Rust v. Goff

• Decision Date: 05 March 1888
• Citation: 7 S.W. 418,94 Mo. 511
• Parties: RUST et al. v. GOFF.
• Court: Missouri Supreme Court

7 S.W. 418

94 Mo. 511

RUST et al. v. GOFF.

Supreme Court of Missouri.

March 5, 1888.

1. DEED — PRESENT CONVEYANCE — CONTRACT TO CONVEY — CONSTRUCTION.

When an instrument is in form a deed of general warranty, and undertakes and does convey a certain portion of land out of a larger tract described, the addition of the words that the grantors bound themselves, "at some time, as soon as said deed could be made for" said land "to the grantee," would not have the effect of converting into a contract to convey what the instrument shows was absolutely conveyed.

2. HUSBAND AND WIFE — ACKNOWLEDGMENT OF DEED — SEPARATE EXAMINATION OF WIFE.

The certificate of acknowledgment of a deed by a man and his wife, in an action for possession by one claiming under the grantee in the deed, although prima facie evidence of a compliance with the law, may be impeached by showing that the wife

was not examined separate and apart from her husband, as recited in the certificate, and without showing fraud or knowledge of this fact on the part of the grantee in the deed, or those claiming under him.

3. SAME.

Where a certificate of acknowledgment of a deed, by a man and his wife, is impeached by showing that the deed was not acknowledged by the wife, as required by law, since the deed does not affect her title, nor the marital rights of the husband to possession, the husband is the only proper party in a suit for possession of the land.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Ejectment by John S. Rust et al. against William Goff. Plaintiffs recovered judgment, and defendant appealed.

Johnson & Lucas, for appellant. Henry N. Ess and Lipscomb & Rust, for respondents.

NORTON, C. J.

This is a suit in ejectment to recover possession of certain land in Jackson county, in which the plaintiffs had judgment, from which defendant has appealed. It appears from the evidence that one Magowan Pake died in Jackson county in 1868, leaving his widow, Nancy J., and two minor children, named Carrie and Emma; that at the time of his death he owned 100 acres of land, a part of which is involved in this suit; that in August, 1871, the said widow married defendant Goff, and in February, 1872, Emma, one of the minor children, died, leaving her mother, the said Nancy J., and her minor sister, Carrie, her only heirs. In support of plaintiffs' title, they put in evidence the following writing:

"GENERAL WARRANTY DEED.

"This indenture, made on the 9th day of June, A. D. 1875, by and between William Goff and Nancy J. Goff, his wife, of the county of Jackson, state of Missouri, parties of the first part, and Lafayette Thouvenell, of the county of Jackson, in the state of Missouri, party of the second part, witnesseth, that said parties of the first part, in consideration of the sum of five hundred dollars, to be paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents grant, bargain, sell, convey, and confirm unto the said party of the second part, his heirs and assigns, the following described lots, tracts, or parcels of land, lying, being, and situate in the county of Jackson and state of Missouri, to-wit: All of sixteen and two-thirds acres (16 2/3) of land lying and being situated in the county of Jackson and state of Missouri, to be hereafter located, but now undivided, to-wit: The said sixteen and two-thirds acres is out of the following tracts or sections: the east half of north-east quarter of section number seventeen, and the west half of the north-east quarter of the south-west quarter of section number twenty-two; all in township number forty-eight, (48,) range thirty-three, (33,) it being the estate of Magowan Pake, deceased. And we, as heirs of Magowan Pake, bind ourselves, at some time, as soon as said deed can be made for the sixteen and 2/3 acres to the said Lafayette Thouvenell or his assigns. To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances, and immunities thereto belonging, or in anywise appertaining unto the said party of the second part, and unto his heirs and assigns forever; the said Nancy J. Goff and William Goff hereby covenanting that they, as heirs, are lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that they have good right to convey the same; that the said premises are free and clear of any incumbrances done or suffered by them, or those under whom they claim; and that they will warrant and defend the title to the said premises to the said party of the second part, and unto his heirs and assigns forever, against the lawful claims and demands of all persons whomsoever.

"In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written.

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