Shumate v. Reavis , 49 Mo. 333 ( 1872 )

Adams, Judge,

delivered the opinion of the court.

This was an action of ejectment. The case was submitted to the court and judgment given for defendant. Both parties claim under Benjamin B. Wyatt. The plaintiff, to maintain his case, produced a sheriff’s deed to W. H. Blodgett, under an execution from the Johnson Circuit Court, dated and levied on the 5th of March, 1868, and a sale on the 14th of April, 1868, and being filed for record January 1, 1869. Plaintiff introduced' a deed from Blodgett to himself, of November 16, 1869, and filed for record November 19, 1869, and proved rents and profits, and rested.

The defendant relied on a sheriff’s deed to himself, under an execution on a judgment of April 18, 1866, reciting sale of property on April 19, 1867. This deed was regularly acknowledged but not recorded, and plaintiff objected to it as evidence because it had not been recorded and because he had no notice of its execution, which objections were overruled.

It was then admitted by the plaintiff that the defendant was in possession of and cultivating the land in dispute when Blodgett bought it under execution. It was also admitted that defendant held a certificate of his purchase from the sheriff, but that no deed was made to him by the sheriff up to the time, and not until after the plaintiff brought this action.

The case was submitted to the court sitting as a jury, and no declarations of law were asked by either party. The court found for defendant, and a motion for a new trial was made and overruled. The sheriff’s deed to the defendant was duly acknowledged in open court but not recorded. It is urged by the plaintiff that the defendant’s sheriff’s deed was not admissible as evidence because it had not been recorded. This objection is not tenable. The only object in recording the deed is to impart notice to subsequent purchasers or mortgagees, etc. The second objection to this deed is that the plaintiff had no notice of such a deed when he made his purchase, and that, as this deed was not actually made until some time after that of the plaintiff, it was impossible that he could have had notice of that which had no existence. This is a very ingenious argument, but it is not the law as applicable to this case.

The main question is one of notice — that is, whether the plaintiff had actual notice of the purchase by the defendant at execution sale. If he had such notice and his grantor Blodgett also had such notice, then the sheriff’s deed, as to them, related back to the time of sale and took effect from that time; and therefore notice of the sale was to all intents and purposes notice of the deed, as the deed only completed the purchase and vested the title in the defendant from that time.

This question of notice was only for the court sitting as a jury to pass upon. The plaintiff’s admission, that the defendant was in possession when Blodgett bought, amounts to an admission that he knew of such possession. Possession, though not actual notice, is evidence of such notice to be submitted to the jury. This is the settled law of this State, (See Vaughn v. Tracy, 22 Mo. 417; 25 Mo. 318; Maupin v. Emmons et al., 47 Mo. 304.)

Let the judgment be affirmed.

Judge Bliss concurs. Judge Wagner absent.