Krieger v. Crocker , 118 Mo. 531 ( 1893 )

Burgess, J.

Ejectment for a tract of land in' Iron county. The petition is in the usual form, and the answer a general denial.

Plaintiff! claimed title through mesne conveyance from Maria Everly and Henry Everly, her husband, and, on the trial before a jury, offered to read in evidence a deed to the land in controversy executed by them on the twenty-sixth Ray of January, 1870. To the reading of this deed in evidence defendant objected upon the ground that it had not been properly acknowledged, inasmuch as the certificate of acknowledgment did not show that the deed was acknowledged by Maria Everly separate and apart from her husband. The objection was sustained and the deed was not allowed to be read, whereupon plaintiff duly excepted, took a nonsuit with leave, and, after having moved to set the same aside and the motion being overruled, he appealed to this court.

The certificate of acknowledgment to the deed is as follows:

“State of Missouri, “County of St. Louis.

“Be it remembered that on the twenty-sixth day of January, A. D. eighteen hundred and seventy, before pie, the undersigned, a notary public within and for the county and state aforesaid, came Maria Everly and Henry Everly, her husband, who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument of writing as parties thereto, and they acknowledged the same to be their act and deed for the purposes therein mentioned. And she, the said Maria Everly, having been by me first made acquainted with the contents of said instrument of writing, acknowledged that she executed the same freely, and without compulsion or undue influence of her said husband.”

The title of the land at the time of the execution of this deed was in Maria Everly, and, while it is conceded by counsel for plaintiff that the acknowledgment was defective, his contention is that it was not available to defendant, because there was no allegation in the answer that the defendant purchased the land for a valuable consideration. Tbe authorities cited as sustaining this position are, Chouteau’s Ex’r v. Burlando, 20 Mo. 482; Bishop v. Schneider, 46 Mo. 472; Mastin v. Halley, 61 Mo. 196, and Jewett v. Palmer, 7 Johns. Ch. 64. An examination of these cases shows that not one of them was an action of ejectment, in which the universal rule is that the plaintiff must recover upon the strength of his own title. Not only this, but the title was in Mrs. Everly, a married woman, who had no power whatever to convey her land, unless by the manner and means provided by statutory law.

The statute in force at the time of the execution of the deed now under consideration required that the acknowledgment of a married woman should be taken on an examination apart from her husband, and that the certificate of acknowledgment should so state. Sections 13,14, p. 445, General Statutes, 1865. Under the statute as it was at that time, it was essential that the certificate state that she was examined separate and apart from her husband, and as it failed to do so the deed as against her was null and void, and passed no title. Burnett v. McCluey, 78 Mo. 676; Wannell v. Kem, 57 Mo. 478; Chauvin v. Wagner, 18 Mo. 531.

As the court committed no error in excluding the deed, and as that is the only question presented for the consideration of this court, the judgment is affirmed.

All of this division concur.