Springer v. McSpadden

• Decision Date: 31 January 1872
• Citation: 49 Mo. 299
• Parties: R. F. SPRINGER, plaintiff in Error, v. M. M. MCSPADDEN, Defendant in Error.
• Court: Missouri Supreme Court

49 Mo. 299

R. F. SPRINGER, plaintiff in Error,

v.M. M. MCSPADDEN, Defendant in Error.

Supreme Court of Missouri.

January Term, 1872.

Error to Dent Circuit Court.

R. P. & C. C. Bland, for plaintiff in error, cited Touchard v. Crow, 20 Cal. 150; Muller v. Boggs, 25 Cal. 175; Abrams v. Erwin, 9 Iowa, 87; Lynch v. Livingston, 2 Seld., N. Y., 422; Hope v. Sawyer, 14 Ill. 254; McCraven v. McGuire, 23 Miss. 100; Gibbs v. Gray, 20 Mo. 468; Cook v. Knight, 28 Texas, 85; 5 Com. Dig. 13; Rol. Abr. 591; 1 Salk. 96; Allen Sheriffs, 76-8; Lynch v. Simpson, 8 Barr, S. C., 463; 2 Seld. 432.

A. J. Seay, for defendant in error.

The acknowledgment by the deputy in the case at bar does not comply with the statute. There is no certificate by the officer taking the acknowledgment that the parties making the acknowledgment were personally known to him. But he certifies that they are well known to his principal. (See Garnier v. Barry, 28 Mo. 438.) It nowhere appears in the statute that the deputy ever had any authority of this kind, but the language of the statute is “clerk,” not “deputy clerk.” (Wagn. Stat. 259, § 16.) It provides that deputies may be appointed, and “may, in the name of their principals, perform the duties of a chief clerk.” But it is not one of the duties of a chief clerk to take acknowledgments, but simply one of his perquisites. Failing or refusing to do so, would he be liable to the party complaining on his official bond? (Wagn. Stat. 258, § 5.)

WAGNER, Judge, delivered the opinion of the court.

In the progress of the trial in the court below it became necessary for the plaintiff to introduce in evidence a certain mortgage, which was objected to by the defendant on the ground that it was not properly acknowledged. The objection was sustained by the court and the mortgage excluded, and this constitutes the alleged error in this case.

The acknowledgment is in due form, and it was taken and certified by the deputy of the circuit clerk in the name of the principal. It is now claimed that the acknowledgment was fatally defective; that the deputy had no right to take the same, and that no one but the principal in his own proper person could perform that act. The statute enacts that every clerk may appoint one or more deputies, who shall be at least seventeen years of age, and have all other qualifications of their principals, and take the like oath, and may, in the name of their principals, perform the duties of a chief clerk. (Wagn. Stat. 259, § 16.) Section 12 of the chapter in relation to conveyances (Wagn. Stat. 275) designates how the certificate of acknowledgment shall be granted, and declares that when granted by the clerk of a court it shall be under the hand of the clerk, and seal of the court of which he is clerk. Section 13 requires the person making the acknowledgment to be personally known to the officer taking the same, and the succeeding sections provide for proving the identity of the grantor by subscribing witnesses where he is not personally...