Muldrow v. Robison

• Decision Date: 31 October 1874
• Citation: 58 Mo. 331
• Parties: WILLIAM C. MULDROW, Appellant, v. DAVID M. ROBISON, Respondent.
• Court: Missouri Supreme Court

58 Mo. 331

WILLIAM C. MULDROW, Appellant,

v.DAVID M. ROBISON, Respondent.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Shelby Circuit Court.

Anderson & Boulware with Manville & Burlingame, for Appellant.

I. The language in section 40, (Wagn. Stat., 596) to-wit: “Any writing, instrument or deed, purporting to affect any real estate or any right or interest in or to the same,” is descriptive of an instrument which of its own force operates either in law or in equity on the title, and does not include within its terms any other. (Patterson vs. Fagan, 38 Mo., 83.) A naked or common power of attorney is not such an instrument. The extent of its operation is the appointment of an agent, and it is revocable at the pleasure of the principal; it is revoked eo instanti by his death. Said section 40 is “ in pari materia” with the Recording Act and should be construed as part thereof. Upon this rule rests the construction given to said section by this court in Garrison vs. Barry, (28 Mo., 449, 450). The language used in section 24 of the Recording Act (Wagn. Stat., 277), “Every instrument in writing, whereby any real estate may be affected in law or equity,” is of the same import as that used in said section 40 of the act concerning evidence. That the language used in said section 24 of the Recording Act was not understood or intended by the legislature to include common powers or letters of attorney, is made manifest by the fact that special provision is made for letters of attorney in section 27 immediately thereafter following; and by the further fact, that by the very language of said section 27, “Every instrument whereby real estate may be affected in law or equity,” is placed in manifest contradistinction to “Every letter of attorney or other instrument containing a power to convey real estate as agent or attorney.”

The proposition that sections 24, 25, and 26 of the Recording Act were not intended to embrace common powers of attorney, is further strengthened by the consideration that said sections were first adopted in Revised Code of 1835, (§ 30 et seq., p. 123) in lieu of section 13 et seq. of Revised Code of 1825, p. 221, and that said section 21 of the Recording Act, (R. S. 1865) was first adopted in Revised Code of 1835, in lieu and place of section 15 of R. C. 1825, p. 221. In the Code of 1825 the instruments, for the recording of which provision is made, are specifically named, and each one operates either in law or in equity by its own force upon the title.

In place of the specific enumeration of instruments as in Code of 1825, we now have in said section 24 general language descriptive of the same instruments. The same remark is true with reference to the relation sustained by section 27 of the present law to said section 15 of the Code of 1825. Sections 29 and 30 of the present Recording Acts can apply to powers of attorney in one state of facts only, and that is where the power of attorney is made part of the deed, and as such recorded with it.

II. If it should be held that section 40 embraces powers of attorney within its terms then said section is to be construed in connection with sections 24, 25 and 26 of said Recording Act, and as operating only on records made in compliance therewith. (Garrison vs. Barry, 28 Mo., 449.) Said section 40 applies to the record of the county where the land is situated.

III. Open and notorious possession of land is not notice, to subsequent purchasers, of the occupant's title, even if knowledge of such possession be brought home to such purchaser. If the purchaser had knowledge of such possession, it may be, that from that fact a presumption of notice will arise. Even then it is a presumption of fact, and not of law, and like all other presumptions of fact may be rebutted by showing the truth. It may also be that the fact of open and notorious possession will raise the presumption (of fact) that the purchaser had knowledge of such possession. If this be true, it is also true that this presumption may be rebutted. The possession, to have any force as evidence tending to prove actual notice, must be an open and notorious possession. (Vaughn vs. Tracy, 22 Mo., 417; Vaughn vs. Tracy, 25 Mo., 320; Beattie vs. Butler, 21 Mo., 313; Maupin vs. Emmons, 47 Mo., 304.) In this case there was no such possession.

IV. Neither the recording of the alleged power of attorney from William Muldrow to John Muldrow, in Marion county, nor the recording in Shelby county of the alleged deed from William Muldrow by John Muldrow to Gray, operated to give plaintiff constructive notice of the alleged title of defendant.

Manville & Burlingame, for Appellant.

I. The copy offered is not a transcript from the records at Shelby county, in which the land is situated, (Wagn. Stat., 277, §§ 24, 27, 30) and its admission was not authorized by law. It is not a transcript of a record in the meaning of the statute. No such paper spread upon the books is a record, except as to lands in the county in which it is recorded. (Gwynn vs. Frazier, 33 Mo., 90.)

II. The existence of an executed original had not been proved. “The best evidence of which the case is susceptible, must be produced,” and secondary evidence of the contents of a deed “was inadmissible without proof of the previous existence and loss of the deed.” (Smith vs. Phillips, 25 Mo., 557; Gould vs. Trowbridge, 32 Mo., 293; Atwell vs. Lynch, 39 Mo., 519; Dail vs. Moore, 51 Mo., 590; Briggs vs. Henderson, 49 Mo., 533.)

III. But even if defendant had produced in evidence the original power of attorney, of which the paper offered purports to be a copy, he must fail in his defense, under the provisions of the registry law, for want of legal notice. (Wagn. Stat., 277, §§ 24, 26, 27; Thornton vs. Miskimmon, 48 Mo., 223; Bowman vs. Lee, Id., 336; Terrell vs. Andrew County, 44 Mo., 312; Aubuchon vs. Bender 44 Mo., 564; Youngblood vs. Vastine, 46 Mo., 243.)

IV. Section 27, page 277 of Wagner's Statutes paces letters of attorney upon the same footing with “other instruments of writing, conveying or affecting real estate.” The original power of attorney not having been recorded, the question arises, did plaintiff have “actual notice thereof.” The burden of proof of the fact of notice rested on the defendant.

V. There is no evidence that plaintiff had notice of any of the facts given in evidence, and relied on as proof of notice; but a knowledge of these facts brought home to plaintiff would not constitute actual notice. Plaintiff had no knowledge of any fact that would prompt him to inquire about the title to the land.

VI. By giving instruction No. 3 and refusing No. 1, the court virtually declared, that the power of attorney might be “properly recorded” without being recorded in the county in which the real estate to be affected thereby is situate. This would render nugatory section 24 of the Registry Act.

J. C. Hale, for Respondent.

I. The certified copy of Marion Co. record of power of attorney of William Muldrow to John Muldrow and the deed made thereunder to M. L. Gray was properly admitted in evidence, it being shown by the testimony of the plaintiff, that William Muldrow (the father and grantor of plaintiff) was, at the time of the record of said power of attorney in Marion county, residing on, and claiming as his own, certain lands in Marion county; and it being further shown that the said original power of attorney was beyond the reach and control of defendant, and that he, defendant, through his agents and attorney had made necessary effort to obtain same. (Wagn. Stat., ch. 54, § 40, Ed. 1872.)

II. The whole question here turns upon the power of John Muldrow to convey, and upon the notice plaintiff had of defendant's claim under such power; and the certified copy is prima facie evidence of the execution of said instrument. Plaintiff might have introduced testimony to show that original was never executed, or that the copy offered in evidence was not a true copy. (Wagn. Stat., § 34, ch. 54.)

III. Proof of actual knowledge is not necessary, but the jury may infer it from knowledge of facts that naturally suggest it. (47 Mo., 304.) Notice is actual where the purchaser either knows of the existence of the adverse claim or title, or is conscious of having the means of knowing although he may not use them. (40 Mo., 405; 48 Mo., 219-222-3; 35 Mo., 71.)

IV. Possession is not actual notice as a matter of law, but is competent to go to the jury, on which, if satisfied, they may find actual notice. (22 Mo., 415; 25 Mo., 318; 3 Washb Real Prop., 283-4.) If the plaintiff bought the lands in dispute with a knowledge of his father's former transactions in sale of lands in north-east Missouri, and with the fact staring him in the face that defendant had told him that M. L. Gray of St. Louis owned them, he had sufficient notice to put him on his inquiry, and if he bought without further inquiry he bought with actual notice. (4 Mo., 62-66.)

M. L. Gray, for Respondent.

I. The deed of Wm. Muldrow (by John Muldrow, his attorney in fact,) and his wife to M. L. Gray, was so executed and acknowledged as to entitle it to be recorded. (Wagn. Stat., pp. 273, 274, 275, §§ 7, 9, 13, 24.) By section 29 of same act it was entitled to be read in evidence.

II. The deed of Wm. Muldrow to M. L. Gray was notice to all the world of its contents. (Wagn. Stat., p. 277, § 25; 10 Mo., 34; 47 Mo., 374.)

III. The action of the court in admitting the certified copy of the power of attorney from Wm. to John Muldrow was correct. A deed purporting to be the deed of Wm. Muldrow by John Muldrow, claiming to be his attorney in fact, had been recorded in 1850. And of this deed plaintiff had rull notice; i. e. the fact of its acknowledgment and record was, as we have shown, notice to him of its contents. In the certificate of the acknowledgment of said deed, the clerk states he knows that John Muldrow is attorney in fact of Wm. Muldrow from a power of attorney recorded in his office in ...