Wilcoxon v. Osborn

• Decision Date: 30 April 1883
• Citation: 77 Mo. 621
• Parties: WILCOXON v. OSBORN et al., Appellants.
• Court: Missouri Supreme Court

77 Mo. 621

WILCOXON

v.OSBORN et al., Appellants.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Nodaway Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

Johnston & Jackson for appellants.

John Edwards for respondents.

MARTIN, C.

This was a suit in equity, commenced on the 23rd day of May, 1877, for the purpose of enforcing the right of redemption to a parcel of land in Nodaway county, containing eighty acres. The plaintiffs obtained possession a few months before the suit. The defendant, Lewis Osborn, denied the plaintiffs' title and set up a title in himself, starting from a source common with the plaintiffs' source of title. He also claimed the absolute title by virtue of an occupation and possession for a sufficient length of time to bar the plaintiffs' claim of title and vest himself with the fee. The other defendants admitted the allegations of their petition and joined with the plaintiffs in their prayer for relief.

At the trial the plaintiffs put in evidence the record title of both sides. I will briefly notice these chains of title relied on by the parties, respectively. The chain of title is as follows: A patent from the State of Missouri to Nodaway county, conveying certain swamp lands including the parcel in dispute, dated June 26th, 1869, made in pursuance of the act of the legislature of March 10th, 1869; next a deed from Nodaway county, by its commissioner, to Isaiah Wilcoxon and Mark Murphy, dated June 4th, 1860, recorded November 28th, 1860, the name of the grantor being left out of the certificate of acknowledgment; this deed purports to have been made in fulfillment of a contract of purchase given to Chas. B. Lee, February 21st, 1856, by the county, which contract, or certificate, had been assigned to Wilcoxon and Murphy; next, a mortgage deed of said Wilcoxon and Murphy to Nodaway county, dated June 4th, 1860, securing a loan of $100 from the school fund, this mortgage providing for sale by the sheriff in the default of payment of principal or interest of the loan; next, a warranty deed by Mark Murphy and wife to George H. Wilcoxon, dated April 6th, 1861; and conveying an undivided half of the land; next a deed by Isaiah Wilcoxon's administrator to George H. Wilcoxon, dated April, 1861, and acknowledged and recorded on the 6th and 9th of April, 1861. By virtue of these deeds it is claimed that the title to the land vested in George H. Wilcoxon, subject to the mortgage to the county to secure the $100 borrowed from the school fund, June 4th, 1860. He died intestate on the 8th day of April, 1863, and left seven children, all minors, four of whom are plaintiffs, viz: Sallie, Marion, Josephine and John, and three are defendants, viz: Amanda, Anna and Alfred.

The adverse title, under which the defendant, Osborn, claims the land, forks out from the plaintiffs' chain of title through the mortgage of June 4th, 1860, given to secure the loan from the school fund, and runs as follows: 1st, The sheriff's deed to Nodaway county, acknowledged August 16th, 1865, reciting the mortgage of June 4th, 1860, an order of the county on the sheriff to sell on account of a default in the mortgage, and a sale to said county on the 14th day of August, 1865, at public vendue, for $17; next, a deed by said county, through its commissioner, to Nathan Paton, acknowledged and recorded August 17th, 1865; next, a deed of said Paton and wife to Richard Boatman of the 8th day of October, 1866; next, a deed from said Boatman to Jacob Roth of the 12th day of October, 1868; next, a deed of said Roth to Lewis Osborn, defendant, of the 4th day of March, 1870.

From other testimony introduced, it appears that after the death of George N. Wilcoxon, in 1863, who had resided on the land with the plaintiffs, who were his children, his widow sold her dower right in the land and improvements, which consisted of three cabins and a mill, to Edward Spencer, and removed with the children to Iowa, thence to Southwest Missouri, and afterward to Kansas; that the children first heard of their interest in the land in 1876 from a person who came to them in Kansas for a quitclaim deed; that they returned with their mother, and finding the land unoccupied and the improvements all taken off, put up a tent on it, and entered into peaceable possession of it in January, 1877, which possession they continued to hold, having since their entry built a log cabin on it for their residence.

As to the possessory title of defendant, it seems that after the deed of the county to Paton of August 17th, 1865, the land was possessed and occupied first by him, then by Boatman, his vendee, under deed of October 8th, 1866, then by Jacob Roth, his vendee, under deed of October 12th, 1868, who occupied it as proprietor until his sale to his brother-in-law, Lewis Osborn, March 4th, 1870. Osborn is a non-resident, and Roth continued in possession for him till 1876, when he removed the fence which constituted the only improvement left on the place at that time. After that time the place seems to have remained vacant until the entry of the plaintiffs in January, 1877.

On this evidence the court, on the 29th day of January, 1878, rendered a decree in favor of the plaintiffs, and the defendant, Alfred Wilcoxon, permitting them to redeem under the mortgage of June 4th, 1860, mentioned in the petition, five-sevenths of the land, by payment to defendant Osborn of the sum of $330, being five-sevenths of the amount due on the mortgage and for taxes. Amanda and Anna, defendants, were held to be barred by the statute of limitation. The defendant Osborn has, for himself, prosecuted this appeal.

I. The defendant insists, in his brief, that the only right the ancestor of the plaintiffs ever had in the land was a right to purchase in pursuance of the certificate of purchase of February 21st, 1856, which Wilcoxon and Murphy acquired from Charles B. Lee. It is denied in the answer that Wilcoxon and Murphy borrowed $100 from the school fund to complete the purchase, or that the bond and mortgage given by them on the 4th day of June, 1860, were given to secure a loan of that amount of the school fund. On the contrary, it is averred that the mortgage of June 4th, 1860, was in truth given by them to secure the purchase money for the land called for in the certificate of purchase, and that said purchase money has never been paid, and that the plaintiffs and their ancestor abandoned the right to a deed under said certificate, and have lost all right to have a deed from the county in pursuance thereof.

This position cannot be maintained in face of the evidence disclosing the character of the transaction with the county. The evidence goes to show that the certificate was surrendered as paid, and that the mortgage was to secure a loan from the school fund. The mortgage recites the language of the bond it was given to secure, and that language declares it was given to secure a debt payable to the use of the school fund. This recital, which is binding on the county, sustains the position of the plaintiffs that enough was borrowed from the school fund to pay for the land, and that the mortgage was given to secure the loan, and not the purchase money. This suit is brought to redeem the land from this mortgage, and not to pay the purchase money and complete the purchase. The plaintiffs clearly have no right of purchase. If they have anything at all it must be an estate in the land.

II. I will first consider the record title and estate of plaintiffs. The defendant assails two deeds in the plaintiffs' chain of title, viz: the deed of the county by Commissioner Bickett to Wilcoxon and Murphy of June 4th, 1860, made under the swamp land act, and purporting to convey the whole title, and the deed of Isaiah Wilcoxon's administrator to George H. Wilcoxon, of April, 1861, for an undivided half of the land.

1. DEED: certificate of acknowledgment.

In respect to the first mentioned deed, it is claimed that the acknowledgment of the commissioner is defective, because he is not mentioned by name in the certificate of acknowledgment. The clerk certifies that “personally appeared ______, who is personally known to me to be the same person whose name is subscribed to the within and foregoing conveyance as having executed the same as party thereto, and in the capacity therein set forth, and acknowledged the same to be his act and deed for the purposes therein mentioned. In testimony whereof,” etc. His name as grantor of the deed is subscribed to it, and appears in the body of the deed. A certificate must be construed with reference to the deed it is attached to, and the deed is always allowed to help out the construction of the certificate. Martindale on Conveyances, § 259; Samuels v. Shelton, 48 Mo. 444; McClure v. McClurg, 53 Mo. 173; Carpenter v. Dexter, 8 Wall. 515; Chandler v. Spear, 22 Vt. 388; Wells v. Atkinson, 24 Minn. 161; Sharpe v. Orme, 61 Ala. 263; Middleton v. Findla, 25 Cal. 80. The material requisite of an acknowledgment is complied with, when it appears from the certificate, that the grantor of the deed appeared before the officer and acknowledged it to be his act and deed. I think it sufficiently appears from this certificate that it was the grantor and no one else who appeared and acknowledged it. Under the strict ruling in Lincoln v. Thompson, 75 Mo. 613, this certificate would be good. In that case one name was subscribed to the deed, and another one mentioned in the certificate, so that an apparent contradiction was presented on the face of the instrument. In this case no such contradiction appears. The certificate does not formally recite the name of the person making the acknowledgment, but declares that it was the grantor, and that, I am satisfied, is sufficient.

III. The deed of the county, of June 4th, 1860, by its commissioner, is objected to by the defendant on the ground that the county could not, by commissioner or otherwise, sell any swamp land without payment of the...