrant of attorney to confess judgment, given by a married woman and her husband, did not authorize judgment against her, and that a sale of her land, under such judgment, was, like the judgment on which it was based, absolutely void.In Higgins v. Peltzer, supra,other cases of similar import are cited, enforcing the doctrine already announced; and in that case it is held that such judgment, being absolutely void, it is open to collateral attack.

The cases which hold that a married woman cannot confess judgment where the result will be a personal judgment against her, do so upon the theory that a judgment is a specialty, creates a debt, is in the nature of a contract, and, therefore, cannot be taken against, or confessed by a person non sui juris.Freeman on Judgments, secs. 149, 150, and cases cited;Schoul. H. & W., sec. 331, and cases cited.And if a feme sole...