Riecke v. Westenhoff

• Decision Date: 31 May 1881
• Citation: 10 Mo.App. 358
• Parties: FRANK N. RIECKE, Respondent, v. MARY L. WESTENHOFF ET AL., Appellants.
• Court: Missouri Court of Appeals

10 Mo.App. 358

FRANK N. RIECKE, Respondent,

v.MARY L. WESTENHOFF ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 31, 1881.

1. To overcome the prima facie case made on the certificate of acknowledgment of a married woman, the proof of its untruth, made eight years after the date of the deed, must be clear and convincing.

2. Where such a certificate conforms to the statute, a finding in favor of the validity of the deed will not be set aside, on appeal, merely because the testimony of the married woman and of the notary tends to contradict the statements in the certificate.

3. The owner of real estate may treat any person, on the land and refusing to leave on request, as a dissiesor, and may recover against him in ejectment, though he disclaims having possession, and is a son and member of the family of his co-defendant in ejectment.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

KEHR & TITTMANN, for the appellants: The judgment as to George Westenhoff is against the evidence and the admissions of the pleadings. The pleadings admit and the evidence shows that he was not in possession of the premises, but was living with his mother as a member of her family. Being irregular as to one of the defendants, the judgment should be set aside as to both.-- Covington, etc., Ins. Co. v. Clover, 36 Mo. 392. If the first three instructions given by the court lay down correct rules of law, then upon the undisputed facts established by the evidence, the verdict and judgment should have been for the defendants, and the motion for new trial, in which this point was distinctly made, should have been sustained.-- Wannell v. Kem, 57 Mo. 482; Bohan v. Casey, 5 Mo. App. 107; Sharpe v. McPike, 62 Mo. 300; Steffen v. Bauer, 70 Mo. 397.

BROADHEAD, SLAYBACK & HAEUSSLER, with LEICESTER BABCOCK, for the respondent: In the absence of any evidence indicating fraud or collusion, a certificate duly made and conforming to the statute cannot be attacked in the hands of the grantee, by the unsupported testimony of a grantor.-- Biggers v. Building Co., 9 Mo. App. 210; Sanborn v. McPherson, 88 Ill. 152; Russell v. Baptist Union, 73 Ill. 344; Lickman v. Harding, 65 Ill. 505; Loudon v. Blythe, 27 Pa. St. 25.

BAKEWELL, J., delivered the opinion of the court.

This is ejectment for premises in the city of St. Louis. The answer, besides a general denial, sets up specially that defendant Mary is the widow of Caspar Westenhoff, who, on June 1, 1872, owned the premises, in fee; that he was the head of a family, and, up to his death, occupied the premises as a homestead; that plaintiff's only claim to the title is through a deed of trust purporting to be by said Caspar and defendant his wife, dated June 1, 1872; that defendant Mary was not made acquainted with the contents of the deed by the notary who took the acknowledgment; that she was not examined separate and apart from her husband, nor asked whether she voluntarily executed the deed; that the acknowledgment is therefore void, and that she rightfully occupies the premises; and that her son, defendant George, lives with her as a member of her family. The replication denied the new matter. The cause was tried by a special jury. The verdict and judgment were for plaintiff.

The testimony showed that the deed of trust was taken in good faith by plaintiff as security for an indebtedness of Westenhoff to him. After Westenhoff died, the note being unpaid, the deed of trust was regularly foreclosed, and plaintiff became the purchaser at the sale. The certificate of the acknowledgment to the deed of trust is in the form required by the statute.

Mrs. Westenhoff testified that her husband told her that he had to give a note for $2,000 and a deed of trust to Riecke; that he wanted her to sign it; and that she went down to Babcock's office and did so. Luther Babcock, who took the acknowledgment, was there; she did not know him. Babcock was in a hurry, and told her husband to sign; which he did. Babcock then told her to sign; she could not write; he made her mark, she touching the pen. He said: “You do this with your good will?” She said: “Yes.” He asked her whether her husband had told her all about it; and she said he had. The notary stood, at the time, between the woman and her husband, at the desk. Her husband could hear what was said. No one had told her what was in the paper. She knew her husband owed the money to Riecke, and had given him the $2,000 note for carpenter work and for a lot they had bought. She took it that the deed of trust was to show that her husband owed Riecke so much; but did not understand she was signing away her home. She did not understand that if Riecke should call in the money, and her husband could not pay it, Riecke could sell the property, and put her out. This witness also said that the notary might perhaps have “slightly” read the deed to her. She could not be sure whether he did or not. She explained that by ““““slightly” she meant “hastily.”

The notary testified that Mrs. Westenhoff said that she knew what was in the deed, and signed it freely. His testimony was given eight years after the date of the acknowledgment. He had never seen Mrs. Westenhoff before. He remembered asking the parties to sign, and making her mark. Thinks her husband was in the room; don't know that he was at the desk. The witness asked her if she understood what she was signing. Her husband might have been twenty feet away at the time. Whilst he was taking the acknowledgments each party could hear what the other said. This is the substance of the testimony as to what passed before the notary.

The court instructed the jury that the deed of trust and trustee's deed vest title and right of possession in plaintiff, unless they are satisfied from the evidence that the certificate of acknowledgment is untrue and defective in the manner hereafter stated. No acknowledgment to a deed to which a married woman is a party, conveying land in this State, can be taken unless she shall be first made acquainted with the contents of the deed and shall acknowledge, on examination separate and apart from her husband, that she executes the...