Spitznagle v. Vanhessch

• Decision Date: 08 December 1882
• Citation: Spitznagle v. Vanhessch, 13 Neb. 338, 14 N.W. 417 (Neb. 1882)
• Parties: GUSTAVE SPITZNAGLE, PLAINTIFF IN ERROR, v. CHRISTINA VANHESSCH AND OTHERS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

14 N.W. 417

13 Neb. 338

GUSTAVE SPITZNAGLE, PLAINTIFF IN ERROR, v. CHRISTINA VANHESSCH AND OTHERS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

December 8, 1882

ERROR to the district court for Richardson county.Tried below before WEAVER, J.

AFFIRMED.

A. R Scott and A. Schoenheit, for plaintiff in error.

1.Deeds were inadmissible.Comp. Stat., 387, sec. 2.Dickerson v. Davis,12 Iowa 353.Becker v. Anderson11 Neb. 497.

2.The deeds were not conveyances so as to pass title.At best they were, as a matter of equity, only contracts to convey.Barr v. Hatch, Ohio, 3, 527, 528.Carr v. Williams et al., 10 Ohio 305.

3.The plaintiff in error was not liable for the enhanced rent of the premises caused by improvements put thereon by his own labor.Adkins v. Hudson,19 Ind. 392.Nixon v Porter,38 Miss. 401.Neale v. Hagthrop, 3 Bland (Md.), 551.

E. W. Thomas and Amos E. Gantt, for defendants in error, on admissibility of deeds cited: 2 Wait's Actions and Defences, 499.Ready v. Kearsley,14 Mich. 215.Meriam v. Harsen, 2 Barb. Ch., 232.Dennis v. Tarpenny,20 Barb. 371.Dovar v. Cardwell,27 Ind. 478.Title of defendants in error was good.Possession was evidence of title.Ward v. McIntosh,12 O. St., 231.O'Brien v. Wetherell,14 Kan. 622.Keane v. Cannovan,21 Cal. 292, 305.Sherin v. Larson,28 Minn. 523.Burt v. Panjaud, 99 U.S. 180.

OPINION

LAKE, CH. J.

Christina Vanhessch, formerly Christina Eckstein, as the widow, and her co-defendants in error, as the children and heirs at law of Henry Eckstein, deceased, were plaintiffs in the court below, and brought their action to recover from the plaintiff in error the land in controversy, [together with damages for its occupation and use], of which the said Henry died possessed, and claiming to be the owner in fee, about the year 1866.The plaintiff in error claimed the title to the land by virtue of tax proceedings culminating in a tax deed executed by the treasurer of Richardson county on the 13th day of September, 1878.

A large number of errors are formally assigned, but in this opinion we shall notice only those discussed by counsel for the plaintiffs in error, in their brief.

It having been stipulated by the parties on the trial that the land in question had been duly patented by the United States to Juliette Barrada, through whom Henry Eckstein claimed title, two deeds were offered in evidence for the purpose of tracing the title from the said Juliette to him.These deeds were objected to on the ground that the certificates of acknowledgment did not show a compliance with the statute, which requires that the grantor in a deed of real estate "must acknowledge the instrument to be his voluntary act and deed."Sec. 2, chap. 73., Comp. Statutes.

To the first of these deeds the certificate is that, the grantors personally appeared, etc., "and acknowledged that they executed the same;" and to the other, that they appeared, "and acknowledged that it was their voluntary act," omitting the words "and deed."The first of these acknowledgments is clearly defective.It is wanting in that which is evidently of the very essence of the statutory requirement, viz., that the execution of the instrument was voluntary on the part of the grantors.It is true that the exact words of the statute are not indispensable to a good certificate of acknowledgment; provided, however, that the full meaning intended to be conveyed by them is otherwise clearly expressed.But, either the language of the statute, or other of like import, must be used.Wickersham v. Reeves, 1 Iowa 413.Owen v. Norris, 5 Blackf. 479.Becker v. Anderson, 11 Neb. 493, 9 N.W. 640.This deed was inadmissible.

As to the other certificate, however, we must hold that it was not vitiated by the omission of the words "and deed," and was therefore properly admitted in evidence; but, being unsupported by valid proof of a conveyance to the grantor therein, it was valueless.The reason for our holding the omission of these words to be unimportant is, that the evident object of the statute is fully attained without them.The design of the provision clearly is to guard the action of a grantor in the execution of a conveyance of his property and to have the assurance of his own admission, in a preservable form, that it was not induced by compulsion, or other improper influence, but was the result of his own free choice.Besides, inasmuch as the completed deed is but the result of the grantor's action--an act accomplished--if that action be voluntary, the deed, or act itself, must necessarily be so too.But we might...