McClure v. McClurg

Decision Date31 July 1873
Citation53 Mo. 173
PartiesCHARLES MCCLURE, Respondent, v. J. W. MCCLURG, Appellant.
CourtMissouri Supreme Court

Appeal from Greene Circuit Court.

J. S. Phelps, for Appellant, relied on Allen vs. King, 35 Mo., 216; Scruggs vs. Scruggs, 41 Mo., 242; Ryan vs. Carr, 46 Mo., 483; Adams vs. Buchanan, 49 Mo., 64; Payne vs. Collier, 6 Mo., 321.

J. P. Ellis, for Respondent.

I. This acknowledgment was taken, according to its terms, before “the Judge of the Greene Circuit Court and not before the court itself, as is required. (W. S., 612, §§ 55, 56.)

II. The record of acknowledgment made by the Circuit Clerk cannot be introduced to sustain the deed. (Samuels vs. Shelton, 48 Mo., 444; Allen vs. King, 35 Mo., 225; Scruggs vs. Scruggs, 41 Mo., 242; Ryan vs. Carr, 46 Mo., 484; Adams vs. Buchanan, 49 Mo., 64.)

SHERWOOD, Judge, delivered the opinion of the court.

Action of ejectment brought in the Greene Circuit Court by Charles McClure against J. W. McClurg. Petition and answer in usual form.

Both parties claim under John Thurman, as the common source of title. The plaintiff read in evidence a deed from Thurman to Samuel Prophet, dated July 17th, 1867, for the land in controversy, and also a deed for the same land, from Prophet to the plaintiff.

The defendant offered to read in evidence a deed to himself for the land sued for from the Sheriff of Greene county, dated September 1st, 1863, reciting a judgment recovered against Thurman, the common source of title, the issuance of execution, the levy of the same on said land, and the sale of the land to defendant after due advertisement, etc., etc.

The plaintiff objected to the introduction of this deed in evidence, on the ground, that it had not been acknowledged in open court.

The certificate of acknowledgment was in this form:

STATE OF MISSOURI,
)
ss.
County of Greene,

)

Be it remembered that on this 3d day of October, 1863, personally appeared before the Judge of the Greene Circuit Court of Greene county, Missouri, Thomas A. Reed, Sheriff of said county, and acknowledged that he executed the foregoing deed as Sheriff aforesaid, for the uses and purposes therein contained, which said acknowledgment is entered on the records of said court of said date, in record book “F,” page 222.

In witness whereof, I, M. J. Hubble, Clerk of said court have hereunto set my hand and seal, this 3d day of October, A. D., 1863.

SEAL

M. J. HUBBLE, Clerk.

By E. M. HENDRICK, D. C.

The defendant then offered in aid of such deed the record of the Greene Circuit Court, showing that the deed had been acknowledged by the Sheriff in open court, which record entry was in the usual form. The court refused to permit the deed, and the entry of its acknowledgment, to be read in evidence, and defendant excepted, and judgment being given for the plaintiff the defendant, after moving unsuccessfully for a new trial, brings this cause here by appeal.

There was no error in refusing to admit the record in aid of the certificate of acknowledgment. The certificate, as its very name imports, must be within and of itself complete, and no extrinsic evidence can be invoked to eke out its recitals. This was so held in Samuels vs. Shelton, 48 Mo., 444.

It only remains to pass upon the sufficiency of the certificate of acknowledgment, now before us. In the case just cited the certificate, among other things, recited that the sheriff “executed and delivered a deed to David Malanix,” and it was there held that the phrase “a deed” was a mere...

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31 cases
  • Edwards v. City of Cheyenne
    • United States
    • Wyoming Supreme Court
    • April 3, 1911
    ... ... to be exercised, are essential to complete the idea of a ... court. ( State v. Woodson, 161 Mo. 444; McClure ... v. McClurg, 53 Mo. 173; People v. Barratt, 9 ... N.Y.S. 321; Dunn v. State, 2 Ark. 229; Loree v ... Abner, 57 F. 159; Whie Co. v ... ...
  • Hatcher v. Hall
    • United States
    • Missouri Court of Appeals
    • July 13, 1956
    ...41, p. 815; 1 Am.Jur., Acknowledgments, Section 49, p. 333], we do not impose 'hypercritical requirements of technical nicety' [McClure v. McClurg, 53 Mo. 173, 175] in concluding, as we do, that 'no rational liberality of construction can cure' [Cabell v. Grubbs, 48 Mo. 353, 357] the patent......
  • The State ex rel. Klotz v. Ross
    • United States
    • Missouri Supreme Court
    • November 9, 1893
    ... ... order concerning that power. This is exemplified by a number ... of cases, and denied by none. Thus in McClure v ... McClurg , 53 Mo. 173, it was held that the false recital ... that, the certificate of acknowledgment of a sheriff's ... deed was taken ... ...
  • Hammond v. Coleman
    • United States
    • Missouri Court of Appeals
    • July 3, 1877
    ...McCamant v. Patterson, 39 Mo. 106. Acknowledgment of sheriff's deed.-- Allen v. Moss, 27 Mo. 364; Samuel v. Shelton, 48 Mo. 444; McClure v. McClerk, 53 Mo. 173. In the absence of proof, it is presumed that a deed is not delivered until it is acknowledged.-- Fontaine v. Boatmen's Savings Ins......
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