Scruggs v. Scruggs

• Decision Date: 31 July 1867
• Citation: Scruggs v. Scruggs, 41 Mo. 242 (Mo. 1867)
• Parties: JOHN W. SCRUGGS, Plaintiff in Error, v. JAMES SCRUGGS and NAPOLEON B SCRUGGS, Defendants in Error.
• Court: Missouri Supreme Court

41 Mo. 242

JOHN W. SCRUGGS, Plaintiff in Error,

v.JAMES SCRUGGS and NAPOLEON B SCRUGGS, Defendants in Error.

Supreme Court of Missouri.

July Term, 1867.

Error to First District Court.

The clerk's entry on the record was as follows:

“W. P. Kerr, sheriff of Cole county, this day comes into court and acknowledges the execution of a deed of conveyance, conveying from him as sheriff to James Mahan the west half,” &c.

The certificate of acknowledgment endorsed on the deed from the sheriff to Mahan was as follows:

“State of Missouri, County of Cole.--Be it remembered, that on the 25th day of May, A. D. 1847, personally appeared the above mentioned W. D. Kerr before the Circuit Court in and for the county of Cole, and in open court acknowledged the above and foregoing instrument of writing, as sheriff of said county, to be his act and deed for the purposes therein contained and mentioned; he, the said Kerr, being personally known to said court as sheriff of said county, and the person whose name is subscribed to the above and foregoing instrument of writing, as having executed the same.In testimony,” &c.--G. A. Parsons, clerk, by Rob't Kyle.D. C. (Seal).”

Ewing & Smith, for plaintiff in error.

I.This is a valid and sufficient certificate of acknowledgment in all respects--R. C. 1845, p. 485, § 50;Id. p. 222, § 21;Allen v. King, 35 Mo. 216;Crowley v. Wallace, 12 Mo. 143.

II.Possession to be of any avail under the statute of limitations must be adverse and hostile to the claim or claims of all the world--32 Mo. 558;34 Mo. 44;22 Mo. 267;28 Mo. 483; Ang. on Lim. 478 et seq. & 443.

Geo. T. White, for defendants in error.

As plaintiff's vendor never had possession of the land, but it was proved to have been always in the possession of defendants, there can be no pretence that he should have any sort of right to recover under his deed of purchase--Gray v. Givens, 26 Mo. 291-300;Carter v. Scaggs, 38 Mo. 302;Shafer v. Shoot, 25 Mo. 203;Gay v. Moffit, 2 Bibb, 506;Carondelet v. Simon et als., 37 Mo. 408;Cottle v. Sydnor, 10 Mo. 760;Menkins v. Ovenhaus, 22 Mo. 75 & 266;Bollinger v. Chouteau, 20 Mo. 94;Layson v. Galloway, 4 Bibb, 100;5 Serg. & R. 236;Biddle v. Mellon, 13 Mo. 335.

WAGNER, Judge, delivered the opinion of the court.

Ejectment brought by plaintiff for a tract of land in Cole county.The defence set up and relied on was the statute of limitations.On the trial in the Circuit Court the jury found for defendants, and judgment was rendered accordingly.The case was then taken to the District Court, where the judgment was affirmed, and from that decision the plaintiff prosecutes his writ of error.

At the trial in the Circuit Court, the plaintiff, for the purpose of deducing title, offered and read in evidence a deed made by the sheriff of Cole county to one Mahan, who afterwards conveyed all the title which he acquired to the premises by virtue of the said sheriff's deed to plaintiff.This deed was subsequently excluded from the consideration of the jury by an instruction of the court, and this action of the court in giving the instruction (which is numbered ten in the defendants' series) is the principal error complained of by the plaintiff.The reason assigned for the exclusion of the deed is based on an assumed insufficiency of the certificate of acknowledgment, and in this connection the point is raised that the clerk of the court failed to make the proper statutory entry on the record at the time of making the acknowledgment by the sheriff, and that this failure or clerical error constitutes a fatal defect.Sec. 50,R. C. 1845(which governs this action), under the title of Execution, provides that every officer executing any deed for lands, tenements, or hereditaments, sold under execution, shall acknowledge the same before the Circuit Court of the county in which the estate is situated.Section 51 declares that the clerk of the court shall endorse upon such deed a certificate of acknowledgment or proof under the seal of the court, and shall make entry of such acknowledgment or proof, with the names of the parties to the suit and a description of the property conveyed.

The certificate of acknowledgment endorsed on the deed states that the sheriff personally appeared before the Circuit Court in and for Cole county, in open court,...