Ebersole v. Rankin
| Decision Date | 19 January 1891 |
| Parties | Ebersole et al. v. Rankin, Appellant |
| Court | Missouri Supreme Court |
Appeal from Atchison Circuit Court. -- Hon. H. S. Kelley, Judge.
Reversed.
L. D Ramsay for appellant.
(1) The court erred in overruling defendant's motion to strike out the amended petition and in overruling the demurrer thereto, for the reason that it was a complete change of parties to the action. Gibbons v. Gentry, 20 Mo 268; Baker v. Noll, 59 Mo. 265. (2) The court erred in admitting in evidence the records of the deed from James A. Dick to Joseph W. Blackburn and of the deed from Joseph W Blackburn to Christian A. Ebersole, for the reason that they are not acknowledged by any officer authorized to take acknowledgments of deeds, nor do the certificates in either case show that the grantor was personally known to the officer, nor was there any offer to prove execution of original deeds. G. S. 1865, sec. 9, p. 444; G. S. 1865, secs. 13, 14, p. 445; Callaway v. Fash, 50 Mo. 420. The deeds were only entitled to record on proper proof or acknowledgment (G. S. 1865, sec. 24, p. 446); and even then were admissible in evidence only on oath or affidavit that the original was lost. G. S. 1865, sec. 30, p. 447; Hoskinson v. Adkins, 77 Mo. 537. Sections 2305 and 2366 of Revised Statutes of 1879 apply only to conveyances made prior to 1855, and do not aid respondents. Bishop v. Schneider, 46 Mo. 472; Ryan v. Carr, 46 Mo. 483. And then when the record is less than thirty years old, only admissible on due proof of the execution of the original instrument. R. S., sec. 2306; Crispin v. Hannovan, 72 Mo. 548. Section 2310 of the Revised Statutes, only applies to correctly acknowledged deeds. Gasmer v. Barry, 28 Mo. 449. (3) The court erred in not finding that the deed from John W. Ebersole to W. A. Rankin was superior to the alleged unrecorded deeds from John W. Ebersole to Christian A. Ebersole, and to Christian Ebersole. No conveyance is valid except between the parties thereto and such as have actual notice thereof until the same shall be deposited with the recorder for record. 1 Wag. Stat., sec. 26, p. 276. And a purchaser under a quitclaim deed (even if the one under consideration be considered such) is under the registry act entitled to the same protection, as a purchaser by any other form of deed. Fox v. Hall, 74 Mo. 315; Bogan v. Neece, 75 Mo. 383; Willingham v. Hardin, 75 Mo. 429; Vance v. Corrigan, 78 Mo. 94; Chapman v. Simms, 53 Miss. 154; Munson v. Ensor, 94 Mo. 304. A purchaser from one who appears of record to be the owner in fee is not bound by equities in favor of a stranger. Odle v. Odle, 73 Mo. 289. And the same is true where the purchase is made from the heirs of such a person. So too a record of a conveyance from one apparent stranger to another, as would appear where a link was wanting in chain of title, would be neither actual nor constructive notice to a subsequent purchaser. Crockett v. Maguire, 10 Mo. 34; Chicago v. Witt, 75 Ill. 211; Doolittle v. Cork, 75 Ill. 354; Butts v. Norcress, 14 Pick. 224; Losey v. Simpson, 11 N.J.Eq. 246. Under the statute the notice that will save an unrecorded deed must be an actual notice of its existence, and there is no legal evidence on which the court could find any such knowledge on part of defendants, or Wm. A. Rankin, or parties through whom he obtained the John W. Ebersole title. (4) The court erred in admitting the testimony of John P. Lewis, and of the letters written by him for the reason: First. They were confidential communications between him and his client Ebersole. Second. There was no evidence that the knowledge he possessed was ever communicated to the Rankins, or either of them, but on the contrary his express statement is that it had not been. Third. He was clearly not the agent or attorney of Rankin, and what he may have known was not binding upon Rankin. (5) The court erred in refusing to give or consider any declarations of law to indicate the theory upon which it decided the case. They were asked before the decision was fully announced and should have been considered. (6) The court erred on the questions of facts; upon the whole evidence the decision should have been for defendant.
Kelley, Craig & Kelley also for appellant.
A. M. Hough with M. McKillop and John D. Campbell for respondents.
(1) The chain of title from Dick to John W. Ebersole is complete and perfect as between the parties thereto and all persons having knowledge of the same. Harrington v. Fortner, 58 Mo. 468; Cooley v. Rankin, 11 Mo. 402; Caldwell v. Head, 17 Mo. 561; Musick v. Barney, 49 Mo. 458. (2) The deed from Christian Ebersole to George S. King and the deed of John W. Ebersole to Christian Ebersole, of which David Rankin had notice, gave King a perfect title. See authorities last above cited, and Muldrew v. Robinson, 58 Mo. 331; Meier v. Blum, 80 Mo. 179; Eck v. Hatcher, 58 Mo. 235; Fellows v. Wise, 55 Mo. 413; Widdicombe v. Childers, 84 Mo. 382. (3) The foreclosure of the mortgage from King and wife to Christian "A." Ebersole, and the sheriff's deed to Solomon K. Ebersole in trust for the heirs of Christian Ebersole (respondents), vested the title of said premises in the said heirs of Christian Ebersole (respondents). R. S. 1879, sec. 3938; 51 Mo. 52; Adams on Ejectment, 137 and 238; 3 Redfield on Wills, ch. 10, secs. 88, 89, 90. (4) The mortgage from King and wife to Christian "A." Ebersole being part and parcel of the same transaction of which the deed from Christian Ebersole to King formed a part, though not executed or delivered till after the death of the mortgagee, Christian Ebersole, was nevertheless an agreement to give a mortgage and an equitable mortgage from its date. Wright v. Shumway, 1 Bissell, 23, 28; 2 Pomeroy's Equity, sec. 1237; 60 Mo. 498. (5) The whole transaction shows that the mortgage was intended to be given to Christian Ebersole, and that the middle letter "A" was put into the paper as error and mistake -- the said "A" amounts to nothing. Phillips v. Evans, 64 Mo. 17; State v. Black, 12 Mo. 531. (6) W. A. Rankin got nothing by the quitclaim deed from Dick. Dick had no interest to convey at date of said deed. Harrington v. Fortner, 58 Mo. 468; Cooley v. Rankin, 11 Mo. 408; Caldwell v. Head, 17 Mo. 561. (7) W. A. Rankin got nothing for his deed from King. King had no interest to convey. All his interest in the premises had been sold by the foreclosure of his mortgage to Ebersole. See argument and authorities cited. (8) All that Rankin got by his deed from John W. Ebersole was his interest as heir of Christian Ebersole, viz., the undivided one-ninth. (9) David Rankin having notice of the rights and equities of the respondents at the time of the purchase of said land by him from John W. Ebersole, W. A. Rankin, to whom the deed was made, was bound by that knowledge. Mann v. Best, 62 Mo. 491; Stivers v. Horn, 62 Mo. 473; Ridgway v. Holliday, 59 Mo. 473; Campbell v. Gas. Co., 84 Mo. 352. (10) The records of the deeds and of the proceedings in the circuit [court] of Atchison county, which David Rankin saw prior to his purchase of the lands in controversy, were both actual and constructive notice to him of the rights and equities of the respondents, and binding on W. A. Rankin. (11) The decree of foreclosure in case of Sherer, public administrator, in charge of estate, Christian Ebersole, v. George S. King, is the judgment of a court of a general jurisdiction, in which the court had jurisdiction of the parties and subject-matter and cannot be successfully attacked collaterally. It imports absolute verity, and cannot now be contradicted. Ivernad v. Loberg, 26 Ill. 179; Fithian v. Monks, 43 Mo. 502; Hardin v. Lee, 51 Mo. 241; Brocket v. Brocket, 53 Mo. 265.
OPINION
This is an action in ejectment for two hundred and forty acres of land in section 36, township 65, range 40, in Atchison county, instituted May 7, 1884, by petition in common form by plaintiffs Christian A. Ebersole, Samuel Ebersole, C. K. Ebersole, Malinda Miller, Mary, Rose and Alice Liety, heirs at law of Christian Ebersole, deceased. Afterwards on motion Effie E. Ebersole, another heir, was made a party plaintiff. The case was tried before the court without a jury on an amended petition, in which all of said heirs were plaintiffs, and by which Solomon K. Ebersole, as trustee of said heirs in one of the deeds in their chain of title, as was alleged, was made an additional plaintiff, and the answer of the defendant, which was a general denial, filed after his motion to strike out the amended petition, and his demurrer thereto had been overruled.
The court refused to give or consider any of the declarations of law asked for by the defendant, found for the plaintiffs for eight-ninths of the land, rendered judgment in their favor for the recovery thereof, for damages and for monthly rents and profits, from which judgment the defendant appeals.
It appeared from the record evidence introduced by plaintiff that James A. Dick being seized in fee simple by warranty deed, dated August 12, 1865, and recorded in said county December 15, 1865, conveyed the premises to Joseph W. Blackburn who, by warranty deed dated October 25, 1865, and recorded August 23, 1866, conveyed the same to Christian A. Ebersole, who by warranty deed dated December 27, 1865 and recorded August 23, 1866, conveyed the same to his brother, John W. Ebersole, who by quitclaim deed, dated June 19, 1880, and recorded July 5, 1880, conveyed the same to William A. Rankin, under whom the defendant in possession holds. Plaintiffs claim that they have acquired the title of said John W. Ebersole as against this quitclaim deed. The defendant claims title under said...
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