Gilbraith v. Gallivan

• Decision Date: 31 October 1883
• Parties: GILBRAITH, Appellant, v. GALLIVAN.
• Court: Missouri Supreme Court

78 Mo. 452

GILBRAITH, Appellant,

v.GALLIVAN.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

J. M. Crutchfield and Land & Sparks for appellant, cited Elliott v. Persoll, 1 Peters 328; Bours v. Zachariah, 11 Cal. 281; Merritt v. Yates, 71 Ill. 636; Ellwood v. Klock, 13 Barb. 50; Watson v. Bailey, 1 Binn. 470; Jourdan v. Jourdan, 9 Serg. & Rawl. 268, 275; Ennor v. Thompson, 46 Ill. 214; O'Ferrall v. Simplott, 4 Green (Iowa) 162; Stanton v. Button, 7 Conn. 527; Pendleton v. Button, 3 Conn. 406; Hayden v. Wescott, 11 Conn. 129; Mariner v. Saunders, 5 Gill. (Ill.) 113; Moore v. Tisdale, 5 B. Mon. (Ky.) 352; Woods v. Polhemus, 8 Ind. 60; Chauvin v. Wagner, 18 Mo. 531; Silliman v. Cummins, 13 Ohio 116; Martin v. Dwelz, 6 Wend. 9; Carr v. Williams, 10 Ohio 305; Looney v. Adamson, 48 Tex. 619; Jackson v. Ingraham, 4 John. 163; Williams v. Soutter, 55 Ill. 130; Willis v. Gattman, 53 Miss. 721; Abbott's Trial Ev., 174, § 15.

O. L. Houts for respondent.

WINSLOW, C.

This is an action of ejectment for an undivided interest in 160 acres of land in Johnson county, Missouri, commenced in the circuit court of that county, January 21st, 1879. The petition is in the usual form; and the answer a general denial, except the admission that defendant was in possession. The trial was before a jury, and the verdict and judgment were for defendant; to reverse which the plaintiff brings the case here by appeal. It was admitted on the trial that George Reiter was the common source of title; that the plaintiff is one of the only five equal heirs of one George F. Maus, who died intestate before the commencement of this suit; that plaintiff was a married woman at the time, but her husband was dead before the commencement of this suit; that defendant holds the possession; that the damages shall be $1, the rents and profits $2, per month. Plaintiff next read in evidence a deed from George Reiter and wife, to George F. Maus for the entire land, dated December 14th, 1864, which was in all respects sufficient to vest the legal title in him. This made out a prima facie case for plaintiff, and entitled her to the verdict and judgment.

For the purpose of showing this prima facie title out of plaintiff and in himself, defendant offered in evidence a deed from the admitted heirs of G. F. Maus, to Ursula Reiter, embracing the land in controversy, dated July 7th, 1866, and purporting to be acknowledged before C. H. Gordon, clerk of probate of Moniteau county, Missouri, on the day of its date. This deed is signed by plaintiff and her then husband, whose names appear on the face of the deed and in the certificate of acknowledgment, but the certificate of the notary entirely omits the privy examination of the plaintiff, thus rendering the deed void as to her. To remedy this defect the deed was sent to Gordon, who, on April 5th, 1871, indorsed a proper certificate upon it, containing the privy examination of plaintiff. This certificate recites the appearance of the parties as of the date of the deed. In the body he describes himself as clerk of the probate court; but the testimonium is as follows: “In testimony whereof I have hereunto set my hand and affixed the seal of said court this 5th day of April, 1871. C. M. Gordon, late clerk of probate court.” This deed was objected to by plaintiff, because not properly acknowledged. The objections were overruled, and the deed admitted. Defendant then introduced a deed from Ursula Reiter and her husband to himself, dated October 22nd, 1874, for the land in controversy. No acknowledgment or certificate of record appears; but plaintiff saved no exceptions on these grounds.

Plaintiff, in rebuttal, offered evidence to show that she never was, at any time, subjected to a privy examination by Gordon. Defendant, also, offered parol evidence tending to show that the facts stated in the certificate of April 5th, 1871, were true. An agreed statement of facts was read in evidence showing that Gordon was not the clerk of the Moniteau probate court, at the time he attached the amended certificate to the deed in controversy, and did not pretend to be acting in any official character whatever in performing said act; but that he was such clerk at the date of the deed, and when he took the first acknowledgment.

The only question in this case relates to the validity of the amended certificate of acknowledgment, placed upon the deed from the heirs of G. F. Maus to Ursula Reiter, by Gordon, the former clerk of the Moniteau probate court, long after his official term had expired, and when he had no official authority nor any right to the custody or use of the seal. The facts surrounding this question are very plainly stated above, just as the record shows them, and need not be stated here; in fact, there is no dispute about them.

Respondent relies on the cases of Wannall v. Kem, 51 Mo. 150, and 57 Mo. 478. A critical examination of these cases will disclose that they do not satisfactorily decide the question in the form here presented. The case first cited was a bill in equity to foreclose a mortgage, executed by Kem and his wife, on lands belonging to the wife in fee, to secure a note alleged to have been executed by them to plaintiff's indorser, and to correct a mistake in the mortgage, the alleged mistake being in the omission of the notary to insert in his certificate of acknowledgment the privy examination of Mrs. Kem, although he had actually taken the same. The notary was made a party. The relief asked was a decree of the court correcting the alleged mistake. There was no amended certificate on the mortgage, and no prayer for a mandamus on the notary to put one there, and no such questions were before the court. There was a demurrer to the bill, because of its insufficiency, and because the notary was not a proper or necessary party to the suit. The real question in judgment was, whether a court of equity possessed the power to correct a mistake in the acknowledgment of a deed of a married woman for her fee simple lands; and this was the only question the court could legitimately decide under the issues. But Adams, J., in writing the opinion of the court, after holding that a court of equity possessed no such power, because it was a statutory power conferred upon the officer, departed from the case before him and remarked, somewhat obiter: “The officer may voluntarily correct his certificate, or make out a proper certificate where he has given a defective one, if the facts really exist to warrant such action. If the officer refuses to make a proper certificate, he may be compelled to do so by mandamus.” It will be observed that no authorities are cited or reasons given why this should be so; and the remarks of the learned judge who wrote the opinion may be fairly classed as obiter dictum.

The second case cited between these same parties was an action on the note secured by the mortgage, which was given to one Brolaski, the plaintiff's indorser, for certificates of stock in a gas works company. One defense was, that the note was secured by fraudulent representations as to the stock. Mrs. Kem interposed a separate defense to the effect that she never was, in fact, subjected to a privy examination by the notary. These issues were tried by a jury, who found for defendant. Napton, J., in disposing of some questions put to Mrs. Kem,...