Hubbard v. Swofford Bros. Dry Goods Co.

• Decision Date: 24 December 1907
• Parties: HUBBARD et al. v. SWOFFORD BROS. DRY GOODS CO.
• Court: Missouri Supreme Court

108 S.W. 15

209 Mo. 495

HUBBARD et al. v. SWOFFORD BROS. DRY GOODS CO.

Supreme Court of Missouri, Division No. 1.

December 24, 1907.

1. DEEDS — CONSTRUCTION AS TO GRANTORS.

A deed purporting in the premises and in the witness clause to be made by S. as agent for H. and M., his wife, and signed by S. as "Atty." for H., is the deed of H., and not of S.

2. SAME — SEAL — PRESUMPTIONS.

Where a certified copy of a deed is offered in evidence, and the attesting clause declares that it is under the seal of the grantor, and the acknowledgment recites that it is duly executed, it is presumed that the original deed was sealed.

3. SAME — SUFFICIENCY OF SEAL.

The seal attached to a deed executed by an agent under a power is the seal of the grantor, though the name of the grantor is not written, but only the name of the agent, as "attorney for" the grantor.

4. ACKNOWLEDGMENT — RECITALS AS TO OFFICER'S AUTHORITY.

It is immaterial that the officer certifying an acknowledgment recited his municipal precinct as "Kansas," instead of the "City of Kansas."

5. EVIDENCE — COPY OF DEED — SUFFICIENCY OF CERTIFICATE.

Where the certified copy of a deed acknowledged before a mayor recited that it bears the mayor's official seal, it will be presumed that the omission of the "(L. S.)" in the copy was the mistake of the recorder making the copy.

6. ADVERSE POSSESSION — AGAINST WHOM PRESCRIPTION MAY BE CLAIMED — REMAINDERMEN.

Where adverse possession commenced to run against the grantor during his life, it continued to run against the remaindermen during the life tenancy.

7. SAME — CONTINUITY.

That the house on an inclosed lot was unoccupied for a short time did not break the continuity of the adverse possession.

Appeal from Circuit Court, Cass County; W. L. Jarrott, Judge.

Action by Joseph R. Hubbard and others against the Swofford Bros. Dry Goods Company. From an order setting aside a verdict for plaintiffs and granting a new trial, plaintiffs appeal. Affirmed.

Respondent cites the following authorities to the proposition that a temporary vacancy of the dwelling house did not constitute a break in the continuity of the adverse possession: Crispen v. Hannavan, 50 Mo. 536-549; Fugate v. Pierce, 49 Mo. 441; Stettnische v. Lamb, 18 Neb. 619, 26 N. W. 374; Hughs v. Pickering, 14 Pa. 297; Hudgins v. Crow, 32 Ga. 367; Downing v. Mayes, 153 Ill. 330, 38 N. E. 620, 46 Am. St. Rep. 896; De La Vega v. Butler, 47 Tex. 529; Patchin v. Stroud, 28 Vt. 394; Hunter v. Pinnell, 193 Mo. 142, 91 S. W. 472.

English & English, for appellants. Elijah Robinson and Ellis, Cook & Ellis, for respondent.

VALLIANT, P. J.

Plaintiffs sue in ejectment for the possession of certain real estate in Kansas City. The trial resulted in a verdict for the plaintiffs, which the court on defendant's motion set aside and granted a new trial. From that order, the plaintiffs have appealed.

Chester Hubbard, the father of the plaintiffs, was the common source of title. He lived in Kansas City from 1853 to 1857, when he moved to Iowa. While he lived in Kansas City he owned certain land in that city, which he platted into city blocks and lots called "Hubbard's Addition." The lot in controversy in this suit was in that addition. He died in 1861 in Iowa, leaving a will by which he devised all his estate, real and personal (without specifying any particular property), to his wife for life, remainder to his children. The widow died in 1899. The plaintiffs in this suit are the children of the testator, and claim this land as remaindermen under that will. The defendant claims title as follows: September 16, 1856, Chester Hubbard and his wife executed a power of attorney to John W. Summers, who, the evidence shows, was a justice of the peace in Kansas City, conferring on him plenary power to sell any or all real estate belonging to them in Jackson county. That document was duly acknowledged and was recorded October 16, 1856. December 2, 1856, Summers executed a deed conveying the lot in suit to George B. Wheeler for $225 in cash. The main controversy in this suit turns on the effect of that deed, which is as follows: "This indenture, made and entered into this second day of December, in the year of our Lord, one thousand eight hundred and fifty-six, by and between J. W. Summers, as agent for Chester Hubbard and Mary Hubbard, his wife, of the county of Jackson, and state of Missouri, of the first part, and George B. Wheeler, of the county and state aforesaid, of the second part, witnesseth: That the said party of the first part for and in consideration of the sum of two hundred and twenty-five dollars to me in hand paid, the receipt whereof is hereby acknowledged, have given, granted, bargained and sold, and by these presents do give grant, bargain and sell, alien, convey and confirm unto the said party of the second part, and to his heirs and assigns forever, a certain tract or parcel of land, lying and being in the County of Jackson, and state aforesaid; namely, a certain lot, piece or parcel of ground known in said `Hubbard's Addition' to the city of Kansas, as lot number twenty-seven (27), in block number six (6), said lot being sixty feet on Mary Street and one hundred and forty-two feet from said Mary Street to an alley, and being sixty feet on said alley. To have and to hold the said tract, piece or parcel of land with all the appurtenances thereto belonging or in any wise appertaining to the only proper use, benefit, and behoof of him, the said party of the second part, and to his heirs and assigns, forever. And the said party of the first part, for his heirs, executors and administrators, covenant and agree to and with said party of the second part, his heirs and assigns, the said tract, piece or parcel of land and bargained premises and every part and parcel thereof, unto him, the said party of the second part, and his heirs and assigns, against all manner of claims they will warrant and forever defend the same by these presents. In testimony whereof the said J. W. Summers, as agent for Chester Hubbard and Mary Hubbard, his wife, of the first part, has hereunto set his hand and seal this day and year above written. J. W. Summers, Atty. for Chester Hubbard." Plaintiffs urge several objections to this deed, the first of which is that it does not purport to be the deed of Hubbard and wife, but the personal deed of Summers.

One would have to yield his common-sense interpretation of this deed to a very narrow technical interpretation of it in order to reach the conclusion that it was intended otherwise than as the deed of Hubbard and wife by their attorney in fact. When it was offered in evidence, one of the objections interposed was that it was the deed of Summers, and not that of Hubbard and wife, and it was said that the words "agent" and "attorney" for Chester Hubbard and Mary Hubbard, his wife, were "merely descriptive" of Summers. Words of description are sometimes used to identify a person whose mere name in the connection used might be mistaken to refer to some other person of the same name, as, for example, Charles Carroll, of Carrollton, but can any such purpose be imagined in this instance? Besides, Summers was conveying land that it is admitted belonged to Hubbard. As agent of Hubbard he was selling Hubbard's land. How did Summers understand his act, how did Wheeler understand it, how would any man of common sense,...