Keck v. Fisher

• Decision Date: 31 January 1875
• Citation: 58 Mo. 532
• Parties: JOHN L. KECK, TRUSTEE OF MARTIN KECK, Respondent, v. S. J. FISHER, ADM'R OF EST. OF HENRY WOLFKALL, DEC'D, Appellant.
• Court: Missouri Supreme Court

58 Mo. 532

JOHN L. KECK, TRUSTEE OF MARTIN KECK, Respondent,

v.S. J. FISHER, ADM'R OF EST. OF HENRY WOLFKALL, DEC'D, Appellant.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Jackson Circuit Court.

A. A. Tomlinson, for Appellant.

Raber signed the name of “Helmreich & Co.” and acknowledged the instrument.

Raber was not the person whose name is signed to the instrument, and hence it cannot be his deed. The name of “H. Helmreich” is the name signed to the instrument (the word “Co.” being surplusage), and he did not sign or acknowledge it, so that it cannot be his deed. It is not Raber's deed because his name is not signed to it, and it is not Helmreich's deed because he neither signed nor acknowledged it; hence it is not the deed of either member of the firm and conveys nothing.

The certificate of acknowledgment states that Raber was personally known to the notary to be the person who signed the foregoing deed as a party thereto. The statute requires the officer to state that the person making the acknowledgment is the same person whose name is subscribed to the instrument as a party thereto. While courts hold that certificates of acknowledgment should be liberally construed, we apprehend that no court has decided, or is likely to decide, that one person can acknowledge the deed of another person unless he be anthorized by letter of attorney.

There is no claim that Raber had any authority to sign the name of Helmreich to the deed or acknowledge it. On the contrary Helmreich testifies that he never authorized Raber to sign his name to the deed--never ratified the signing, but sold and delivered the property to pay a firm debt.

Jenkins & Twitchell, for Respondent.

I. A member of a co-partnership has authority to execute, acknowledge and deliver a chattel mortgage or deed of trust upon a co-partnership chattel property for the purpose of securing an indebtedness of the firm of which he is a member. (Clark vs. Rives, 33 Mo., 579; Sto. on Part., § 94 [5th ed.]; Par. on Contr., 183-4 [6th ed.]

II. As one partner has power and authority to execute a deed of trust to secure a debt of the firm, he has also the power to do all other acts essential to the execution of the power, such as to acknowledge the execution for the purposes of registration. (Robinson & Caldwell vs. Mandlin, Montague & Co., 11 Ala., 984.)

III. The certificate of acknowledgment attached to the deed of trust, in this case, contains all the essential requisites of a good and perfect certificate, to-wit: the fact of the acknowledgment by the grantor and the identity of the person. (Bryan vs. Ramirez, 8 Cal., 461; Cavender vs. Heirs of Smith, 5 Ia., 157; Alexander & Betts vs. Samuel Henry, 9 Mo., 510.)

IV. The body of a deed may be referred to to support even a defective acknowledgment. (Bradford vs. Davidson & Campbell, 2 Ala., 203; Robinson & Caldwell vs. Mandlin, Montague & Co., 11 Ala., 977.)

V. Certificates of acknowledgment are to be liberally construed, and when substance is found, it is neither the duty nor inclination of courts to jeopardize titles in any way depending upon them by severe criticisms upon their language.

They will be liberally construed, and sustained if possible, by fair legal intendment. (Morse vs. Clayton, 13 S. & M., 373; Chandler vs. Spear, 22 Ver. [7 Washb.], 388; Jackson, ex dem Merrill vs. Stanton, 2 Cow., 552, 567; Suffborough vs. Parker, 12 Serg. & Rawle, 48; Hall vs. Gittings, 2 Harr. and John., 390; Talboit's Lessees vs. Simpson, 1 Pet., C. C. R., 191; McIntosh vs. Ward, 5 Bing., 296; Nantz vs. Bailey, 3 Dana, 113, 119; Fuhrman vs. Loudon, 13 Serg. & Rawle, 386; Brooks vs. Chaplin, 3 Ver., 281.)

WAGNER, Judge, delivered the opinion of the court.

This was an action in the nature of replevin, to recover the possession of certain personal property described in the petition. The plaintiff claimed the property as trustee by virtue of a written instrument made in the name of H. Helmreich & Co., which was executed by Charles Raber, a member of the firm. The defendant claimed the property by purchase from one Holden, who bought it from H. Helmreich & Co., subsequent to the execution of the deed to plaintiff. Raber signed the name of H. Helmreich & Co. to the deed, and acknowledged its execution before a notary public. The acknowledgment is as follows: “Be it remembered, that H. Helmreich & Co. by Charles Raber, of the firm of H. Helmreich & Co., who is personally known to the undersigned, a notary public within and for said county, to be the person who subscribed the foregoing deed, as party thereto, this day appeared before me and acknowledged that he executed and delivered the same for the uses and purposes therein contained.” It is now contended that Raber had no power to make the deed, without a special authorization from the other partner, and that the acknowledgment is bad.

The first point is surely not sustainable. In Clark vs. Rives, (33 Mo., 579) it was held, that each partner had full power and authority to sell, pledge or otherwise dispose of any effects belonging to the partnership, for any purpose within the scope of the partnership. Judge Story lays it down as the settled doctrine, that by virtue of the community of rights and interests in the partnership stock, funds and effects, each partner possesses full power and authority to sell, pledge or otherwise dispose of the...