Lincoln v. Thompson

• Decision Date: 30 April 1882
• Citation: 75 Mo. 613
• Parties: LINCOLN, Appellant, v. THOMPSON.
• Court: Missouri Supreme Court

75 Mo. 613

LINCOLN, Appellant,

v.THOMPSON.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Clay Circuit Court.--HON. GEORGE W. DUNN, Judge.

REVERSED.

James E. Lincoln and Wash Adams for appellant.

The deed made and signed by Gittings as sheriff, but acknowledged by Long, is a nullity. The certificate of acknowledgment characterizes Long as sheriff, and it is so stated in the body of the deed. Long made the levy as sheriff, and under the law then could have made the sale and deed as ex-sheriff and properly acknowledged it. It is evident that he acknowledged the deed under the belief that it was his duty to do so. Will a court by construction set aside and annul the plain averments of an acknowledgment? It may supply defects and even make changes when the context indicates the intention on its face. But no case is cited holding that a court will contradict and destroy the plain and positive statements of an acknowledgment, and by construction supply their place with other and totally different statements. The legal acknowledgment of a sheriff's deed is essential to its validity and no title can pass without it. Ryan v. Carr, 46 Mo. 486; Adams v. Buchanan, 49 Mo. 71; Cabell v. Grubbs, 48 Mo. 356; Allen v. King, 35 Mo. 224, 225. The certificate of acknowledgment indorsed upon the deed itself must be within and of itself complete and no extrinsic evidence can be invoked to eke out its recitals. McClure v. McClurg, 53 Mo. 174; Samuels v. Shelton, 48 Mo. 447, 448; Ware v. Johnson, 55 Mo. 500; Chauvin v. Wagner, 18 Mo. 531. This deed not having been acknowledged according to law, its record did not impart constructive notice. If not acknowledged or proved its record is not provided for by law, and the fact that it may be copied upon the book of records will not operate as constructive notice to subsequent purchasers. Stevens v. Hampton, 46 Mo. 404; Bishop v. Schneider, 46 Mo. 480; Musick v. Barney, 49 Mo. 458; 44 Mo. 247; Cass Co. v. Oldham, 75 Mo. 50.

Mrs. Thompson's possession was not notice to Lincoln of the purchase by the bank and Reid. It was accounted for by the fact that she was Jas. T. V. Thompson's wife, and also was consistent with the Tillman deeds, which were of record. Lincoln was not bound to inquire further. Smith v. Yule, 31 Cal. 183; Meehan v. Williams, 48 Pa. St. 241; Billington v. Welsch, 5 Binn. 129; Rogers v. Jones, 8 N. H. 264, 271; Bell v. Twilight, 2 Foster (N. H.) 522; Coleman v. Barklew, 3 Dutch. 357; Emmons v. Murray, 16 N. H. 398; Patten v. Moore, 32 N. H. 385; Hewes v. Wiswell, 8 Greenl. 98; Mathews v. Demerritt, 22 Me. 315, 316; Butler v. Stevens, 26 Me. 484; Clark v. Morris, 22 Ill. 434; Bogue v. Williams, 48 Ill. 371; Brown v. Volkening, 64 N. Y. 83; Odle v. Odle, 73 Mo. 294.

The record of the quit-claim deed from Reid and the bank to Mrs. Thompson was not constructive notice of the title claimed by them. It referred to the dower agreement in an indefinite way, but not to the sheriff's deed to them. So far as the record goes, it was an isolated deed, not in the line of title at all, and, therefore, not notice to any one who had not actual knowledge of it. Crockett v. Maguire, 10 Mo. 37; Digman v. McCollum, 47 Mo. 374; Keller v. Nutz, 5 Serg. & R. 246; Maul v. Rider, 59 Pa. St. 171; Ely v. Wilcox, 20 Wis. 530; Day v. Clark, 25 Vt. 402; Hutchinson v. Harttmann, 15 Kas. 142.

Lincoln, being a judgment creditor, buying at his own sale, is within the protection of the recording act. Hill v. Paul, 8 Mo. 482, 483; Helm v. Logan, 4 Bibb 78; Reed v. Austin, 9 Mo. 722; Evans v. McGlasson, 18 Iowa 150; Halloway v. Platner, 20 Iowa 121; Gower v. Doheney, 33 Iowa 36; Fash v. Ravesies, 32 Ala. 451; Grace v. Wade, 45 Texas 529; Maupin v. Emmons, 47 Mo. 306; Draper v. Bryson, 26 Mo. 108; Ryland v. Callison, 54 Mo. 513; Matson v. Capelle, 62 Mo. 235; Ford v. French, 72 Mo. 250; De Witt v. Harvey, 4 Gray 486; Harrison v. Hollis, 2 Nott & M. 578; Sevier v. Ross, 1 Free. Ch. 519; Duval v. Waggener, 2 B. Mon. 183; Emerson v. Littlefield, 12 Me. 148; Curd v. Lackland, 49 Mo. 454. That he had no notice of the deed to Reid and the bank, we think the record abundantly shows.

Washington Adams and Charles A. Winslow also for appellant.

Glover & Shepley for respondents.

1. The certificate of acknowledgment to the Gittings deed is good. The statute does not require the name of the sheriff to be mentioned in the certificate. The name of Long may, therefore, be treated as stricken out. The law assumes that the court, clerk and sheriff know each other; and it is legally enough to state in any order that the sheriff or clerk of the court has done, or shall do this, or that, and it has never been considered necessary nor is it the custom to insert the name of any officer, whether judge, sheriff or clerk, in record entries, when their acts are noted. We may go further and say: that if this court should make an entry ordering the clerk of this court, John Smith by name, to do a certain thing, the order would be binding on the clerk of the court, though his true name is Henry W. Ewing. In such a case the name John Smith would be a self-evident mistake, and be disregarded. Ingram v. State, 37 Ala. 17; Major v. State, 2 Sneed (Tenn.) 11; Bliss Code Plead., § 195; Thompson v. Hascall, 30 Ill. 215; Dyer v. Flint, 21 Ill. 80; Norvell v. McHenry, 1 Mich. 227; Laughlin v. Stone, 5 Mo. 43. Now, if it be a presumption of law that the court always knows its own sheriff, it is impossible that Francis R. Long acknowledged this deed, because the pleadings admit that he was not the sheriff at the time. The same legal presumption forces the conclusion that Darius Gittings did make the acknowledgment, because he was sheriff at the time; and the court knew it, and knew him and knew that he acknowledged the deed.

2. It is a maxim of the common law that the presence of the body takes away error in the name. Praesentia coporis tollit errorem nominis. Broom Leg. Max., 639. Applied to the case at bar, this means that since the court knew Darius Gittings, and knew that he was sheriff of Clay county, therefore, it was Darius Gittings who appeared there in the body and acknowledged the deed. Such being the fact, the misnomer will not make the deed void.

3. Another rule of interpretation relieves this transaction of question. It is this: Words to which reference is made in any instrument have the same effect and operation as if they were inserted in the clause referring to them. Broom Leg. Max., 673. Instruments that refer to each other must be read together and be considered as one. Doe v. Barnard, 9 Sm. & M. 319; Cornell v. Todd, 3 Denio 130; Daniel v. Veal, 32 Geo. 589; Petty v. Boothe, 19 Ala 633; and when so taken and considered the intent shown by the whole shall prevail. Gibson v. Bogy, 28 Mo. 478; Brownlee v. Arnold, 60 Mo. 79; Lewis v. Ins. Co., 3 Mo. App. 372; Bradford v. Dawson, 2 Ala. 203. Here the certificate of acknowledgment refers to the deed as made by the sheriff who acknowledged it. On examination of the deed that person is shown to be Darius Gittings. It also shows that Francis R. Long made the levy, but did not sell because his term of office expired; that Darius Gittings did sell and made his return of sale, and made the deed; and that the person who made it was the person who acknowledged it; therefore, the certificate and deed, taken together, show that Darius Gittings acknowledged the deed.

4. A sheriff's conveyance of land must be deemed as one act, composed of several parts, viz: Judgment, execution, levy, sale, return, deed and acknowledgment, all of which are essential to the conveyance. Such being the case, the court must look through them all, and see if an error at one place is not explained by a true statement at another. It is a familiar rule of pleading, that when the true name, sum, date or description is once stated, that will correct a misstatement of such a matter. R. S. 1879, § 3582. This is the suggestion of common sense, and applies to deeds and records as well as pleadings. Let us apply this rule. The record here says the name of the person who sold the land was Darius Gittings; it says then, virtually, that Darius Gittings made the deed. It says that Long went out of office and Gittings was his successor as sheriff; and that the man who acknowledged the deed was sheriff of Clay county.

5. If the sheriff's deed to the bank and Reid was not legally acknowledged in 1865, it was not, therefore, void. It was ready to be acknowledged and when acknowledged in 1878 it became operative and vested title in the grantees by relation to the date of sale in 1865, as between the parties to it and all having actual notice of it. Porter v. Mariner, 50 Mo. 364; Leach v. Koening, 55 Mo. 451; Wallace v. Lawrence, 1 Wash. 503. The evidence, we claim, shows that Lincoln had notice.J. E. Merryman also for respondents.

The deed of the sheriff, Gittings, passed the title to the Farmers' Bank and Reid. The clerk committed a clerical error in transcribing the order of acknowledgment by inserting the name of F. R. Long as sheriff instead of Darius Gittings, the sheriff who made the sale and executed the deed. When the certificate of acknowledgment is inconsistent with the deed, and ambiguous, the court will look to the deed, or any part of it, together with the certificate, in order to arrive at the true meaning of the officer, which is that Gittings, not Long, made the acknowledgment. Carpenter v. Dexter, 8 Wall. 526; 45 Md. 395; Samuels v. Shelton, 48 Mo. 447, 448; Wise v. Postlewait, 3 W. Va. 452; Sanford v. Bulkley, 30 Conn. 344.

The only relief that appellant demands in his petition is, that the sheriff's deed to Tillman and the deed from Tillman to Calhoun, as trustee for respondent, be set aside, when respondent in her answer, filed in September, 1874, notified him that she held under the dower contract and the title of the bank and Reid; and she again reiterates her claim in her answer filed on the 28th day of ...