Hughes v. Wilkinson's Lessee , 37 Miss. 482 ( 1859 )

Handy, J.,

delivered the opinion of the court.

This was an action of ejectment, to recover an undivided moiety of two lots in Yazoo City. The case has been heretofore before us, and is reported in 28 Miss. 600.

The lessor of the plaintiff, in deraigning his title, showed that the premises in controversy were granted by the United States to one Leflore, and offered and read in evidence a contract in writing, entered into between Leflore, of the one part, and George W. Adams and Joseph S. and William IT. Doke, of the other part, dated 14th April, 1826, whereby, in consideration of a stipulated sum of money, to be thereafter and upon condition paid, Leflore conveyed the premises to Adams and the Dok.es, but upon condition that the bargainees should have until October, 1828, to determine whether they wrnuld complete the bargain and take the land, with the right to them to rescind the contract, in which event the land was to revert to Leflore; and with the further privilege to them to make any arrangement in relation to their interest in it which they might deem advantageous. He then offered in evidence a deed, dated 12th December, 1828, from Leflore to Adams, conveying the premises to Adams, reciting the previous agreement of April, 1826, and setting forth that William H. Doke had died soon after the execution of that agreement, without having paid any part of the purchase-money; that Josiah S. Doke had, on the 11th November, 1827, released all his interest to Adams, and that Adams had become the sole owner of the premises. To the admission of this deed, the defendant below objected on the ground that there was no proof offered to establish the recitals contained in it. But the court overruled the objection, and permitted the deed to be read; to which the defendant excepted. And this is the first ground of error relied on.

We think that the evidence was properly admitted. No claim was set up on the part of the Dokes, or of any one claiming under them. Their interest in the land, by the terms of the agreement, was not complete, but conditional, with the privilege to the bar-gainees to make any arrangement in relation to their interest that they might deem proper. It was provided, that, on failure to complete the contract of purchase by the bargainees, the land should “ revert” to the bargainor. It, therefore, required no formal conveyance from them to restore the title to him; and it was competent to show that they abandoned the contract, or by parol agreed that Adams should take the benefit of it himself. This might be shown by the acts of the other parties interested in the contract, in a case where there was no claim set up by the Dokes, or any one claiming under them; and under such circumstances, and after the lapse of so great a number of years, without the assertion of any claim on behalf of the Dokes, it must be presumed that the deed from Leflore to Adams was regular and by the consent of the parties concerned in the original agreement.

As a further link in the chain of title, the lessor of the plaintiff offered in evidence a deed purporting to be made by William Ward, administrator of Benjamin Johnson, Hiram Gr. Runnels, Isaac Caldwell, and Daniel W. Wright, by Hiram G. Runnels, his attorney in fact, dated 23d April, 1831, and acknowledged and recorded on the 2d May, 1831, to one Davis. To the admission of which, so far as it affected the title of Daniel W. Wright, the defendant objected, because the power of attorney, in virtue of which Runnels purported to act for Wright in executing the deed, was not produced or proved. And, in order to obviate the objection, the plaintiff’s lessor introduced from the record of the Probate Clerk’s office of Yazoo the record book of deeds, &c., and offered to read from it a power of attorney purporting to have been made by Daniel W. Wright to Runnels, dated 11th January, 1831, acknowledged before a justice of the peace of Hinds county on the 12th day of that month, authorizing Runnels to execute the deed as attorney in fact.

The defendant objected to the introduction of this evidence, because the power of attorney was not properly a matter of record and evidence as such; but the objection was overruled, and the record permitted to be read; and to this the defendant excepted.

The first ground of the objection is, that the power of-attorney was not authorized to be recorded by the laws of this State, and therefore that the record was not legal evidence.

It is true that there was no statute of this State at the date of this instrument, authorizing the registration of powers of attorney eo nomine; but the Statute of 1822 provided that “every title, bond, or other written contract in relation to land, may be proved, certified, or acknowledged, and recorded in the same manner as deeds for the conveyance of lands; and such proof, acknowledgment, or certificate, and the delivery of such bond or contract to the clerk of the proper court to be recorded, shall be taken and held as a notice to all subsequent purchasers of the existence of such bond or contract.” Hutch. Code, 606, § 6.

This language is broad enough to embrace a power of attorney for the sale of land. It is not confined to contracts for the sale of land, but extends to any contract in relation to land. The instrument gives the power to make contracts for the sale of land; and good policy requires that the evidence of such authority should be preserved in some permanent form, in order that the titles acquired under such instruments should not be subject to the uncertainty and hazard attending the preservation and proof of instruments in pais, liable as they are to loss, and. difficult as they may be to be proved, after the lapse of many years. In this view, the statute is a protection to the rights of purchasers; and as that was the main object of the statute, such a construction should be given to its general provisions as will promote that object. And if a contract for the sale of land be authorized to be recorded for the security of the purchaser, no sound reason can be perceived why an instrument giving a power to make such a contract should not be embraced within the general language and policy of the statute.

But in order to admit such an instrument to record, it must be •“proved, certified or acknowledged” as deeds of conveyance are •required to be done. And this presents the second ground of the objection, which is, that the instrument was acknowledged before a justice of the peace of Hinds county, the- land lying in Yazoo county, and that such an acknowledgment was insufficient.

This acknowledgment was made in the year 1881, and by the statute then existing, a justice of the peace was not empowered to take an acknowledgment of a deed of conveyance of lands, unless they were situate wholly or in part in the county in which he held his office. Hutch. Code, 605, § 1. Notaries public were afterwards authorized by the Act of 1838, to take acknowledgments out of the county of their residence, Ib. 617; and by the Act of 1836, justices of the peace were authorized to exercise all the powers previously belonging to notaries public. Ib. 704, art. 15. But these two last statutes were passed after the acknowledgment under consideration was made, and of.course can have no effect upon it; and the conclusion is unavoidable, that the acknowledgment was not according to law, and consequently that the power of attorney was not properly recorded, so as to give the record the force of evidence.

But notwithstanding the record was not admissible as having the force and legal effect of a duly recorded instrument, we think that it was competent evidence as a fact connected with the other circumstances of the case, to be submitted to the jury, and from which they might come to the conclusion, that the conveyance was executed by Bunnels, by the authority of Wright. The circumstances of the case go strongly t<3 justify the presumption that the deed was executed by Runnels, under proper authority of Wright. It appears that the conveyance was of toAYn lots, in a regularly established town; and the presumption is, therefore, very strong, that possession must have passed at the time under the deed to the grantee. The lots appear to have been subsequently conveyed through several persons, and among others to one Rutherford, whose heirs and terre-tenants are shown to have been in possession in April, 1843, and under whom the plaintiff’s lessor claims title immediately. No claim on the part of Wright, or of any one claiming under him, appears to hare been set up since 1831, and the possession of the lots, in all probability, passed under the deed of Runnels of that date, and has been held adversely since that time; or if not, it clearly appeal’s to have been held adversely, at least since April, 1848. In either of these views, the claim of Wright would be barred by the Statute of Limitations, and the possession of the parties, under Avhom the plaintiff’s lessor claimed, was sufficient to carry the title, and, therefore, tho admission of the deed and power of attorney Avas immaterial.

But after so great a lapse of time since the deed purporting to be made under the poAver of attorney, and the long-continued possession adverse to the title of Wright, and without claim on his behalf, the deed and power of attorney Avere competent evidence to go to the jury, under these circumstances, and from Avhich they might infer that the deed was duly executed by the authority of Wright.

We think, therefore, that the deed and poAver of attorney Avere properly permitted to go to the jury.

Again. The lessor of the plaintiff claimed title under a judgment against one Rutherford, in favor of Lucas and Eskridge, rendered in the year 1833. It appears that Rutherford died after the rendition of the judgment; and that in the year 1843, it Avas revived by scire facias against the heirs and terre-tenants of Rutherford, in the names of Lucas and Eskridge, plaintiffs, who Avere both dead at the time of the judgment of revival; and thereafter that an execution issued upon the revived judgment under which the plaintiff’s lessor purchased. It is now insisted that the judgment on the scire facias Avas void, as the plaintiffs therein were both dead; and, therefore, that nothing passed by the sale under the execution.

This vieAv is founded on the idea that the validity of the execution and the efficacy of the sale under it, depend entirely upon the judgment of revival and the condition of the parties at that time.

But this position is not tenable. The essential thing Avas the original judgment, the regularity of which is not questioned. The scire facias related back to that judgment, and its office was to have execution of that judgment, and not to obtain a neAA' and substantive judgment. It Avas necessary, in order to conclude the rights of parties Avhose interests might be involved in the execution of the original judgment in consequence of the death of the defendant; and the judgment upon it was an award of execution of the original judgment, and not a new judgment in numero. Locke v. Brady, 30 Miss. 21; Vick v. Chewning, 31 Miss. 201.

But it is well settled in this court, that a sale of land under execution issued and tested after the death of the defendant in the judgment, and without revival by scire facias, is not void, but merely voidable; and that a sale under it is valid until regularly set aside in a direct proceeding for that purpose by the heir or terre-tenant. Shelton’s lessee v. Hamilton, 23 Miss. 496; Hodge v. Mitchell, 27 Miss. 560. And a fortiori, - a sale made under an execution, in which the plaintiff was dead at the time it was issued or tested, could only be voidable; because the reason for a revival applies with much less force to a plaintiff than to a defendant. The reason for a scire facias against the heir or terre-tenant of the defendant is, that they may not be concluded of their rights in the property affected by the judgment, without an opportunity to show that the judgment has been satisfied, or otherwise that it should not be enforced. But no such reason exists with reference to the plaintiff, and the revival as to him is merely a technical form, involving no substantial right as between the parties to the judgment, and for the want of which the defendant would have no right to complain that his property was sold under execution upon the judgment. Much less would strangers be permitted to avail themselves of the informality in a collateral proceeding.

Conceding, then, that the revival upon the scire facias was irregular, or even void, the substantial thing done in the sale was the execution of the original judgment; and as that would have been valid, when collaterally questioned, without a scire facias, it is manifest that it must be valid when the proceedings upon the scire facias are irregular, or void, as if they had never been had.

The last ground of error alleged, is that, as the defendant below did not confess ouster in his plea, it was necessary that proof of ouster should have been adduced, and for the want of such proof, that the judgment was erroneous.

It is admitted that the usual consent rule of lease, entry, and ouster appears by the record to have been entered into. But it is said that this -was an unauthorized act of the clerk, who was interested in the suit. We cannot notice any suggestion of this kind, but must consider the case by what appears of record.

The record shows that the defendant appeared and entered into the usual consent rule. This must be taken, for the purposes, of this case, to have been done in open court, and that the entry of the fact was made by the cleric under the direction of the court. It was an ordinary step in such a case, not necessarily requiring to be drawn up in writing and signed by the defendant’s attorney, or even usually so done. If the act was done in court, it was proper that the court should direct it to be entered of record; and, it being so entered, it must be presumed that the fact took place as recorded, and that it was done and entered of record under the direction of the court. Gwin v. Williams, 27 Miss. 324.

Note. — On the subject of sales without revivor, see Harper v. Hill, 35 Miss. R. 63.

We think that there is no error in the record to the prejudice of the plaintiff in error; and the judgment is, therefore, affirmed.