Connell v. Galligher
| Decision Date | 26 April 1893 |
| Docket Number | 4780 |
| Citation | 55 N.W. 229,36 Neb. 749 |
| Parties | W. J. CONNELL, APPELLEE, v. ELIZABETH GALLIGHER ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before TIFFANY, J.
AFFIRMED.
Gregory Day & Day and George M. O'Brien, for appellants.
Connell & Ives, contra.
RYAN C. RAGAN, C., concurs. IRVINE, C., as district judge, took no part in the consideration or decision of this case.
The real property which is the subject-matter of this action is lot 6 in Smith & Griffin's addition to the city of Omaha. This lot is a part of the northwest quarter of section 28, in township 15 north, range 13 east of the 6th principal meridian. The opinion of the supreme court in O'Brien v. Gaslin, 20 Neb. 347, 30 N.W. 274, settled several questions as to lots 8, 9, and 12 in this same addition thereby eliminating similar questions from this action. In the case just cited will be found an abstract of the title of the above described 80-acre tract, covering many of the conveyances hereinafter discussed, which it is not deemed necessary now to reproduce. To the understanding of the discussions hereinafter it is believed that supplementary to the reference to the above plat it will be sufficient to give the following description of the parties, their interests, the source of their claims, and their several contentions:
Augustus Graeter, Jr., was the owner of the whole 80 acre tract on October 20, 1857. On that day he conveyed the undivided one-half of said property to James E. North, and the other undivided one-half he conveyed to Augustus Graeter, Sr. Each conveyance was by warranty deed, which deeds were recorded on the last date above named. James E. North, by warranty deed, on January 9, 1858, conveyed back to Augustus Graeter, Jr., the undivided one-half of said property of which he had been vested with title as above stated. On January 12, 1858, Augustus Graeter, Sr., executed a warranty deed to Augustus Graeter, Jr., for the undivided one-half of said property which he held by virtue of the conveyance aforesaid. This deed was executed in Ohio and acknowledged before a purported justice of the peace, and did not have a certificate of the proper certifying officer of the county where the acknowledgment was taken, under seal of his office, showing that the officer who took the acknowledgment was in fact the officer he assumed to be; that such certifying officer was acquainted with the handwriting of said justice of the peace, and believed his signature to be genuine, and that the execution and acknowledgment were according to the laws of the state wherein the execution thereof took place. A decree was relied upon to obviate these objections, to which further reference will be made hereafter.
In the suit of Wood v. Baugh, Dawkins, and Graeter a judgment was recovered against each of the defendants, including Augustus Graeter, Jr., upon alleged personal service of summons upon him, and the appearance of George B. Lake as attorney for the defendants. Under this judgment a sale of the premises was made to J. M. Woolworth, by whom a deed of the entire property was executed to Robert K. Woods, who, by power of attorney, authorized said J. M. Woolworth to convey the property therein irregularly described. (There arises upon this power of attorney a serious contention as to the sufficiency of the description of the property in respect of which the attorney in fact was authorized to make conveyance.) Under this power of attorney J. M. Woolworth made conveyance of the entire property, whereunder, by mesne conveyances, the appellee W. J. Connell derives his title.
By reason of the defective proof of the power of the justice of the peace to take the acknowledgment as above noted, the appellants claim that Graeter, Jr., at the time of said sheriff's sale, owned only an undivided one-half of the property described in the sheriff's deed, the other half (as to which, as appellants insist, the defective acknowledgment avoided the deed) appellants maintain is held by the grantees of Graeter, Jr., by an equitable title, whatever may be held as to the other points upon which they rely. The appellants further contend that the court obtained no jurisdiction of Graeter, Jr., in the case of Woods v. Baugh, Dawkins, and Graeter, for that no summons therein was ever served on said Graeter, Jr., and because the appearance of Judge Lake for defendants in said cause was without authority from Augustus Graeter, Jr. As the result of these contentions appellants assert that the title to the whole property was held by Graeter, Jr., on December 9, 1874, by whom on that date it was by quitclaim deed conveyed to James E. North, by whom by quitclaim deed of date, March 16, 1886, Elizabeth Galligher derives whatever title she has to the premises aforesaid, and that by reason of the defects, hereinafter to be considered, in appellee's chain of title her title is unaffected by appellee's claim of title. To the proper settlement of these contentions it will be necessary to consider the following questions:
First--What was the effect of the failure to show the due execution of the certificate of acknowledgment of the deed of Augustus Graeter, Sr., to Augustus Graeter, Jr., and how far was this irregularity cured by decree?
Second--What jurisdiction had the court of Augustus Graeter, Jr., personally, when it rendered judgment in favor of Woods v. Baugh, Dawkins, and Graeter?
Third--Was the subject-matter of the power of attorney of Robert K. Woods to J. M. Woolworth so defectively described that, thereunder, said attorney in fact could convey no title?
1. The first question was in fact considered in O'Brien v. Gaslin, supra, which was an action of ejectment brought by Gaslin against the other parties to the suit. Plaintiff's chain of title, and consequent right of possession, in that case, could be made complete only by introducing in evidence the record of the deed, as to which there was no proof that the acknowledgment was taken by a justice of the peace authorized to take such acknowledgments. It was therefore held that as the record of the deed under such circumstances was a nullity and inadmissible against a subsequent purchaser of the land, it devolved upon the plaintiff to offer a deed properly certified as part of his chain of title, and until he did do this, the adverse party might rely upon his possession alone as a defense. Like the above, the case at bar was begun by ejectment simply for the possession of the property in dispute. On motion of the appellants it was upon equitable issues, which involved as well the title as the right of possession, tried as an equitable action. It well might be that under such circumstances the want of certification noticed would be of different effect in a cause wherein all questions of title were at issue, as compared with one wherein was involved only the right of possession, such right depending upon the introduction in evidence of a deed imperfectly proved as such. The decision of this case, however, does not require us to determine what if any difference should be observed, and no such determination will be attempted.
Appellants contend that at least the defect in the proof of due acknowledgment of the deed from Graeter, Sr., to Graeter, Jr., was to vest in Graeter, Jr., a mere equitable title, and that such a title could not be divested by the sheriff's sale made under the judgment rendered in the case of Woods v. Baugh et al. This, it is claimed, results from the holding of this court that a judgment lien cannot attach to a mere equity. (Nessler v. Neher, 18 Neb. 649, 26 N.W. 471.) In Rosenfield v. Chada, 12 Neb. 25, 10 N.W. 465, it was held, however, that an equitable interest in real estate, coupled with actual possession, could be sold under an ordinary execution, and from the proofs adduced as to possession in this case by appellants, it would not be wholly without warrant to find such possession as would be necessary to bring this case within the rule in the last cited case upon appellants' own theory. But it is not believed correct to assume that by reason of the defective proof of the powers and acts of one who assumed to take, as an officer, the grantor's acknowledgment of the deed in question, an equitable interest in any way resulted by operation of this deed. An equitable interest is one that can be made available, effective, or sustained in a court of equity, is the definition given by Webster and Abbott. In Harrison v. McWhirter, 12 Neb. 152, 10 N.W. 545, it was held that neither acknowledgment nor recording is necessary to pass the title from the grantor to the grantee. As between Graeter, Sr., and Graeter, Jr., therefore, the deed as to which there was defective proof of acknowledgment operated to vest in the grantee whatever title was held by the grantor, in this case an undivided one-half of the real property in the deed described. The defect was simply as to proof of an incident to the due acknowledgment of a deed executed in another state. As between the grantor and grantee the contract of conveyance was complete when the deed was signed and delivered. Section 50, chapter 73, Compiled Statutes, provides that "every conveyance of real estate shall pass all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used." The deed under consideration was in form a warranty deed, from which no intent other than to convey all the interest of the grantor could be inferred. Therefore, it necessarily follows that no mere equitable interest as distinguished from the legal title passed by operation of this deed.
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