Stevens v. Hampton

• Decision Date: 31 August 1870
• Citation: 46 Mo. 404
• Parties: BENJAMIN J. STEVENS, Defendant in Error, v. JOHN A. HAMPTON et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

46 Mo. 404

BENJAMIN J. STEVENS, Defendant in Error,

v.JOHN A. HAMPTON et al., Plaintiffs in Error.

Supreme Court of Missouri.

August Term, 1870.

Error to Fourth District Court.

Carr, for plaintiffs in error.

I. Plaintiff in error is a bona fide purchaser for a reasonable consideration, without notice, and as such he is entitled to be protected. (Sto. Eq., §§ 165, 381, 409-10; Grisley v. Thayer, 23 Wend. 388; James v. Johnson & Morey, 6 Johns. Ch. 417.)

II. The deed of trust executed by Hobson to John E. Lockwood, to secure Hoffner, having been recorded first, secured the first lien on the property in controversy. (R. C. 1855, §§ 40-43, ch. 72, p. 364; Waldo v. Russell, 5 Mo. 387; Bellas v. McCarty, 10 Watts, 13; Vaughan v. Tracy, 22 Mo. 415; Beattie v. Butler, 21 Mo. 322; Williamson v. Brown, 15 N. Y. 354.)

III. Plaintiff in error is protected as a purchaser under Hoffner, although she may have purchased with actual notice of the first deed of trust. (Fort v. Burch, 5 Denio, 187.)

IV. The mis-recital of the note will not vitiate said deed of trust. (Scott v. Bailey, 23 Mo. 150; Shirras et al. v. Craig et al., 7 Cranch, 34; Jackson v. Bowen, 7 Dana, 13; 4 Dana, 406; 5 Dana, 530; 8 Johns. 455.)

V. The recording of the first deed of trust after the second, but before the sale under the second, is no notice, actual or constructive, to the cestui que trust in the second deed of trust. (Stuyvesant v. Hall, 2 Barb. 158; Truscott v. King, 6 Barb. 346; Bushell v. Bushell, 1 Scho. & Lef. 90; Leibey v. Wolf, 10 Ohio, 83; Halstead v. Bank of Kentucky, Marsh., Ky., 558; Wiseman v. Westland, 1 Young & Jervis, 117; Bedford v. Bachhouse, W. Kelynge, 5.)

VI. The acknowledgment of the grantor to the first deed of trust was taken by Edward A. Lockwood, the trustee, to himself. It was not proved by any subscribing witnesses. The record of it was not in pursuance of any law, hence it did not impart any notice to any person.

Redd, for defendant in error.

I. Plaintiff in error, to entitle her to protection against plaintiff's elder title, must show either that she is a bona fide purchaser for a valuable consideration without notice of plaintiff's elder title, or that her grantor is a purchaser bona fide for a valuable consideration without notice. She has failed to show either.

II. The filing of the deed of trust from Hobson to Edward A. Lockwood, on the 29th of March, 1861, to secure the payment of the purchase money due to plaintiff, imparted notice to defendant of the existence and contents of the deed and of plaintiff's equity under it. (R. C. 1855, ch. 92, p. 364, § 41; 1 Sto. Eq., § 403; Johnson v. Stagg, 2 Johns. 514, 522; Jackson v. Post, 15 Wend. 594; Jackson v. Paige, 4 Wend. 591; Tuttle v. Jackson, 6 Wend. 226; Frost v. Buckman, 1 Johns. 298; Parkhurst v. Alexander, id. 398.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff brings ejectment for certain land near the city of Hannib and both parties claim under one Carmi Hobson, and were purchasers at sales under different deeds of trust executed by him. The one under which the plaintiff claims was given in June, 1859, to Edmund A. Lockwood, as trustee, to secure the plaintiff in certain notes for the purchase money, and, some months after, was acknowledged before the said trustee. It was not, however, filed for record until March, 1861, and in the meantime--to-wit: on the 28th day of July, 1860--said Hobson executed another deed of trust to John A. Lockwood, trustee, purporting to secure a note given to one Hoffner for $1,050, but in fact given to secure said Hoffner as security upon such note to a third person, which last deed was immediately recorded. In August, 1861, which was after the first deed was recorded, the defendant, Mrs. Hampton, purchased at a trustee's sale under the deed last executed but first recorded, and the purchase money was applied to extinguish the note for which the beneficiary, Hobson, had become liable; and in 1864 the plaintiff purchased under a sale made by his trustee.

We must treat the deed to Edmund A. Lockwood, trustee, and acknowledged before him, as though never acknowledged, unless we assume that a party to a deed may take its acknowledgment, which will not be seriously claimed. There are several cases where an acknowledgment was attacked upon the ground of interest in the party taking it, and in every case the incompetency of a grantee is assumed. In Groesbeck v. Seeley, 13 Mich. 329, the court says: “We should have no hesitation in holding that a person could not take the acknowledgment of a deed made to himself. Such a point is too plain for doubt.” Dussaume v. Burnett, 5 Iowa, 95, seems to recognize, on page 103, the doctrine that the party to the instrument can not take its acknowledgment; and in Wilson v. Traer & Co., 20 Iowa, 231, an acknowledgment before one of the grantees is expressly held to be void. The court, in Beaman v. Whitney, 20 Me. 413, speaks of an acknowledgment before a grantee “as at most a void acknowledgment, leaving the deed operative between the parties,” etc. Withers v. Baird, 7 Watts, 227, was an action of covenant to recover the price of a tract of land, and the defense was that no sufficient deed had been tendered. It appeared that the plaintiff, who had agreed to make the deed, obtained one from one Baxter and wife, who held the title, which was made directly to the defendant and acknowledged before the plaintiff. The court, per Gibson, J., held the acknowledgment to be insufficient to bar the dower of Baxter's wife, as the duties of a magistrate in regard to her separate examination are judicial, and can not be performed by a party interested.

On the other hand, Lynch v. Livingston, 6 N. Y. 422, and Kimball v. Johnson, 14 Wis. 674, seem to recognize a contrary doctrine, although I think there is no real conflict. In the former case an ordinary acknowledgment was held to be a ministerial act, and hence did not come under the prohibition against the action of judges or jurors who were relatives of the parties. In the latter case a mortgage was given to a married woman to secure her for money loaned which belonged to her separate estate, and was acknowledged before her husband. In regard to his action the court simply says: “We do not think on that account he was disqualified from taking it.” In this case the husband was not a party to the instrument, and could have no interest in the separate estate of the wife; and the court doubtless treated his action as ministerial, and not affected by his relationship to the grantee.

In the cases referred to, where the acknowledgment was held invalid, the party taking it was, or was supposed to be, a party in interest. I have found no case where it was taken by a trustee; and perhaps there might be ground for holding that where the grantee was a mere naked trustee, the title, by the statute of uses, vesting at once in the beneficiary, the acknowledgment should be held to be valid. But trustees to hold in pledge, with power of sale, stand in a very different relation. The objection to the party in interest is analogous to the one forbidding a judge to pass upon his own case. Though the act may not be strictly judicial, it is of a judicial nature and requires disinterested fidelity. We know that in practice this kind of trustee is always selected by the beneficiary; he is controlled by the beneficiary in fixing the time of the sale, and its proceeds come into his hands. There is such an interest that, as to the requisites of the deed itself, he should be placed upon a level with the other parties, and be incapacitated from holding any official relation to its execution.

The want of a proper acknowledgment does not, however, invalidate the deed, but only goes to the effect of the record. If not acknowledged or proved, its record is not provided for by law, and the fact that it may be copied upon the book of records will not operate as constructive notice to subsequent purchasers. (Dussaume v. Burnett, 5 Iowa, 95; Lessee of Schultz v. Moore, 1 McLean, 520; Barney v. Sutton, 2 Watts, 31; Hastings v. Vaughan, 5 Cal. 315; Price v. McDonald, 2 Md. 403; Johns v. Scott, 5 Md. 81.) The deed, however, is good as between the parties, and should prevail against subsequent deeds to those who had actual notice of its existence. (Dussaume v. Burnett, supra;...