Dail v. Moore

• Decision Date: 28 February 1873
• Citation: 51 Mo. 589
• Parties: J. O. DAIL, Respondent, v. WILLIAM M. MOORE, Appellant.
• Court: Missouri Supreme Court

51 Mo. 589

J. O. DAIL, Respondent,

v.WILLIAM M. MOORE, Appellant.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Linn Common Pleas.

A. W. Mullins, for Appellant.

G. D. Burgess, for Respondent.

The deed of trust from Moore to Stephens and Stephens' deed to Dail were properly read in evidence, although the certificate of acknowledgment to the deed of trust may have been void. It was good without any acknowledgment as between the parties thereto. Its execution was not denied by appellant, therefore there was no necessity of proving it.

As Stephens' name is attached to the deed, it is prima facie his deed. (Caldwell vs. Head, 17 Mo., 562; Cooley vs. Rankin, 11 Mo., 642; 2 Greenl. Ev., § 300.)

SHERWOOD, Judge, delivered the opinion of the court.

This was an action of ejectment in the Linn County Court of Common Pleas: The petition and answer were in the usual form.

At the trial the plaintiff Joseph O. Dail offered in evidence a deed of trust which purported to have been executed by William M. Moore the defendant, and to convey to George W. Stephens as trustee, the land in controversy.

The defendant objected to this deed being read in evidence on two grounds: First, that the certificate of acknowledgment purported to have been made, and the execution of the instrument acknowledged, before the grantee therein; and that the certificate was therefore void. Second, that there was no evidence offered to otherwise establish the execution of the instrument.

The Court sustained the first ground of objection, but overruled the second, and the deed without any proof of its execution, was read in evidence. To the action of the Court in overruling his second ground of objection and in admitting the deed to be read in evidence, the defendant excepted.

The acknowledgment of the deed of trust appears to have been taken before George W. Stephens, the same person who is named in such deed as trustee.

The plaintiff next offered in evidence a deed from George W. Stephens, as trustee, to the plaintiff for the land sued for. To the reading of this deed in evidence, the defendant also objected on three grounds: First, that it was not properly acknowledged, the certificate of acknowledgment showing that Stephens acknowledged the execution of the instrument not as trustee, but in his individual right, without recognizing the pretended deed of trust as authority to make the conveyance: Second, That there had been no evidence tending to prove the execution of the deed of...