Finley v. Babb

• Decision Date: 31 May 1898
• Court: Missouri Supreme Court
• Parties: FINLEY v. BABB et al.

46 S.W. 165

144 Mo. 403

FINLEY v. BABB et al.

Supreme Court of Missouri, Division No. 2.

May 31, 1898.

EJECTMENT — FORGED MORTGAGES — EFFECT OF RATIFICATION — INTERVENING RIGHTS.

1. Plaintiff in ejectment must show the legal title in himself at the commencement of the suit, and that he is entitled to possession.

2. A mortgage to which the mortgagor's name and the justice's acknowledgment were forged is void, and no title passes to the purchaser at a foreclosure sale, as against a second mortgagee, though the mortgagor, when informed of the forgery, acquiesced in it, and stood willing to ratify the act so far as her interests were concerned.

3. A mortgagor can ratify a forged mortgage only by the execution of a new mortgage which will not affect intervening rights.

Appeal from circuit court, Scott county; H. C. Riley, Judge.

Ejectment by Henry L. Finley against William Babb and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Russell & Deal, for appellant. Joe W. Moore, for respondents.

BURGESS, J.

This is an action of ejectment for the possession of the N. W. ¼ of the S. W. ¼ of section 33, township 27, range 15, in Scott county, Mo. The trial was before the court, a jury being waived. There was judgment in favor of defendants, from which plaintiff appealed.

The case was tried upon the following agreed statement of facts: "Mrs. Missouri Kirkpatrick was the owner of the land in dispute. On the 20th day of September, 1892, her son, Lank Kirkpatrick, made a trust deed on the land to Wm. Halloway, trustee for J. R. Hagan, to secure a note of $300. This deed of trust was signed by Lank Kirkpatrick for himself; and he signed his mother's name, without her knowledge or consent, to the deed, and forged the justice's certificate of acknowledgment to the same, without the knowledge or consent of the justice or of his mother. This deed of trust was recorded September 27, 1892. The mother, while she did not authorize the signing of the deed, says that he did all of her business, and frequently signed her name, and, had he asked her permission, she would have authorized him to sign her name, and as soon as she learned he had done so she was willing to ratify the act, and is now, and will acquiesce in the fact, so far as she and her interest goes; and this fact was known by all the parties to this suit before they purchased the land. On the 20th day of October, 1892, Missouri Kirkpatrick made a genuine deed of trust on the same land to Wm. Hunter, trustee for H. L. Finley, to secure $695, recorded December 22, 1892. On December 8, 1894, trustee sold under the last deed of trust. The trustee at the sale...