Harrington v. Fortner

• Decision Date: 31 October 1874
• Citation: 58 Mo. 468
• Parties: FRANCIS M. HARRINGTON, et al., Respondents, v. THOMAS FORTNER, et al., Appellants.
• Court: Missouri Supreme Court

58 Mo. 468

FRANCIS M. HARRINGTON, et al., Respondents,

v.THOMAS FORTNER, et al., Appellants.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Adair Circuit Court.

DeFrance & Halliburton, for Appellants.

I. The plaintiffs have not the legal title. The judgment before the justice of Macon county was void. The admission of parol evidence, to show that the summons was returned by the deputy in the name of his principal, was error. The evidence shows that the return was made by the deputy in his own name, and so absolutely void. (1 Mo., 504; 5 Mo., 533; 7 Mo., 359; 8 Mo., 177; Samuels vs. Shelton, 48 Mo., 444; McClure vs. Wells, 46 Mo., 311.)

II. The deed from Glassburner to Oliver did not pass the egal title. (Wagn. Stat., 273, § 7.) The case of Caldwell vs. Head was based on the statute of 1845, which is materially different from the statute of 1865. Said conveyance passed nothing more than an equitable interest, and did not convey a title upon which ejectment could be sustained.

III. A deed cannot be proven by a deposition to the copy of the record of it. The statute prescribes the manner of proving a deed, and it cannot be proven any other way. (Wagn. Stat., 275-6, §§ 11, 15, 17, 18, 19, 20, 21.)

IV. Plaintiffs have no right to recover without paying defendant the amount of the note and interest secured by the mortgage from Oliver to Johnson, for buying at sheriff's sale they buy no more than Oliver had, and the rule of caveat emptor applies. (10 Mo., 157.) Again, a party, buying land of which another is in possession, takes it with notice of the possessor's rights. (7 Mo., 610; 4 Mo., 62; 11 Mo., 77; 21 Mo., 313; 22 Mo., 415; 25 Mo., 318; 39 Mo., 506; 40 Mo., 405; 47 Mo., 306; 49 Mo., 350.) And the record of any instrument affecting real estate, which is properly acknowledged, whether it is sealed or not, is full notice to every one of its contents. (Wagn. Stat., 277, §§ 24, 25.) The mortgage, unsealed as it is, is good between Oliver and defendants, and the plaintiffs have no better position than Oliver had. (10 Mo., 229; 12 Mo., 63; 38 Mo., 120; 39 Mo., 24; 46 Mo., 404, 472.) Defendants in ejectment have a right to use all equitable defenses. (Pemberton vs. Johnson, 47 Mo., 227.)

V. Defendants can also show an outstanding legal title to defeat plaintiffs' suit. (6 Mo., 330; 11 Mo., 149; 17 Mo., 98; 27 Mo., 286, 405.) The defendants show an outstanding legal title in Halliburton, who, although he bought with knowledge of the record of the conveyance from Glassburner to Oliver, yet bought the legal title, as the deed from Glassburner to Oliver only conveyed an equitable title, and the deed not being acknowledged, was no notice to any of its contents, although they had seen it. And another rule of law comes in here, and that is this: “Equity extends its protection equally, if the purchase is originally of an equitable title without notice, and afterwards the party obtains or buys in a prior legal title, in order to support his equitable title.” (1 Sto. Eq. Jur., 9 ed., 56, § 64, n. 3,.) In this case Johnson had the equitable title, and Halliburton bought in from him a prior legal title to support his equitable title.

VI. Defendants can dispute Oliver's title, though he is Johnson's vendor. (9 Mo., 177; 12 Mo., 238; 11 Mo., 116; 16 Mo., 273; 33 Mo., 269; 36 Mo., 163.)

VII. The plaintiffs must recover upon their own legal title or fail. (Wagn. Stat., 557, § 1; Beal vs. Harmon, 38 Mo., 435.)

VIII. As to equitable defenses in ejectment suits, see Jones vs. Mack, 53 Mo., 407; Honaker vs. Shough, 55 Mo., 472.

Harrington & Cover, for Respondents.

I. The mortgage was but an equitable one, and required the interposition of a court of equity to enforce the same.

II. All the interest that Johnson can claim to said land he got by virtue of the equitable mortgage. When a dismissal

was entered as to Johnson, he went out of court, and then his defense under his mortgage ceased. If it be true that Oliver had no interest in said land at that date, on account of the defective acknowledgment as claimed by appellants, then it is equally true that Johnson has no interest.

III. The evidence shows that Oliver left the State only a few days after the service of process on him, and it was not necessary to have an execution issued by the justice. (Wagn. Stat., 839, § 14.)

IV. When an instrument is lost or destroyed, parol evidence is admissible to prove its contents. (Gould vs. Trowbridge, 32 Mo., 291; Farrell's Adm'r vs. Brennan's Adm'x, 32 Mo., 392; Broggs vs. Henderson, 49 Mo., 531; Minor vs. Tillotson, 7 Pet., 99; Christy vs. Kavanaugh, 45 Mo., 375.)

V. The instrument, introduced in evidence, from Oliver to Johnson was not made under seal, and imparted notice to none. It was not such an instrument as the law authorized to be recorded; it was only an equitable mortgage.

VI. There is no evidence to show that Harrington had notice of the so called mortgage and knew that Fortner was in possession of said land. The execution of the deed from Glassburner to Oliver can be proven by a deposition of a witness. The proof in question was taken by a notary public in California. (Wagn. Stat., 274, § 9.)

SHERWOOD, Judge, delivered the opinion of the court.

The plaintiffs, Harrington and Cover, brought the present action to recover possession of the south east quarter of section 22, township 62, of range 17, and the south west quarter of section 23, of the same township and range. Both parties claim title through the same common source, John Oliver, who entered the land, conveyed it to Glassburner, who, in 1859, not having paid the purchase money, re-conveyed the land to Oliver; but the deed to the latter, although duly recorded, was defectively acknowledged, by reason of the acknowledgment having been taken before a justice of the peace in Iowa.

The title of the plaintiffs is derived through a sale under an execution issued from the Circuit Court of Macon county upon the transcript of a judgment rendered by a justice of the peace of that county, in favor of Workman and against John Oliver, in the year 1869. This execution was directed to the sheriff of the county where the land was situated; the sale thereunder took place on the 27th of October, 1870, and was consummated by the deed of the sheriff, bearing date the 31st of that month.

The defendants pleaded the general issue, also that the transcript was filed in, and the execution issued out of, the office of the clerk of the Circuit Court, without authority of law; that the judgment against Oliver was rendered without notice; and further, as an equitable defense, they set forth, that Oliver, on the 31st of July, 1867, in order to secure the payment to Johnson of a note for $200, executed to him a mortgage on the premises in controversy, with power of sale in case of default made in the payment of the sum thus secured; that this mortgage was duly acknowledged and recorded, and was perfect in all its parts, except that it failed to have a scrawl attached by way of a seal; that Oliver failed to pay the note at maturity, and Johnson, exercising the powers vested in him by the instrument, sold the premises to defendant Fortner, who thereupon, in good faith, took possession of the premises, made valuable and lasting improvements, paid the tax thereon, and was in possession at the time of plaintiff's alleged purchase.

The chief averments of the answer were denied in the reply.

At the trial it appeared in evidence, that the original papers in the cause of Workman vs. Oliver were lost; parol evidence was therefore admissible to show that the summons had been duly served by the deputy constable, Jones, in the name of his principal, Lester. And the memorandum on the docket of the justice, that the summons was served on Oliver by the deputy, Jones, does not by any means contradict the parol evidence that such process was served in the name of the proper officer. As the evidence tended very strongly to show that...