Williams v. Lobban

• Decision Date: 01 July 1907
• Citation: 206 Mo. 399,104 S.W. 58
• Parties: WILLIAMS v. LOBBAN.
• Court: Missouri Supreme Court

104 S.W. 58

206 Mo. 399

WILLIAMS v. LOBBAN.

Supreme Court of Missouri, Division No. 2.

July 1, 1907.

1. ACKNOWLEDGMENT — OFFICER — SIGNATURE — DESIGNATION OF OFFICE.

Where the official seal of a notary public was attached to an acknowledgment, his office was sufficiently designated by the initials "N. P." following his name.

2. JUDGMENT — ATTACHMENT — DESIGNATION OF PARTIES — COLLATERAL ATTACK.

Where an interest in land belonging to "Napoleon W. Lobban" was attached and sold the judgment and deed describing him as "N. W. Lobban" was not void, in the absence of proof that the order of publication and notice pursuant thereto were directed to "Napoleon W. Lobban" by the name "N. W. Lobban."

3. EXECUTION — LEVY — LANDS — EQUITABLE INTEREST — STATUTES.

Under the express provisions of Rev. St. 1879, §§ 2730, 2731, 2767, 2754, all the interest of a debtor in land, whether legal or equitable, is subject to the lien of a judgment rendered in the same county, and is therefore subject to sale under an execution issued on such judgment.

4. CONVERSION — WILLS — CONSTRUCTION.

Where testator devised all his property to his wife for life or widowhood, and at her remarriage or death directed a sale and division among his eight children, without appointing any one to make the sale, the will of its own force did not operate to convert the land into personalty prior to a sale, so as to place the same beyond the lien of a judgment and execution against the remaindermen, but the fee remained in the heirs during the life estate, both by the devise as well as by the statute of descents, notwithstanding Rev. St. 1897, § 137 [Ann. St. 1906, p. 381], providing that a sale of real estate under a will shall be made by the acting executor or administrator with the will annexed, in the absence of any other person appointed for that purpose, or where the person appointed refused to perform the trust.

5. SAME — ELECTION TO RECONVERT.

Testator devised certain land to his wife for life or widowhood, and at her death or remarriage directed that the property be sold and divided among his eight children. During the widow's life the interest of all the remaindermen became vested in plaintiff's grantor, either by conveyance or judicial proceedings. Held that, though the will operated to create an equitable conversion of the land into personal property, the remaindermen being entitled to elect to take the land as land before conversion had actually been made, plaintiff was not bound to submit to a sale of the property, but could enjoin the exercise of the power.

Error to Circuit Court, Randolph County.

Action by James S. Williams against William H. Lobban, as administrator de bonis non of Samuel Lobban, deceased. From a judgment for plaintiff, defendant brings error. Affirmed.

Jno. N. Hamilton, for plaintiff in error. Shackleford & Denny and W. M. Williams, for defendant in error.

GANTT, J.

Plaintiff, in his petition, sought, and the circuit court of Randolph county awarded him, a perpetual injunction to prevent the sale under a power contained in the will of Samuel Lobban, deceased, to a tract of land, to wit, the northwest quarter of section 34, township 53, range 16, containing 160 acres and lying in Randolph county, by the defendant William H. Lobban, as administrator de bonis non with the will annexed. Samuel Lobban died in 1867 seised in fee simple of the real estate above described, and leaving a will whereby he devised all his property to his wife for her life or her widowhood, and at her remarriage or death he directed said property to be sold and divided among his eight children, except that four of them were to have $200 more than the others to make them equal with previous advancements. The widow was appointed sole executrix, and qualified as such in October, 1867. She made two settlements of the estate, but the records do not show that anything further was done in the estate. She never remarried, and lived until 1897. The widow sold and conveyed her interest in the land to Dr. W. C. Harvey, who also acquired at different times the interests of all the other children in said property in the manner hereinafter specified, and subsequently sold all of said real estate to James S. Williams, the plaintiff in this suit. In the year 1903, it appears that letters de bonis non upon the estate of Samuel Lobban, deceased, were granted to the defendant, William H. Lobban, who had advertised this tract of land for sale under the power contained in Samuel Lobban's will, and thereupon the plaintiff brought this injunction to restrain the sale of said land by said William H. Lobban. In addition to the deed of the widow to her life interest in the land to Dr. Harvey, it appears that the defendant, William H. Lobban, on the 27th of March, 1869, executed a mortgage wherein the estate mortgaged was described as "the following described interest in the estate of Samuel Lobban, deceased, the one undivided eighth part situated in Randolph county, Mo." This mortgage was given to secure a note of $400, bearing interest at the rate of 10 per cent. per annum in favor of James R. Jackson. A suit was brought to foreclose this mortgage on the 22d of March, 1880, and the court in that case determined that the mortgage was a lien upon the interest of William H. Lobban in the real estate in controversy herein, and entered a judgment directing the sale of all of his right, title, and interest therein for the payment of the said mortgage debt. There was a sale under this judgment or decree, and at said sale James R. Jackson became the purchaser, and he subsequently conveyed the interest acquired by him to Dr. W. C. Harvey. Another of the children, Mary C. Wisdom, on the 2d of January, 1877, sold and conveyed to John W. Lobban all her right, title, and interest as heir or devisee either at law or under the will of Samuel W. Lobban, deceased, of, in, and to all property real and personal belonging to said Samuel W. Lobban, deceased; the real estate being the same as above hereinbefore set out, with an addition of lot 8 in block 4 on the west side of Bradford street, in Roanoke, Mo. John W. Lobban then executed a deed of trust upon his right, title, and interest in the said real estate, and that acquired by him from Mrs. Wisdom on the 7th of April, 1877. A default having been made in the payment of the note for which said deed of trust was given, the trustee in the deed sold the interest of the said John W. Lobban, and Jacob Fischer became the purchaser. Afterwards, Fischer and wife sold and conveyed the interest thus acquired in the land in suit to Dr. William C. Harvey on the 24th of March, 1888. Mrs. Phipps, Mrs. Warren, Mrs. Perrin, and Mrs. Rice all conveyed their interest in the said real estate by deeds to Dr. W. C. Harvey in the years 1888, 1889, and 1893. The interest of the remaining child, Napoleon W. Lobban, was acquired in the following manner: John R. Christian brought a suit against him by attachment in the circuit court of Randolph county at the September term, 1879. A writ of attachment was issued and levied upon his interest in the land. The judgment itself was offered in evidence. The order of publication and the publication itself were not introduced in evidence, although the judgment recites there was a publication and proof thereof made to the satisfaction of the court in the attachment suit. A judgment was rendered in this attachment proceeding, and a sale made thereunder, at which John R. Christian became the purchaser and obtained a sheriff's deed for all the right, title, and interest and estate of the said N. W. Lobban in the above-described real estate. Afterwards, on September 7, 1887, John R. Christian conveyed said interest so obtained to Dr. W. C. Harvey. It was admitted in evidence that Mrs. Warren was the only child of James, the deceased son of the testator. After having thus acquired the various interests of the devisees in said land, on the 7th of March, 1901, Dr. William C. Harvey conveyed the same by deed to the plaintiff, James S. Williams, for $4,600.

1. Before proceeding to the discussion of the controlling proposition in this case, the objection to the acknowledgments of the deeds of the three remaindermen, Mrs. Phipps, Mrs. Perrin, and Mrs. Rice, urged in the brief of counsel for the defendant, must be considered. The objection is made in this court for the first time that the acknowledgment of these deeds was defective, in that the officer who took the same did not write out his official title, and simply added to his name to the certificate the initials "N. P." It is sufficient to say no such objection was interposed in the trial court, and the case must be tried here upon the same theory as in the circuit court; but, even if timely objection had been made, we think there is no merit in the point. The official seal of the notary was attached to the deed, and it is said in Devlin on Deeds (2d Ed.) § 501: "Initials of the official name of the officer taking the acknowledgment are sufficient." "The letters `N. P.' are sufficient to show that the officer beside whose name they are written is a notary public" — and we may add especially where the officer, as in this case, certified that he affixed his official seal at his office, etc., and that seal shows he was a notary public. Rowley v. Berrian, 12 Ill. 198; Sumner v. Mitchell, 29 Fla. 179, 10 South. 562, 14 L. R. A. 815, 30 Am. St. Rep. 106.

2. It is next insisted that the plaintiff acquired no title to the interest of Napoleon W. Lobban, because the judgment offered in evidence and the deed under the attachment proceedings described him as N. W. Lobban. Counsel refers us on this point to Skelton v. Sackett, 91 Mo. 377, 3 S. W. 874, Spore v. Land Company, 186 Mo. 656, 85 S. W. 556, Gillingham v. Brown, 187 Mo. 181,¹ Burkham v. Manewal, 195 Mo. 500, 94 S. W. 520, and Vincent v. Means, 184 Mo. 327, 82 S. W. 96, all of which were actions under the tax law to...