Williams v. Butterfield

• Decision Date: 31 May 1904
• Citation: 81 S.W. 615,182 Mo. 181
• Parties: WILLIAMS, Appellant, v. BUTTERFIELD et al
• Court: Missouri Supreme Court

81 S.W. 615

182 Mo. 181

WILLIAMS, Appellant, v. BUTTERFIELD et al

Supreme Court of Missouri, Second Division

May 31, 1904

Appeal from Stoddard Circuit Court. -- Hon. F. R. Dearing, Special Judge.

Reversed and remanded.

H. S Shaw and J. R. Young for appellant.

The deeds to Wolfenden and respondents were not constructive notice to Williams; in fact, the deed to respondents is not proven: First. The acknowledgment is not according to statute. R. S. 1899, sec. 908. Second. There is no certificate to the acknowledgment recognized by statute. R S. 1899, sec. 911. Third. Respondents' deed was not entitled to record because not proven or acknowledged. R. S 1899, secs. 823, 9062. Fourth. A deed with a defective acknowledgment and improperly recorded is not constructive notice and the loss falls on the grantee. Bishop v. Shrinder, 46 Mo. 480; Terrell v. Andrew Co., 44 Mo. 309, 13 L. R. A. 235.

Robert L. Wilson and M. A. Dempsey for respondents.

As between the parties to a deed no acknowledgment is necessary. Section 3118, Revised Statutes 1899, cures any defect of acknowledgment there may be. Wilson v. Albert, 89 Mo. 537; Mitchner v. Holmes, 117 Mo. 185. Respondents are purchasers in good faith for value. As against them Bohlcke, and appellant claiming through him, are estopped from impeaching the deed to Wolfenden. Draper v. Bryson, 26 Mo. 108; Barret v. Baker, 136 Mo. 512; Vance v. Corrigan, 78 Mo. 94.

OPINION

FOX, J.

The statement of the facts, and the legal propositions involved arising by reason of said facts, were very clearly and concisely stated in the former consideration of this case; by permission that statement is adopted. It is as follows:

"This is an action to quiet the title to section eleven, township twenty-six, range twelve, in Stoddard county, Missouri. The court dismissed the bill and rendered judgment in favor of defendants for costs. Plaintiff appeals.

"Henry Bohlcke is the common source of title, the plaintiff claiming under and directly from him, and defendants through mesne conveyances. On the thirteenth day of December, 1888, Henry Bohlcke was the owner of said land, and he testified that day he signed a deed to said land, leaving a blank for the name of the grantee, after which the word, 'trustee' was written, and delivered it to Francis J. Peters. The consideration for the deed was also left blank.

"Francis J. Peters testified that at Bohlcke's request, he traded the land in question for stock in a certain Electrolytic Gas Generator Syndicate of Detroit, Michigan, which was received by him, and that thereafter Bohlcke wrote to him to know to whom to make the deed, and, that it was decided with the consent of one Mr. Wolfenden that he should take title to the land as trustee for one Mr. Wood, and did so, and the deed was made accordingly. That he saw the deed after it was sent by Bohlcke to Wolfenden, and that it was duly acknowledged and in regular form, but that he never had it, and knew nothing of its whereabouts.

"This deed, testified to by Peters, was acknowledged by Catharine Bohlcke, the wife of Henry Bohlcke, before a notary public in Stoddard county, Missouri, on the thirteenth day of December, 1888, and filed for record in the recorder's office of said county on the eleventh day of January, 1889. It does not appear from the record of the deed, as copied in the bill of exceptions, that it was ever acknowledged by Henry Bohlcke, though there was extrinsic evidence tending to show that it was, and that thereafter the certificate of acknowledgment was canceled.

"The consideration received by Bohlcke for the land was some worthless stock, purporting to be shares in a mythical concern which in fact never had any existence. This deed was afterwards attempted to be set aside in a suit by Bohlcke against Wolfenden for that purpose.

"On the thirteenth day of April, 1889, Frederick Wolfenden, as trustee, conveyed by warranty deed to the defendants, Olivia F. Butterfield and John Abbott, section 29, township 24, of range 12 east, but what place this deed has in this record is beyond our comprehension, as it does not describe the land involved in this litigation. Defendants, however, claim to own the land, and the petition alleges that it was conveyed by Wolfenden to defendants John Abbott and Olivia F. Butterfield.

"It is asserted by plaintiff that the deed from Bohlcke to Wolfenden is void because no grantee was named in it at the time of its delivery by Bohlcke to Peters. In other words, it is void because delivered to Peters in blank.

"But the weight of the evidence is to the effect, and the court so found, that the deed of Wolfenden was not in fact delivered to Peters in blank or otherwise, but was made directly to Wolfenden, in whose possession Peters testified that he thereafter saw it, and that it was in due form and properly executed.

"This deed seems to be an entirely different one from the deed which Bohlcke testified he delivered to Peters, and we are inclined to believe it is, if in fact he did deliver the deed in blank to Peters as he claims to have done. From this standpoint it becomes entirely unnecessary to pass upon the question presented by plaintiff as to the invalidity of the deed in blank which it is claimed Bohlcke delivered to Peters.

"The original deed from Bohlcke and wife to Wolfenden purports to have been signed by them on December 13, 1888, and there is some extrinsic evidence that it was acknowledged by Henry Bohlcke, but so far as the record before us discloses, the acknowledgment of Mrs. Bohlcke alone appears upon the deed. It was filed for record with the certificate of acknowledgment by her in the recorder's office of Stoddard county, Missouri, on the eleventh day of January, 1889. The certificate of acknowledgment of Henry Bohlcke was not recorded, for the reason, as the evidence tended to show, that the certificate of acknowledgment as to him had been erased or canceled. The original deed was not produced at the trial."

OPINION.

There is but one vital proposition involved in this cause, presented for our consideration. That is this: Was the record of the deed from Bohlcke and wife to Wolfenden, embracing the land in dispute, admissible in evidence in this cause for the purpose of fixing constructive notice upon plaintiff of the sale of the land prior to his (plaintiff's) purchase?

The record of this deed, as offered in evidence, does not show any certificate of acknowledgment by Henry Bohlcke, the grantor in said deed. Under the statute, it must be conceded that this deed was not entitled to be recorded, by reason of the absence of such acknowledgment. [Sec. 2418, R. S. 1889.]

It follows from this, if the general rule is applicable to this deed, that in the absence of the certificate of acknowledgment required by the statute, it had no place upon the land records of Stoddard county, and if improperly recorded, would not impart constructive notice to a subsequent purchaser in good faith, for a valuable consideration. [Secs. 2419 and 2420, R. S. 1889; Bishop v. Schneider, 46 Mo. 472; Terrell v. Andrew Co., 44 Mo. 309.]

It is contended by respondents, and doubtless the learned trial judge concurred in such contention, that this deed was admissible in evidence, for the reason that the absence of the required statutory acknowledgment was cured by the...