Smith v. Mounts

• Decision Date: 31 May 1827
• Citation: 1 Mo. 714
• Parties: SMITH v. MOUNTS.
• Court: Missouri Supreme Court

1 Mo. 714

SMITH

v.MOUNTS.

Supreme Court of Missouri.

May Term, 1827.

ERROR FROM THE WASHINGTON CIRCUIT COURT.

WASH, J.

This was an action of ejectment, brought by the plaintiff against the defendant, in the Washington Circuit Court. On the trial in the Circuit Court, the plaintiff produced a deed, purporting to have been executed by one John Cooper, conveying to the plaintiff the premises in dispute. The deed was signed by the mark of one John Cooper, and acknowledged before the Judge of the Circuit Court for the Southern Circuit. The premises embraced in the deed are situate in the county of Washington, which forms no part of the Southern Circuit. There were no subscribing witnesses to the deed, and the judge before whom the acknowledgment was taken, had no acquaintance with the person who, in the name of John Cooper, acknowledged its execution, as appears from his deposition preserved in the bill of exceptions. The reading of the deed in evidence was objected to by the defendant in the court below, and was rejected; whereupon there was a verdict and judgment for the defendant; to reverse which judgment the plaintiff prosecutes this writ of error. The errors assigned are, first, the general assignment; and second, that the judge of the Circuit Court refused to let the deed go in evidence to the jury. The points relied on by the defendant in error are, first, that the acknowledgment, at the time it was taken, in 1819, supposing the judge of the Southern Circuit had authority to take it, is not evidence of the due execution of the deed, and the facts proved by the deposition of the judge, do not establish the execution of the deed by the person who has signed it as grantor; second, that the Circuit Judge had no authority to take the acknowledgment of the deed, the land lying out of his Circuit; and a deed not duly acknowledged, though recorded, cannot be read as a recorded deed. The law is clearly with the defendant, on the first point, which renders it unnecessary to decide the second. The judgment of the Circuit Court is, therefore, affirmed with costs.