Robinson v. Nolan

• Decision Date: 12 December 1889
• Citation: 54 S.W. 469,152 Mo. 560
• Parties: Robinson et al. v. Nolan et al., Appellants
• Court: Missouri Supreme Court

54 S.W. 469

152 Mo. 560

Robinson et al. v. Nolan et al., Appellants

Supreme Court of Missouri, Second Division

December 12, 1889

Appeal from Douglas Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed and remanded.

Wm. O Mead and T. T. Loy for appellants.

(1) The certified copy of the power of attorney should have been excluded for the reason that it was not acknowledged before any officer authorized by the laws of this State to take acknowledgments. R. S. 1889, sec. 2403. A deputy clerk can take an acknowledgment in the name of his principal only, and never in his capacity of deputy alone. Springer v McSpadden, 49 Mo. 299. (2) The power of attorney in evidence does not meet the requirements of sections 4858 to 4865, R. S. 1889, to entitle it to prove its own execution. It was never recorded in Douglas county. Gwyn v Frazier, 33 Mo. 89; Aubuchon v. Murphy, 22 Mo. 115. (3) The deed here sought to be reformed was not made by Quinces R. Nolan and wife, nor by any one purporting to act for them, but by Jackson P. Nolan and wife. No witness or other evidence was offered to prove that he intended, or pretended to execute such deed for, or on behalf of Quinces R. Nolan and wife, other than a deed executed the same day and attempted to be acknowledged before the same officer for an undivided half of the same land. This not only failed to prove that Jackson P. Nolan intended to convey the title of Quinces R. Nolan and wife, as attorney in fact, but is conclusive evidence that he did not intend to do so. For why execute the two deeds, one by himself and wife for an undivided one half, and one for an undivided one-half as attorney for Quinces R. Nolan and wife both being made at the same time and acknowledged before the same officer? Where is the testimony to support the decree of the trial court? There is none.

A. H. Livingston for respondents.

(1) The power of attorney is in all things regular and valid, being duly acknowledged in the State of Georgia by an officer authorized to do so under the laws of this State. Appellants seem to want to mislead by stating that the acknowledgment was taken by a deputy clerk, but this position is without any fact to support it, and is contradicted by the record. It is acknowledged by a clerk of a court, with a seal, and this is all that is requisite under our statute. (2) Jackson P. Nolan had no interest in these lands except the power to convey under his letters of attorney. The law presumes he intended to convey by his written authority, and that he intended to convey all the interest he had, because he had no other interest in the land, and could convey no other interest. Kearney v. Vaughan, 50 Mo. 284; 1 Dembitz on Land Titles, pp. 414 and 415. (3) Respondents have paid all taxes on the lands for more than twenty years, and it would be unjust and inequitable to allow appellants to rest in silence all this time, and then come in on a mere denial, and recover.

BURGESS, J. Gantt, P. J., concurs; Sherwood, J., absent.

OPINION

BURGESS, J.

On the sixteenth day of December, 1865, Quinces R. Nolan and his wife Antoinette C. Nolan executed to Jackson P. Nolan a power of attorney to sell lands of which Quinces R. Nolan was the owner, including the land in Douglas county, Missouri, which is involved in this litigation.

The power of attorney was acknowledged before Julian A. Arkin, department clerk of the Inferior Court of Henry county, Georgia, on the day of , 1865, and attested by the seal of said court. It was recorded in the recorder's office of Vernon county, Missouri, where a part of the lands embraced therein are located, in January, 1869.

On the seventeenth day of October, 1870, Quinces R. Nolan and his wife Antoinette, by their attorney in fact, executed a deed in due form to Wm. T. Cessna, by which they conveyed to him all of the undivided one half interest in sections 18 and 30 township 26, range 11, and sections 13 and 24 of township 26, range 12, containing 2,554 acres more or less in Douglas county, for the consideration of $ 638.59. On the same day and for the same expressed consideration Jackson P. Nolan and Lizzie C. Nolan, conveyed in their own right, to said Cessna the one undivided interest in the same land, and it is claimed by plaintiff, and the petition alleges, "that said deed failed and omitted to declare or recite the fact that the said Jackson P. Nolan was conveying said land under letters and power of attorney, when in fact and in truth he conveyed said land as an attorney in fact. That the deed by reason of the fact aforesaid conveyed to said Wm. T. Cessna an equitable title only when it was intended by and between the said Jackson P. Nolan and Wm. T. Cessna, that the legal title should be conveyed by...