DiCkens v. Miller

• Decision Date: 20 June 1882
• Citation: 12 Mo.App. 408
• Parties: CHARLOTTE DICKENS ET AL., Respondents, v. ROBERT MILLER, Appellant.
• Court: Missouri Court of Appeals

12 Mo.App. 408

CHARLOTTE DICKENS ET AL., Respondents,

v.ROBERT MILLER, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 20, 1882.

1. A scroll must, in order to give it the effect of a seal, be referred to as a seal in the body of the instrument.

2. It will not be presumed that the word “seal” used in a certified copy is meant to indicate the existence of the impression of a seal on the original.

3. That a person has not been heard from for some years does not establish his death, in the absence of proof that he had left the state.

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Reversed and remanded.

FRANKLIN FERRISS and MORTIMER F. TAYLOR, for the appellant.

A. MCELHINNEY, for the respondents.

THOMPSON, J., delivered the opinion of the court.

This is an action of ejectment. It appears that the land was granted in 1857 by the United States to Rebecca Hooper, who, in 1867, conveyed it to George W. Dickens. The plaintiffs, except Mr. McElhinney, claim title to the land as the heirs at law of George W. Dickens, and Mr. McElhinney claims title as grantee of these heirs. The defendant does not exhibit any title. He claims to have entered as tenant of George W. Dickens, and that when Dickens left the neighborhood, as hereafter stated, he simply claimed the land as his own, and repudiated the tenancy.

The defendant offered in evidence a certified copy of a deed from Rebecca Hooper to Dempson Hooper, to show an outstanding title. This deed contains no testimonium clause, and nowhere on its face does it purport to be a sealed instrument. After the signature of the grantor, which is written with a mark, is written the word “seal,” partially enclosed in a circle or flourish. This deed was rejected on the ground that it did not purport to be sealed; and this is complained of as error. Our statute which permits the use of a scroll by way of seal, is as follows: “Every instrument of writing expressed on the face thereof to be sealed, and to which the person executing the same shall affix a scrawl by way of seal, shall be deemed and adjudged to be sealed.” Rev. Stats., sect. 662.

This statute was in force in 1848, when the deed in question purports to have been made. Rev. Stats. 1845, p. 216, sect. 5.

It is conceded that under this statute, where a scroll is used upon a deed instead of a seal, the scroll must be referred to as the grantor's seal, somewhere in the deed, either in the body of it, or in the testimonium clause. In other words, if the person executing the deed uses a scroll instead of a seal, he must say in the deed that it is his seal, or it will be no deed. Cartmill v. Hopkins, 2 Mo. 220; Grimsley v. Riley, 5 Mo. 280; Walker v. Keile, 8 Mo. 301; Glasscock v. Glasscock, 8 Mo. 577. On the other hand, when the deed is in fact sealed, it is unnecessary to mention the fact, either in the body of the deed or in the testimonium clause. Dingee v. Kearney, 2 Mo. App. 515, 525.

But in the present case the court below did not have before it the deed itself, but only a copy of it, certified from the public records by the recorder. Had the deed been, in fact, impressed with a waxen seal, this seal could not have been copied, either in recording it, or in making the transcript from the record. This being so, the defendant claims that we ought to presume that the deed was in fact sealed when it was executed. It is true that a presumption of right acting is frequently resorted to in courts of justice, to supply deficiencies in a chain of title after a lapse of time. Ex diuturnitate temporis omnia prœsumuntur rite etsolemniter esse acta. But as pointed out by BAKEWELL, J., in Dingee v. Kearney (2 Mo. App. 515, 525), this is an artificial presumption founded in public policy, and resorted to for the purpose of supporting titles which have been accompanied by long-established possession under a claim of absolute ownership, It will not be resorted to, against the probability as to the fact, for the purpose of establishing an outstanding title, so as to enable a defendant in ejectment to prevent a recovery without showing any title in himself. Such a presumption in this case would be against the strongest probability as to the fact. We may take judicial notice of the fact that the use of private seals has never been in vogue in this state. If there have been exceptions to this rule, they have been extremely rare. That a woman who could not write her name should have such a seal would, in our day, be in the last degree improbable; though the inability of a person to write in ancient times, afforded the chief reason for his having a seal.

There is scarcely the most attenuated probability that the original of the deed in question was ever impressed with a seal of wax, or of any other adhesive substance, by or for Rebecca Hooper. If the scroll made on the copy of the deed in this case stood in place of the seal of a notary public or other officer, who, in authenticating such instruments is required to use a seal, the presumption would be entirely different, for the probability would be exactly the reverse; and therefore the case of Dale v. Wright (57 Mo. 110), which so holds, does not help the defendant. Boynton v. Reynolds (3 Mo. 79), is not an authority for the defendant's position, as will appear from the explanation of it given in Walker v. Keile (8 Mo. 301). In the former case, an instrument was declared on as a “sealed note.” The clerk could not make it appear in copying it in the transcript, whether or not it was sealed, and the supreme court presumed, in support of the judgment of the circuit court that it was sealed. It was probably filed with the declaration under the statute. If it had not been, the defendant could have craved oyer and demurred, thus bringing to the attention of the circuit court the question whether or not it was a sealed instrument. Private seals have long ceased to be of any value in the authentication of written instruments, and the rule which preserves the distinction between sealed and unsealed instruments, where so executed, is entirely technical and formal. But it is interwoven with our law of real property, and preserved in our statute law. We cannot, therefore, disregard it, and we must accordingly hold that the learned judge committed no error in refusing to admit this so-called deed in evidence.

2. There was no direct evidence that George W. Dickens was dead. There was evidence to the effect that, in 1868 or 1869, he had lived on the place for a year or so, and that he then went away to Pulaski County in this state, where he lived some months with his brother Thomas, working during the time on the railroad as a laborer. In March, 1870, he left his brother's house in Pulaski County for the purpose, as he stated, of going to Lebanon, in this state, to get his pay from the railroad company. A month later he was known to be in Lebanon. Since then his family, according to the testimony of his brothers, have never seen nor heard of him. When he left St. Louis County he was about twenty-two years old and unmarried. He had been living by himself on the place in controversy. A peddler had taken sick and died there, and Dickens said he thought the...