Burnett v. McCluey , 78 Mo. 676 ( 1883 )

Hough, C. J.

This is an action of ejectment for an undivided half of the south half of the northwest quarter and the north half of the southwest quarter, and the southwest quarter of the southwest quarter of section 6, township 32, range 28, and the east half of the southeast quarter, and the south half of the northeast quarter of section 1, township 32, range 29, in the county of Dade. John N. Eerguson is the common source of title. Plaintiff claims title under a deed from the heirs of Eerguson, containing the following description : “ Southwest quarter of section No. ten (10), township No. thirty-one (31), range twenty-eight (28); also an undivided half of the following, to-wit: South half of the northwest quarter, and north half of the southwest quarter - the southwest quarter of section 6, township 32 of range 28, and also the east half of the southeast quarter and south half of the northeast quarter of section 1, township 32 of range 29, containing 340 acres, more or less.”

The acknowledgment of this deed is as follows:

State of Arkansas, County of Benton, }ss

On the 19th day of January, 1875, before John Black, clerk of the circuit court of Benton county, Arkansas, personally appeared Charlotte E. Eerguson, William II. Eerguson, B. Y. Eerguson, Robert K. Eerguson, Raphael W. Hansard, Sarah C. Hansard, his wife, John K. Putnam and Alice C. Putnam, his wife, of the county of Benton and state aforesaid, to me well known as the persons whose names appear as grantors in the foregoing deed of conveyance, and stated that they had executed the same for the consideration and purposes therein set forth, and I do hereby so certify, and I further certify that upon an examination of Sarah C. Hansard, wife of R. W. Hansard, Alice C. Putnam, wife of J. K. Putnam, separate and apart from their said husbands, acknowledged that they had of their own free will signed and sealed the relinquishment of dower for the purposes herein contained and set forth, without compulsion or undue influence of their said husbands.

In testimony whereof, I have hereunto set my [seal.] hand and affixed the seal of said court, at office in Bentonville, Benton county, Arkansas, this 19th day of January, 1875.

John Black, Clerk.

The defendant objected to the introduction of this deed in evidence for the reason that there had been a material alteration therein since its delivery to plaintiff, and since it was recorded, and also because the certificate of acknowledgment of Sarah C. Hansard and Alice C. Putnam does not conform to the requirements of the statute and is insufficient. The alteration complained of consisted in the erasure of the word “of” from the description above quoted, where the hyphen appears between the word “ quarter ” and the word “the;” said erasure being visible on inspection. A certified copy of said deed was introduced in evidence by the defendant which contained the word “ of” at the place above designated by the hyphen. Oral testimony was introduced by the plaintiff, tending to show that said alteration ,was not made after the delivery of the deed

The defendant claimed title under a sheriff” s deed made in pursuance of a sale in a certain attachment proceeding against said John N. Ferguson, the common source of title, and one Marshall G. Stephens. The plaintiff introduced in evidence the record and original papers in said attachment proceeding, from which it appeared that the defendant Ferguson was a non-resident of the state and did not appear to the action. An affidavit of the non-residence of the defendants appeared among the files, but no affidavit for an attachment. Oral testimony was introduced by the plaintiff, tending 'to show that no affidavit for attachment was ever made in said cause, and similar testimony was introduced by the defendant tending to show that an affidavit for attachment had been made in said cause and was lost.

There was testimony tending to show that the defendant told the plaintiff that he had lost the land in controversy in a suit with one - Bray, and that he advised the plaintiff to purchase the title from the Ferguson heirs, as he himself could not effect a trade with them, and that plaintiff did so purchase as advised, hut the judgment of the court, as will be seen from an instruction given at the instance of the defendant, was not based upon this testimony.

The court gave the following declarations of law at the request of the plaintiff:

1. That it is admitted in testimony that John N. Ferguson is the common source of title to the land described in plaintiff’s petition; that John N. Ferguson died in the year 1868, and plaintiff’s grantors Charlotte E. Ferguson, the wife of John N. Ferguson deceased, and Arthur Ferguson, B. V. Ferguson, Alice Putnam, Sarah Hansard, William N. Ferguson, R. K. Ferguson are the children and heirs at law of said John N. Ferguson deceased.

2. . That although the court may believe from inspection of the original deed from the Ferguson heirs to John Burnett, that there has been an erasure in said deed, the law presumes the erasure was made before the execution of the deed, and. the burden of proof is on defendant to show, by competent testimony, that the erasure was made since the execution of the deed.

4. That the judgment in the case of the Merchants Bank of St. Louis against John N. Ferguson and Marshall Gr. Stephens upon which the deed offered in evidence by defendant rests, is void, and said deed passes no title.

5. That if the court believes from the testimony, that defendant, previous to the purchase of the title of the Ferguson heirs by plaintiff, made statements to plaintiff inconsistent with his (defendant’s) title, or induced or advised plaintiff’to buy the land in controversy, of the Ferguson heirs, then defendant is estopped from.setting up any title? and plaintiff’ must recover.

6. That if the court believes from the testimony, defendant MeCluey advised plaintiff’ to trade his, plaintiff’s, farm in Arkansas to the Eerguson heirs for the land in controversy, and that the plaintiff’ did so trade, believing that the defendant had no claim to said land from defendant’s statements, advice and conduct, then defendant is estopped from setting any claim to said land.

7. The court declares the law to be, that if .the court shall believe from the testimony that defendant McCluey made such statements to plaintiff as would lead plaintiff to believe he, McCluey, had given up his claim to the land in controversy, and plaintiff was induced to purchase said land, by representations to plaintiff’ by defendant McCluey, that he plaintiff, could make money by buying or -trading for said land, and that plaintiff did so buy, or trade for said land, relying on said statements, then defendant is estopped from setting up any claim to the same.

The court, on motion of defendant, gave the following declarations of law:

2. In an ejectment suit where there is in issue the validity of a sheriff’s sale of lands under a final judgment rendered by a court of original and general jurisdiction, and the rights of an innocent purchaser are at stake, the judgment under and by which said sale was had, cannot be impeached or proven void by oral testimony; such judgment can only be proven void in such a suit by the roll and record itself.

3. Oral testimony, to avoid a final judgment of a court of original and general jurisdiction, can only be used in a direct proceeding to set aside such judgment, and then only when the rights of innocent purchasers have not intervened.

4. A final judgment of a court of original and general jurisdiction, when used, or called in question in a collateral proceeding imports, and is, absolute verity, and can only be contradicted and invalidated by the roll and record itself.

5. A person claiming title to lands does not forfeit his right by attempting to buy in a conflicting claim.

6. The fact of the defendant’s going to Arkansas to "buy out the claim of Eerguson’s heirs to the land in controversy, while he was in possession of those lands, and defending an ejectment suit then pending in this court against him for those lands, which suit was brought for or by his heirs, and his acts, in attempting to so buy, do not forfeit, or prejudice his right to defend or assert the right, title and claim which he had prior to his attempt to so buy out said heirs, against another person, who thereafter, and while such suit was pending, bought the interest of said heirs in those lands, and took their quit-claim deed only to such lands.

7. The doctrine of estoppel can only be invoked by a person whose conduct in the whole transaction shows the utmost good faith.

11. The testimony in this case is not sufficient to establish an estoppel on behalf of plaintiff.

13. The two instruments in writing read in evidence by plaintiff, and under which he claims title, only purporting to be deeds of remike, release and quit-claim, and plaintiff being the pretended purchaser in said instruments, and the defendant being then in possession, plaintiff cannot claim to be an innocent purchaser, for a valuable consideration, and without notice of defendant’s rights or claims.

14. It being admitted by the parties to this suit, that at the time plaintiff claims to have purchased the lands in controversy from the widow and heirs of John N. Ferguson, deceased, defendant was in possession of said lands, and an action of. ejectment was then pending in this court, against him for said lands, in which ejectment suit said heirs were plaintiffs and were claiming three-fifths of the said lands, and the deeds which plaintiff received from said heirs, and under which he claims, being but deeds of remise, release and quit-claim, plaintiff took under said quit-claim deed only what said heirs could lawfully remise, release and quit-claim, and plaintiff did not thereby acquire any right superior to the right which they had.

19. The instrument read in evidence by plaintiff, and purporting to be a quit-claim deed, and purporting to have been executed by Charlotte E. Ferguson, B. V. Eerguson, Alice C. Putnam, and J. K. Putnam, her husband, Sarah C. Hansard, and Raphael W. Hansard, her husband, William H. Ferguson and Antha Ferguson, his wife, and Robert K. Eerguson to plaintiff, John Burnett, on the 29th day of January, 1877, and purporting to remise, release and quit-claim to plaintiff the lands in controversy, having been executed after the commencement of this suit, will not sustain plaintiff’s right to recover in this action, and plaintiff cannot base his right of recovery on this instrument.

24. In order to recover in an action; of ejectment, the plaintiff must show title in himself to the lands in question at the institution of the suit.

27. An estoppel is a purely equitable defense, and plaintiff must do equity to defendant before he can claim equity.

28. A deed only takes effect from its delivery.

It is unnecessary to transcribe here the declarations of law asked by the defendant and refused by the court, as all the material errors committed by the court are indicated in this opinion. There was a finding and judgment for the plaintiff for the land described in the petition.

1. deed: erasure: presumption. In the second instruction given at the instance of the plaintiff, the court correctly declared the law in regard the erasure in the deed under which the plaintiff claims title. McCormick v. Fitzmorris, 39 Mo. 24. And it is manifest from the judgment rendered, that the court found from the testimony before it, that the erasure in question was made before the delivery of the deed. As there is testimony to support the finding of the court, this court will not undertake to weigh the evidence.

2.--:-. And even though the circuit court had found that the erasure had been made after delivery, and that such erasure was not a spoliation, but had been fraudulently made by the grantee, still, under the decision of this court-in Woods v. Hilderbrand, 46 Mo. 284, the deed would have been admissible as evidence of title to the tracts thereby conveyed, in the description of which no alteration had occurred. The rule in regard to the alteration of deeds differs from that applicable to negotiable paper.

s.-: seal. The fact that no seal or scrawl was affixed to the names of three of the parties to said deed, does not render it inoperative as to them. The instrument purports to be sealed, and declares that the parties thereto have subscribed their names and affixed their seals. In such case, it has been held by this court, that where any seal has been affixed, such seal or seals, will be presumed to have been adopted by the parties to whose names no seal is affixed. Lunsford v. La Motte Lead Co., 54 Mo. 426.

4. mabbikd woman's meat. The certificate of acknowledgment, however, is defective as to Sarah C. Hansard and Alice C. Putnam, part owners in fee of the land conveyed, in that it does not state that they were made acquainted with the contents of the deed; nor is there any equivalent statement in said certificate. On the contrary, the certificate recites that on an examination separate and apart from their husbands, they acknowledged that they had of their own free will signed and sealed the relinquishment of their dower in the premises conveyed. If it distinctly appeared that the parties named had been made acquainted with the contents of the deed, the statement that they relinquished their dower would be regarded as surplusage, and would not vitiate the acknowledgment. Chauvin v. Wagner, 18 Mo. 531; Miller v. Powel, 53 Mo. 252. But where the certificate fails to state that they were made acquainted with the contents of the deed, the statement that they relinquished their dower would seem to exclude any implication or inference that they were cognizant of the contents and effect of the deed. The certificate of acknowledgment being defective as to Mrs. Hansard and Mrs. Putnam, the judgment is necessarily erroneous to the extent of their interests in the land. '

5. sheriff’s deed : attachment: e7idence. The deed from the sheriff to the defendant offered, in evidence hy him, and under which he claims title to the land in controversy, presents the same question which was considered hy this court m the case of Bray v. McClury, 55 Mo. 128, where apparently the same deed was held to he void because it was made under certain attachment proceedings without an affidavit-therefor. We say apparently, because we cannot take judicial notice of the fact that the deeds are identical and there is no plea of res judicata in this case, nor could there be-when the defendant pleaded not guilty, nor was the adjudication in that case offered in evidence, as it might have been, to rebut the defendant’s claim of title under said deed.. The opinion of Judge Adams in the case of Bray v. McClury, 55 Mo. 128, was expressly re-affirmed by this court-in the case of Hargadine v. Van Horn, 72 Mo. 370, and ad-hearing to the rule announced in those cases, the deed of the sheriff under which the defendant claims title, must, on the record and files in the attachment proceeding now before us, be held to be void. As to the right to look at the files, vide, also Abbott v. Sheppard, 44 Mo. 273; Howard v. Thornton, 50 Mo. 291; Clark v. Thompson, 47 Ill. 25; 67 Ill. 212; Kane v. McCown, 55 Mo. 181, loc. cit. 200; Lenox v. Clarke, 52 Mo. 115. There was no finding by the court that the writ of attachment was duly issued.

In the case now before us, however, as has already been stated, parol testimony was resorted to by plaintiff, to show that there was no affidavit for attachment, and by the defendant to show that an affidavit for attachment was filed by the attorney for the plaintiff in the proceeding referred to, and had been lost. We think the court erred in permitting the plaintiff in the first instance, to introduce evidence that no affidavit for attachment had ever been filed. The plaintiff had a right to introduce the original files to show that the judgment was a nullity; and when the do~ fendant introduced testimony for the purpose of showing that the files were not complete, and that papers properly belonging in said files which would support the judgment of the court, had been lost or destroyed, the plaintiff might then introduce evidence in rebuttal, going to show that tho files were complete and that no such papers as were alleged to be lost, ever existed. Howard v. Thornton, 50 Mo. 291; Gibson v. Vaughan, 61 Mo. 418 ; Parry v. Walser, 57 Mo. 169.

6. deed : description: can for quantity, The court having found that the deed under which plaintiff claims title, was not altered after delivery, and that finding, for the reasons heretofore stated, being binding upon us, that deed is to be regarded by us as if it were originally written as it now appears, and the question remains whether the description contained in the deed of the land in the southwest quarter of section 6, will support the judgment rendered by the court. The plaintiff claims in his petition with other land, the north half of the southwest quarter, and the southwest quarter of the southwest quarter of section 6. The deed conveys the “ north half of the southwest quarter the southwest quarter of section 6.” The court rendered judgment-for the north half of the southwest Quarter, and the southwest quarter of the southwest quarter of section 6. The court evidently regarded the deed as containing a double description, that is, as covering the entire southwest quarter of section 6, which description standing alone, includes of course, the north half of the southwest quarter. If the court properly rejected the words “ north half of the north west quarter” as superfluous, then its judgment is right, the interests of Mrs.. Hansard and Mrs. Putnam excepted; otherwise its judgment is for too much. The general rule is, that effect should be given, if practicable, to every part of the description. The words the “north half of the southwest quarter the southwest quarter of section 6 ” certainly constitute a novel description. It would seem to be highly improbable that a grantor would, under any conceivable circumstances first grant the north half of the southwest quarter, and then by words immediately following grant the entire southwest quarter. Campbell v. Johnson. 44 Mo. 247; loc. cit. 249, 250.

If the description were an abbreviated one and stood thus : “ N. 1-2, S. W. 1-4, S. W. 1-4 sec. 6,” few persons familiar with the system adopted for the survey and subdivision of lands in the western states, and the abbreviations in use for the designation of such subdivisions, would hesitate to construe such description to mean the north hah of the southwest quarter of the southwest quarter of section 6. But when such abbreviated descriptions are translated into words, it is usual to insert both the words “ of' and “ the ” after the words.and figures designating the subdivisions.

After some hesitation we have reached the conclusion that the description under discussion should be held to mean the north half of the southwest quarter of the southwest quarter of section 6; and we are aided to this conclusion by the call for quantity contained in the deed. 3 Washburn, (3 Ed.) 348. The construction of the description contained in the deed which was adopted by the court, gives 220 acres in excess of the number of acres which the deed purports to convey. The construction which we have adopted gives only eighty acres in excess ; and if sections 6 and 1 mentioned in the deed and bordering on the north and west of the township are fractional, as they may be, the construction we have adopted will probably give the exact quantity called for in the deed. If the heirs intended to convey more than our construction gives, the plaintiff will have to take the necessary steps to perfect his title. It necessarily follows that the'judgment of the court was for more land in the southwest quarter of section 6 than the plaintiff was entitled to recover — besides being erronecus as to the interests of Mrs. Hansard and Mrs. Putnam.

We see no reversible error in the action of the court other than that herein pointed out. The judgment will be reversed and the cause remanded.

The other judges concur, except Sherwood, J., who dissents.