Reed v. Heirs of Austin

• Decision Date: 31 January 1846
• Citation: 9 Mo. 722
• Parties: REED v. THE HEIRS OF AUSTIN.
• Court: Missouri Supreme Court

9 Mo. 722

REED

v.THE HEIRS OF AUSTIN.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO CARROLL CIRCUIT COURT.

ABIEL LEONARD, for Plaintiff.

For the reversal of this judgment, the plaintiff in error will insist upon the following points and authorities: I. An unregistered deed is valid against an execution purchaser, without notice at the time of his purchase, regardless of the question of notice in the judgment creditor. 1st. The object of registry laws is merely to give notice of the state of the title to those who are about to acquire a specific interest in the land, and therefore, though the words be general, and extend to all persons, they must be confined in their application, to persons taking a specific interest in the land, from the same grantor. Upon this principle, a mere trespasser, claiming no title to the land, cannot allege the non-registry of the plaintiff's deed, nor can a defendant in ejectment, claiming the land under a title derived from a different grantor, rely upon that matter to invalidate the opposing title. 2nd. Such being the object of these laws, and the persons to be protected by them, the notice which English equity declares to be equivalent to registry, and which is made so by the express terms of our statute, is a notice at the time of taking the specific interest in the land, which otherwise would be defeated by the unregistered deed. 3rd. A judgment creditor acquires no specific interest in the land of his debtor. He has neither jus in re, nor jus ad rem, but a mere general lien. According to the principles of English equity, he acquires a lien upon the debtor's land, as the title then exists in the debtor's hands, and subject to all the equities then against it. When the land is sold under execution, the purchaser's title relates back to the commencement of the lien, so as to cut out all intermediate incumbrances, but not so as to cut off the equities that existed against the land at the time of the judgment, and of which the purchaser had notice at the time of his purchase. 4th. Under the British statutes, these principles were declared, and administered in the court of chancery. In that court it was declared, that although the statute bound the legal title, the notice bound the conscience of the party taking that title. Our statute declares the unregistered deed valid against the grantor, and those who have notice, and here, therefore these principles have become legal principles, and are to be administered at law. As in equity, an unregistered deed would prevail against an execution purchaser with notice, regardless of the question of notice to the judgment debtor, so now, under our statute, such a deed ought to prevail at law, under the same circumstances. 4 Cruise's Dig. 112, 115, 491, 496, 499, 482-3-4-5-6; Latouch v. Dunnusany, 1 Sch. & Lef. 137, 162; Le Neve v. Le Neve, 3 Atk. R. 646; Forbes v. Deneston, 4 Brown's Ca. Parl. 190; Jackson v. Burgott, 10 Johns. R. 461; Brace v. Duchess Marlborough, 2 P. Williams, 491; in the matter of Howe, 1 Paige's R. 130; Reested v. Avery, 4 Paige's R. 15; Conrad v. Atlantic Ins. Co. 1 Peter's R. 443; 3 Mass. R. Supplement, 573; Rev. Stat. Mass. ch. 59, § 28; 4 Mass. R. 638; Davis v. Blunt, 6 Mass. R. 488; Trull v. Bigelow, 16 Mass. R. 417; Priest v. Rice, 1 Pick. R. 164; Caffen v. Ray, 1 Metcalf's R. 212; Curtis v. Mundy, 3 Metcalf's R. 405. Rhode Island--West v. Rondall, 2 Mason's R. 181. Connecticut-- Welch v. Gold, 2 Roots' R. 287; Moore v. Watson, 1 Roots' R. 387. Maine-- Mathews v. Demeritt, 22 Maine R. 315. New Hampshire--Colby v. Kenneston, 4 N. Hamp. R. 264. New York--Jackson v. Burgott, 16 Johns. R. 461. Pennsylvania-- Lessee of Heister v. Fortner, 2 Binney R. 40. Kentucky--Helm v. Logan, 4 Bibb's R. 78; Campbell v. Mosley, 6 Littell's R. 358; Graham v. Samuel, 1 Dana's R. 166; Morton v. Robards, 4 Dana's R. 260; Hally v. Oldham, 5 Mon. R. 234. Virginia--1 Tucker's Com. 270-71-72; Guerrant v. Anderson, 4 Rand. R. 208. South Carolina-Fort v. Crawford, 1 McCord's R. 268; Reaborne v. Teasdale, 2 Bay's R. 546; Teasdale v. Atkinson, 2 Bay's R. 546.

II. It was competent for the defendant to show that the sheriff sold the two tracts of land separately, and that the tract first sold, yielded enough to satisfy the eight Circuit Court judgments, of the 3rd of April, 1839, that were older than Caton's deed of the 24th April, 1839, and which deed is itself older than the seven justice's transcripts of the 22nd of May, 1839; because, 1st. The sale of the first tract (the northwest quarter of section 8), satisfied the eight executions that had been levied upon the land embraced in the sheriff's deed, according to the recitation of the levy in that deed, and thereupon these executions ceased to confer any authority upon the sheriff to sell the other tract; and the subsequent sale of that tract was void, unless the sheriff had other authority to sell, and did in fact sell under such authority. Ex-parte Lawrence, 4 Cowen, 417; Clarke v. Withers, 1 Salk. 322; Hoyt v. Hudson, 12 Johns. 207; Wood v. Torrey, 6 Wend. 562. 2nd. The other seven executions conferred no authority upon the sheriff to sell on account of the invalidity of the justice's judgments, upon which they were issued; and if they did confer such authority, it was never exercised, the fair construction of the deed being, that the sale was made under the eight executions which it expressly recites were levied upon the land, and not that it was made by virtue of executions never levied. 3rd. The eight Circuit Court judgments being older, and the seven justice's transcripts younger, than the defendant's deed from the judgment debtor, if the defendant is excluded from showing the facts offered by him in evidence, the consequence is, that the younger judgments are by the mere act of the officer, tacked to the elder judgments, and the lien of the deed thus squeezed out; and in this manner the defendant is stripped of his property by the act of the officer, of which he had no notice, and against which he has had no opportunity of defending himself.

III. The deed of the 3rd of April, 1839, was made in pursuance of the canceled title bond of 1838, and ought to relate back to the date of the bond, so as to cut out the incumbrance of the intermediate judgment, and vest the legal title, as against the purchasers under that judgment, in the grantee from the date of the title bond.

STRINGFELLOW, for Defendants.

1st. The judgments rendered by the justice are valid, and the transcripts were properly admitted in evidence. The sum for which judgment was rendered, being stated in figures, with the $, is sufficient. The $, whether it be regarded as an abbreviation, cipher, symbol or a part of the English language, has a meaning as fixed, certain and definite, as the word “dollar,” or any other word in our language. Its use has been adopted, and its meaning recognized, by not only the whole people of this country, but by the Legislatures, of this State, and by every court, from the lowest, to this the most exalted judicial tribunal in the State. Statute 1835-6, title Fees; Morris & Lenox v. Martin, 8 Mo. R. 253. In this case, an account setting out the amount claimed in figures, with the $, was sustained. See records of this court.

2nd. An insufficient notice will not avoid a judgment. If the court have jurisdiction of the judgment. If the court have jurisdiction of the subject matter, and the defendant notice of the proceedings, the judgment will not be void, however irregular, or erroneous the proceedings. Montgomery v. Farley & Robinson, 5 Mo. R. 233; Griffin & Kinote v. Samuel, 6 Mo. R. 50; Perryman et al. v. State, to use of Relfe, 8 Mo. R. 209; McNair et al. v. Biddle et al. 8 Mo. R. 264.

Judgments by confession, need only be in writing where there is no service of process. A confession of judgment, on service of process, cures all defects in the service. Davis v. Wood, 7 Mo. R. 162.

3rd. But admitting the judgments before the justice to be voidable, they cannot be impeached, nor can titles acquired under them be impaired in a collateral proceeding; and much less, in such a proceeding, in which neither of the parties to the judgment are interested. McNair et al. v. Biddle et al. 8 Mo. R. 264.

4th. The records of the judgments of the Carroll Circuit Court, were properly admitted in evidence. Though for costs alone, without setting out any specific amount, they were valid. It is submitted, that in no court, when a cause is dismissed, will the judgment specify the amount of cost. See records of this court.

5th. The docket of the Circuit Court judgments and decrees, was evidence of the time at which the transcripts were filed. Rev. Code, 1835-6.

6th. The paper offered in evidence by Reed, the defendant below, to show title out of Austin, was properly rejected. First. It did not purport to be a copy of the deed attempted to be set up. Second. The witnesses all proved that it was not a copy. Third. The witnesses all testified that the canceled deed was a mere title bond; the copy offered was of a deed of bargain and sale. Fourth. The canceled deed was destroyed by the parties thereto, and a new deed made in its place. A deed thus canceled, cannot be set up by a party thereto, and much less by one having no interest therein. Commonwealth v. Dudley, 10 Mass. R. 403; Holbrook v. Tirrell, 9 Pick. R. 105; Farrar v. Farrar, 4 N. Hamp. R. 194; 13 Mass. R. 499.

7th. Evidence of the destruction, and contents of the deed to James Reed, was inadmissible. First. For the reasons last above given. Second. Because the evidence proved it to have been a mere title bond, or a bond to make a deed; and this gave but a mere equitable title, which could not be set up in ejectment. 1 Johns. R. 114; 2 Johns. R. 221, 321; 8 Johns. R. 487.

8th. The deed to the Reedsburg Company was not admissible. It could not be made to revert to, and hold under the title bond to James Reed; and being made after the rendition of the...