Ryan v. Carr

• Decision Date: 31 October 1870
• Citation: 46 Mo. 483
• Parties: EDMUND RYAN, Plaintiff in Error, v. MUNSON CARR, Defendant in Error.
• Court: Missouri Supreme Court

46 Mo. 483

EDMUND RYAN, Plaintiff in Error,

v.MUNSON CARR, Defendant in Error.

Supreme Court of Missouri.

October Term, 1870.

Error to Second District Court.

Ewing & Holliday, and Conger, Reynolds & Relfe, for plaintiff in error.

I. The deputy sheriff had full authority to make the deed (Ter. Laws, 618, § 10, Geyer's Dig.); and even if no express authority were given by law, yet the making up of the deed was a ministerial act, and could be performed by a deputy. (Lewis v. Lewis, 9 Mo. 188.)

II. The defect, if any, in the certificate is cured by section 36, chapter 143, p. 595, Wagn. Stat., which is but a recognition of the old doctrine, that an ancient document proves itself, extended to cases in which the original instrument is lost, so as to include the record thereof. (1. Greenl. Ev., §§ 20, 21.)

Detchemendy & Emerson, for defendant in error, urged among others the following points:

I. A sheriff's conveyance must strictly comply with all the requirements of the statute, otherwise it is void. (Morton v. Reed, 9 Mo. 878; Williams v. Payton, 4 Wheat. 77; Parker v. Rule's Lessee, 9 Cranch, 64.)

II. The so-called sheriff's deed was not the act of the then sheriff, Daniel Dunklin, and is therefore void, as the law then in force required the sheriff, and not a deputy, to make and acknowledge deeds for land sold under execution. (1 Ter. Laws, 120, § 45; Geyer's Dig. 269, §§ 72-4; Evans v. Ashley, 8 Mo. 177; Alexander & Betts v. Merry, 9 Mo. 514.)

BLISS, Judge, delivered the opinion of the court.

In 1820, the person from whom the plaintiff claims title to the land in controversy purchased the same at sheriff's sale. Before the levy and sale, but while the judgment lien existed, the judgment debtor conveyed the land to the person from whom the defendant derives title, and the only question now to be considered is the validity of the sheriff's deed. It was ruled out below, and the plaintiff insists that the court therein committed error.

The statutes in force at the time of this sale (Ter. Laws, 121) then, as now, required that sheriffs' deeds should be acknowledged in the courts of the districts where the lands lie, and that the clerks of the courts should indorse upon every deed acknowledged by any sheriff a certificate of such acknowledgment, under the seal of the court, and to enter on the minutes a description of the lands and tenements sold, etc. The transcript from the record of the deed shows an indorsement of a certificate of acknowledgment made six years after the execution of the deed, but the certificate is not under the seal of the court, and it purports that the sheriff executed and acknowledged the instrument, when the deed was, in fact, executed by his deputy. There are other irregularities not necessary to be noticed, as the acknowledgment and certificate are so clearly defective that the only question to be considered pertains to the validity of a sheriff's deed when not acknowledged or certified.

A private deed, though defectively acknowledged, or even not acknowledged at all, is good between the parties and against subsequent purchasers with notice; and under our statute (Wagn. Stat. 595, §§ 35-6), the record of such deed, previous to December 12, 1855, would doubtless impart constructive notice. (See Stevens v. Hampton, 46 Mo. 404, and Bishop v. Schneider, 46 Mo. 472.) And in Indiana it is held that the deed of a sheriff, otherwise conforming to the law, is good as against the execution defendant, although not acknowledged. (Doe ex dem. Wayman v. Naylor, 2 Blackf. 32; Dixon v. Doe ex dem. Lasalle, 5 Blackf. 106.) The Supreme Court of that State applied to sheriffs' deeds the rule applicable to deeds between private parties, for the reason doubtless that no special provision is there made by statute for the acknowledgment of such deeds, leaving them to the operation of the law applicable to all conveyances.

But, as we have seen, the requirements of our statute were special and imperative, and it has always been considered that...