Wilson v. Albert

• Decision Date: 07 June 1886
• Citation: 89 Mo. 537,1 S.W. 209
• Parties: WILSON v. ALBERT and others.
• Court: Missouri Supreme Court

1 S.W. 209

89 Mo. 537

WILSON v. ALBERT and others.

Supreme Court of Missouri.

June 7, 1886.

1. MORTGAGE — PAYMENT — PRESUMPTION FROM LAPSE OF TIME.

After the lapse of 20 years, the court will presume a mortgage in controversy to have been paid.¹

2. DEEDS — QUITCLAIM — "REMISE, RELEASE, AND FOREVER QUITCLAIM."

The words "remise, release, and forever quitclaim," employed in a quitclaim deed, suffice to convey whatever title the grantors had at the time of delivery, the deed being otherwise valid.

3. HUSBAND AND WIFE — DEED — SEPARATE ESTATE — DEFECTIVE EXECUTION.

A deed executed by husband and wife jointly, of lands inherited by her prior to the enactment of section 3295, Revision 1879 Mo., even though the wife's acknowledgment is defective, if the deed is regular in form on the part of the husband, will transfer to the grantor the right of actual possession, and enable him to maintain ejectment.

Ejectment for a parcel of land in the city of Cape Girardeau, plaintiff claiming under the heirs of a deceased owner of the land. Judgment for plaintiff, and defendants appeal.

SHERWOOD, J.

On December 22, 1880, plaintiff brought ejectment for a certain lot in the city of Cape Girardeau, and, on trial had, recovered judgment for the premises in question. David Bryant was the source of title of plaintiff, and plaintiff's evidence showed title in Bryant derived from the government through mesne conveyances; Bryant's immediate grantor being Joseph Andrews, by deed dated May 12, 1812. On the same day the land was "mortgaged" to Joseph Andrews to secure, as it seems, the payment of the purchase money, $350.

It is scarcely necessary to discuss the sufficiency of the certificate of acknowledgment of the officer to a deed made in 1819 by Joseph Andrews and wife to David Bryant, whereby the mortgage aforesaid purports to be released, and the land reconveyed to Bryant, for the reason that, leaving that instrument out of consideration, the title in Bryant is still perfect, as the mortgage will be presumed to be satisfied after the lapse of 20 years, nothing to the contrary thereof appearing. Chouteau v. Burlando, 20 Mo. 482; Cape Girardeau v. Harbison, 58 Mo. 90. But if there is any defect in the certificate, it is cured by virtue of sections 2305 and 2306, since the deed had been of record since 1824; so that, taking either view of the point, the title in Bryant, the ancestor, was indisputable. Then followed evidence showing the death of Bryant, and who his heirs were, and that among the grantors in those deeds were these heirs. As to two of these heirs, the deed, if otherwise sufficient, undoubtedly passed the title of these heirs to the plaintiff, the certificates of acknowledgment being good. As to the other grantors, some of the heirs, and their husbands, the certificates of acknowledgment are plainly lacking in statutory requirements, in so far as concerns the wives; but notwithstanding this, inasmuch as the femes covert were seized of this land as heirs of their father, David Bryant, if seized at all, long before what is known as the "Married Woman's Act" (Rev. St. § 3295) went into operation, the deeds of their husbands would be sufficient to pass to the plaintiff whatever rights such husband had to the land, whether during the joint lives of the husband and wife, or whether a greater interest in the lands, by reason of the husband being tenant by the curtesy initiate, in consequence of which the title of the plaintiff may become good during the life of the husband if he should survive his wife. Hall v. Stephens, 65 Mo. 670. Cases where the wife is seized of land as at common law and cases where she is seized of land under the married woman's act are not at all analogous in their incidents and consequences. In the former class of cases the husband is as unfettered in his conveyance of whatever interest he has in his wife's land as he was at common law; in the latter class, he can only convey in the mode pointed out in the statute. Section 3295. Or, as is said in Hord v. Taubman, 79 Mo. 101, in a conveyance, made under the provisions of the statute, of the fee of the wife, the title can only be transferred as an indivisible integer, or not at all. Counsel on either side do not appear to apprehend this distinction. It is a very marked one, and is pointed out in Mueller v. Kaessmann, 84 Mo. 318, and cases cited. If in the case at bar the wives were seized under the act referred to, a very different question would be presented here.

It follows from what has been said that, if the conveyances to plaintiff were of any validity, he became seized of two-fifths of the title of the premises absolutely, and this would authorize a recovery by him pro tanto, and if those conveyances were otherwise valid as to the husbands, as they undoubtedly were, so far as regards the certificates of acknowledgments, he also became entitled to whatever marital interest the respective husbands possessed in the three-fifths of the land; and this, in connection with the two-fifths interest aforesaid, would authorize a recovery by plaintiff of the possession of the entire lot in suit.

But it is claimed that the deeds in form are insufficient to pass the title to plaintiff, for that they are mere quitclaim deeds, simply employing the words "remise, release, and forever quitclaim." In New York, then possessing a statute of uses similar to our own, it was ruled that such words as those I have mentioned will raise a use by way of bargain and sale, which, by force of the statute of uses, becomes operative to pass the title. Jackson v. Fish, 10 Johns. 456. And in the same case it was also ruled that no precise technical words are requisite to raise a use; that, if the words amount to a present contract of sale or bargain, a trust is instantly raised on which the statute operates. And in the same case it was also ruled that the words "release and assign" were operative words of conveyance, equally efficacious in accomplishing the same result. To the same effect, see Platt v. Brown, 30 Conn. 336. In Hunt v. Hunt, 14 Pick. 374, where the effect of a quitclaim deed was being discussed, SHAW, C. J., observed: "Courts of law have gone far in modifying the rules of conveyance, both those of the common law and those which have their effect from the statute of uses, so as to give effect and operation to the deeds of parties rather according to the manifest intent than according to the force of the particular words used to effect the conveyance, so that, where it is manifest from the efficient words of conveyance used that it was intended and understood that the estate should pass in one way, — as by feoffment, bargain and sale, covenant to stand seized, or release — but some of the circumstances are wanting which by the rules of law are necessary to pass the estate in that form, and it cannot so pass, yet, if all the circumstances exist...