Finley v. Babb

• Citation: 73 S.W. 180,173 Mo. 257
• Parties: FINLEY v. BABB et al., Appellants
• Decision Date: 18 March 1903
• Court: United States State Supreme Court of Missouri

73 S.W. 180

173 Mo. 257

FINLEY v. BABB et al., Appellants

Supreme Court of Missouri, First Division

March 18, 1903

Appeal from Scott Circuit Court. -- Hon. Henry C. Riley, Judge.

Reversed.

M Arnold and Joe W. Moore for appellants.

(1) The deed of trust dated September 20, 1892, signed by L Kirkpatrick and purporting to be signed by Missouri Kirkpatrick, is absolutely void and conveyed no title at all to plaintiff. Finley v. Babb, 144 Mo. 403. This conveyance did not even impart notice to purchasers for value, because the acknowledgment was defective, being forged. This forged trust deed was recorded September 27 1892, and on October 20, 1892, less than one month afterwards, Missouri Kirkpatrick, Lank Kirkpatrick and Alice Kirkpatrick, his wife, executed a genuine deed of trust to H. L. Finley and under the sale of which E. J. Malone and J. H. Vanausdale became the purchasers. The forged deed of trust dated September 27th would not even have conveyed the interest of Lank Kirkpatrick, as the acknowledgment was defective, being forged, and did not impart legal notice to E. J. Malone and J. H. Vanausdale, the purchasers for value. Bishop v. Schneider, 46 Mo. 472; Finley v. Babb, 144 Mo. 403. (2) All interests in real estate are vendible. Brown v. Fulkerson, 125 Mo. 400; Godman v. Simmons, 113 Mo. 122. (3) The tax deed by the sheriff, dated April 20, 1898, also shows title in appellants, and even if the forged deed did convey interest of Lank Kirkpatrick, the tax deed under sale made afterwards would vest title in appellants, who were the purchasers at that sale.

Boone & Lee, W. C. Russell and Russell & Deal for respondent.

(1) This court has held that a remainderman can convey his future contingent interest, and that being true, the only question for decision in this case is, under which deed of trust did the interest of Lank Kirkpatrick pass, the first or the second? Godman v. Simmons, 113 Mo. 122. (2) This deed of trust dated September 20, 1892, was signed by Lank Kirkpatrick, and was taken by Hagan in good faith to secure three hundred dollars. It was good as to Lank Kirkpatrick. The fact that Lank forged his mother's name and that of the justice of the peace could not destroy its validity as to him. He could not thus profit by or take advantage of his own wrong. Brien v. Fleming, 135 Mo. 597. (3) The deed of trust being good as to him, was good against all persons buying with notice of the same. Chandler v. Bailey, 89 Mo. 641; Wilson v. Kimmel, 109 Mo. 260; Hanna v. Davis, 112 Mo. 601. (4) This deed of trust was duly recorded September 27, 1892, and was constructive notice after being recorded one year whether it was acknowledged or not. Sec. 3118, R. S. 1899. Defendant did not purchase for more than two years after the said deed of trust was recorded. (5) Moreover, the purchasers at the time of their purchase under the second deed of trust had actual notice of the existence of the prior deed of trust under which we claim, as it was distinctly announced by the trustee selling to them that he was selling subject to the first deed of trust, and they purchased with that understanding. (6) In an effort to perfect their title they caused tax suit to be brought against themselves and others, while they were owners of the life estate, in the possession of the land and full enjoyment of the rents and profits of the premises, and at that sale purchased the land, but no part of the consideration was in fact paid. The defendant Malone in his evidence, and in answer to the question whether he did not have the suit instituted for the purpose of perfecting his title, said: "Well there was back taxes on there. It might have been my object." He further stated that he was at the time in possession and collecting all rents. As life tenants in possession of the property it was their duty to pay the taxes and they certainly could not consume the interest of the remaindermen by instigating a tax suit, and sale of the lands, for taxes that they themselves were in duty bound to pay, and especially in view of the fact that they paid nothing for their deed obtained under the tax sale. Allen v. DeGroodt, 98 Mo. 159; Whitney v. Salter, 36 Minn. 103; Varney v. Stevens, 22 Me. 331; 1 Washburn, Real Prop. (5 Ed.), 129.

OPINION

MARSHALL, J.

Ejectment for the northwest quarter of the southwest quarter of section 33, township 27, range 15, in Scott county. The petition is in the usual form, and the answer is a general denial. The plaintiff recovered in the circuit court and the defendants appealed.

This is the second time the controversy between these parties for this land has come before this court. The first case is Finley v. Babb, 144 Mo. 403, 46 S.W. 165. The facts as they then appeared to this court are stated in the opinion to have been agreed to be as follows:

"Mrs. Missouri Kirkpatrick was the owner of the land in dispute. On September 20, 1892, her son, Lank Kirkpatrick, made a trust deed on the land to William 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 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 act so far as she and her interest goes; and this fact was known by all parties to this suit before they purchased the land. On October 20, 1892, Missouri Kirkpatrick made a genuine deed of trust on the same land to William Hunter, trustee for H. L. Finley, to secure $ 695, recorded December 22, 1892. On December 8, 1894, the trustee sold under the last deed of trust. The trustee at the sale notified the purchaser and all bidders of the Hagan deed of trust, and that the sale was made subject to it, and that Missouri Kirkpatrick did not sign the Hagan deed of trust, that her name and the justice's was a forgery done by Lank Kirkpatrick, but that Missouri Kirkpatrick agreed to and would ratify the same so far as she was concerned. Malone & Vanausdale purchased at this sale for $ 800 cash, deed recorded the same day. On March 6, 1895, the same land was sold under the Hagan deed of trust, by the trustee, and at the sale the plaintiff purchased with full notice of the other sale to Malone & Vanausdale. The defendants are in possession and were when suit was brought. The rents are worth in cash one hundred dollars net per year. On December 29, 1893, Missouri Kirkpatrick made a deed of trust on the same land to a trustee for Malone & Vanausdale to secure the sum of $ 485.52, duly acknowledged and recorded the same day. And she then told said Malone & Vanausdale that it was the second deed of trust on the land."

Upon this showing Division Two of this court, per Burgess, J., declared the law to be as follows:

"It is perfectly clear from the facts agreed upon that plaintiff was not entitled to recover in this action. In order to enable him to do so, it devolved upon him to show that he had the legal title to the land at the commencement of the suit, was entitled to its possession, and that defendants were then in the possession. [2 Greenl. on Ev. (15 Ed.), sec. 304; Fleming v. Johnson, 26 Ark. 421; Daniel v. Lefevre, 19 Ark. 201.]

"The mortgage under which plaintiff claims title being a forgery was absolutely void, and no title by virtue of the sale under it passed to him. Nor could Mrs. Kirkpatrick by any expressed willingness of hers to ratify that instrument, and to acquiesce therein made thereafter, cure it of its infirmity and make it a valid instrument. The only way that she could have done so was by the execution of a new mortgage in compliance with the statute, and this she could not have done so as to affect the intervening rights. No verbal statements that she could have made would have passed the legal title to the land to plaintiff or any one else, and this it was necessary for him to have in order to a recovery in this action.

"Plaintiff having failed to show title to the land or that he was entitled to its possession was not entitled to recover."

It will be observed that it thus appeared to this court at that time that Mrs. Kirkpatrick was the absolute owner of the land in 1892. Such, however, now appears was not the real fact, for she had only a life estate and the remainder was in her heirs, who at that time were Sherman, Hall and Lank Kirkpatrick. Sherman died October 24, 1898, and Mrs. Kirkpatrick died January 21, 1899, and this suit was begun September 14, 1899.

The plaintiff, in addition to the above facts, offered in evidence the deed of trust aforesaid dated September 20, 1892, and the trustee's deed, to the plaintiff, under the foreclosure thereof, dated March 6, 1895, and also a deed from Lank Kirkpatrick to O. F. Goodin, dated March 16, 1899, and a deed from said Goodin to the plaintiff, dated October 25, 1899.

The defendant introduced the deed of trust from Lank Kirkpatrick and wife, and Mrs. Missouri Kirkpatrick to plaintiff, dated October 20, 1892, and also the trustee's deed, at the foreclosure thereof on December 8, 1894, to E J. Malone (one of the defendants herein) and J. H. Vanausdale, and also a quitclaim deed from Vanausdale to Malone. Also a sheriff's tax title deed, which, however, need not be further referred to because the purchase price was returned to the defendant, and the sale...