Williams v. Butterfield

• Decision Date: 24 November 1908
• Citation: 114 S.W. 13,214 Mo. 412
• Parties: WILLIAMS v. BUTTERFIELD et al.
• Court: Missouri Supreme Court

114 S.W. 13

214 Mo. 412

WILLIAMS v. BUTTERFIELD et al.

Supreme Court of Missouri, Division No. 2.

November 24, 1908.

1. ACKNOWLEDGMENT (§ 5) — UNACKNOWLEDGED DEED—RIGHT TO RECORD.

A deed having no certificate of acknowledgment by the grantor is not entitled to be recorded under Rev. St. 1889, § 2418, providing that every instrument conveying real estate acknowledged in the manner prescribed by law shall be recorded.

2. ACKNOWLEDGMENT (§ 5) — UNACKNOWLEDGED DEED—EFFECT OF RECORD—CURATIVE ACT.

Laws 1887, p. 183 (Rev. St. 1899, § 3118 [Ann. St. 1906, p. 1778]), providing that records of unacknowledged deeds made one year before the law takes effect shall impart notice to all persons, does not apply to an unacknowledged deed not recorded a year prior to the passage of the act.

3. ESTOPPEL (§ 72)—EQUITABLE ESTOPPEL— ACTS MAKING INJURY POSSIBLE.

Where one of two innocent persons must suffer by the act of a third, he who has enabled such third person to occasion the loss must sustain it.

4. VENDOR AND PURCHASER (§ 231)—BONA FIDE PURCHASER—NOTICE.

One purchasing real estate is chargeable with notice of the record of deeds in the chain of title.

5. VENDOR AND PURCHASER (§ 231)—BONAFIDE PURCHASER—NOTICE.

A purchaser of real estate obtained from the owner a warranty deed duly acknowledged. He promptly filed the same for record, paid the recording fees, and received a certificate that the deed had been duly recorded. A line was drawn through the acknowledgment on the record. A subsequent purchaser from the owner did not see the record, but relied on his abstract, which contained facts calling for an examination of the title, and such examination would have revealed the prior deed. Held, that under Rev. St. 1899, § 924 (Ann. St. 1906, p. 846), providing that every instrument recorded in the manner prescribed shall impart notice to all persons, etc., the subsequent purchaser was chargeable with constructive notice of the prior deed.

6. VENDOR AND PURCHASER (§ 231)—BONA FIDE PURCHASER—NOTICE.

Under Rev. St. 1899, § 924 (Ann. St. 1906, p. 846), providing that every instrument recorded in the manner prescribed shall impart notice to all persons of the contents thereof, a subsequent purchaser is chargeable with constructive notice of a deed properly acknowledged and recorded, though the record has been entirely destroyed, or has been mutilated by some unauthorized person drawing a line through the acknowledgment, or by the carelessness of the recorder.

7. EVIDENCE (§ 415)—PAROL EVIDENCE—MUTILATION OF DEED.

The fact that a deed, the record of which has been destroyed or mutilated by some unauthorized third person drawing a line through the acknowledgment, or by the carelessness of the recorder, was duly acknowledged and recorded, may be established by parol.

8. APPEAL AND ERROR (§ 1214)—REVERSAL— NEW TRIAL—SCOPE OF ISSUES.

Where the Supreme Court adjudged that the record of a prior deed imparted no notice to a subsequent purchaser because it was not acknowledged by the grantor, and remanded the cause for a new trial that defendant might have an opportunity to introduce any other evidence and to show whether the subsequent purchaser had actual notice of the prior deed, the court on the new trial properly received in evidence the record of the prior deed, on it appearing that it had been duly acknowledged and entitled to record under Rev. St. 1889, § 2418.

9. APPEAL AND ERROR (§ 1195)—REVERSAL— EFFECT OF DECISIONS AS LAW OF THE CASE.

On the subsequent trial of a cause remanded for new trial, the court is bound only by the decision of the Supreme Court on appeal to the extent that, on the same facts being proved, it must follow such decision.

10. ACKNOWLEDGMENT (§ 60)—EVIDENCE OF FACT OF ACKNOWLEDGMENT.

Evidence held to justify a finding that a deed had been duly acknowledged, and hence entitled to be recorded, so that its record was constructive notice under Rev. St. 1899, § 924 (Ann. St. 1906, p. 846), to a subsequent purchaser.

Appeal from Circuit Court, St. Francois County; C. A. Killian, Judge.

Action by E. J. Williams against Olivia Butterfield and others. From a judgment for defendants, plaintiff appeals. Affirmed.

See 182 Mo. 181, 81 S. W. 615.

Martin L. Clardy and Jno. F. Green, for appellant. Robt. L. Wilson, M. P. Dempsey, and Edward A. Rozier, for respondents.

FOX, P. J.

This is an action brought in the circuit court of Stoddard county, Mo., to quiet the title to certain lands in Stoddard county, to wit, section 11, township 26, range 12, east.

The amended petition states in substance that on the 13th of December, 1888, Henry Bohlcke was the owner of the said lands, and that on that date one Francis J. Peters falsely and fraudulently represented to Henry Bohlcke, with intent to deceive him, that he was the duly authorized agent of the Electrolytic Gas Generator Syndicate of Detroit, Mich., to sell the stock of said syndicate; that said syndicate was duly incorporated under the laws of Michigan, and had a paid-up stock of $1,000,000, and would be one of the most prosperous syndicates in the country; that an investment in said stock would bring to the investor quick and larger profits than any other investment possibly could. That said Henry Bohlcke, relying wholly upon the said representations of said Peters, and having no knowledge of the value of said stock, accepted as truth what Peters had said, and, having no means of obtaining any information as to the value thereof, agreed to sell said real estate to said Peters for three shares of the capital stock of said syndicate, and at the same time said Bohlcke and wife made out and acknowledged a deed to said land, leaving the consideration clause blank, and the space in which the grantees' name was to be written was equally blank, and in that condition the said deed was delivered to said Peters, said Bohlcke's acknowledgment first having been erased, and in return for said deed said Peters delivered to said Henry Bohlcke three shares of the stock of said syndicate. That said deed was not to be recorded, nor the grantee's name placed therein, until said Bohlcke could investigate said syndicate, and said deed was delivered to said Peters merely as an evidence of a contract to be afterwards performed. That said land was to be conveyed to a trustee, the conditions of which trust were to be afterwards determined and decided upon when said trade was finally consummated. That all of the statements made by said Peters were false, and were made for the sole purpose of deceiving said Bohlcke and procuring said real estate; that no such corporation as the Electrolytic Gas Generator Syndicate was ever organized under the laws of Michigan, and the said syndicate and its seven shares were wholly fictitious, and of no value, and were so known to said Peters at the time of said transfer, and that said Bohlcke never received any other consideration from said Peters, or from the defendants, for the said land, except said worthless shares. That, after said deed was so delivered in said condition to said Peters, said Peters wrote, or caused to be written, the name of Frederick Wolfenden as grantee in said deed, but left the consideration clause blank, and in said condition he caused said deed to be recorded in book 8, p. 362, of the deed records of Stoddard county, Mo. That said Wolfenden knew or might have known of the facts above related by the use of ordinary care. That afterwards, on the 27th of March, 1889, the pretended conveyance was pretended to be executed, designing to purport to convey said real estate by said Wolfenden to the defendants, John Abbott and Olivia L. Butterfield, which said pretended deed is recorded in the deed records, of Stoddard county, in Book W, p. 351, but plaintiff states that said Wolfenden is a fictitious person and did not exist. That defendants at the time knew of said related facts and of the fraud practiced on said Bohlcke in obtaining said deed from him. That afterwards, on the 15th of December, 1893, defendant John Abbott and wife executed a mortgage on said real estate to defendant Charlotte J. Walker, recorded in book Z, p. 608, of the records of Stoddard county, but that said Charlotte knew of the above related facts and of the fraud employed in obtaining said deed from said Wolfenden. That afterwards, on the 3d of March, 1893, upon and after due process of law, said Bohlcke obtained a judgment against Frederick Wolfenden on account of said fraud, divesting said Wolfenden of the title of said land and vesting the same in Henry Bohlcke. That on the 2d day of April, 1894, said Bohlcke and wife conveyed said real estate to the plaintiff, Edward J. Williams, and said plaintiff Edward J. Williams paid a valuable consideration for said real estate, and knew nothing of the claims or pretended claims on the part of any defendant, but believed that he was getting a good and valid title to said real estate; that he knew of none of the pretended conveyances above recited, or of any claims on the part of the defendants, and had no knowledge or information which would lead him to believe there were any claims to said real estate at that time other than those of said Henry Bohlcke. That plaintiff paid taxes on said real estate from and after said conveyance until 1897, believing that he had title thereto, and defendants knew that he was paying said taxes in good faith, and did not inform him of other claims; that defendants were therefore estopped by said silence from setting up claims against said plaintiff. There was a prayer that the rights and interests of the respective parties be determined and defendants divested of any title they have acquired in said real estate, and the title be declared in the plaintiff. The defendant Olivia Butterfield filed a general denial of the said petition, and alleged she was the owner of said property sued for, and had paid for the same in good faith. The case was tried in the circuit court...