Ammerman v. Linton , 279 Mo. 439 ( 1919 )

GRAVES, J.

Action in ejectment, by petition in ordinary form. Defendant Adda Kirby answered: (1) by a general denial; (2) she avers that the right of possession is in one C. W. Dnrrett, stating the facts from which such conclusion is drawn. Defendant Charles W. Kirby, answers (1) by a general denial as to all matters not expressly admitted, and (2) admits that he was the former owner in fee of the land, but avers that C. W. Durrett is now the owner and entitled to the possession thereof. Defendant Linton was a tenant of Charles W. Kirby, and so answers, stating the terms of the tenancy.

C. W. Durrett, by leave of court, filed an intervening petition, by which he claimed title and the right of possession to said land by and through a trustee’s deed under a foreclosure of a deed of trust executed by Charles W. Kirby, to Cálvin Carder, trustee, of date March 22, 1911. The answer to Durrett, and replies to answers of defendants, were general denials. Plaintiff had judgment and the intervening petitioner. Durrett, has appealed.

Actions touching the issues involved in the instant case have been in this court heretofore. [Bank v. Kirby, 175 S. W. 926; Bank v. Kirby, 190 S. W. 597.] The records and judgments in these two cases are interAvoven in the facts of the instant case. They are also, in a way, injected into the pleadings of this case. A historical review of the whole transaction will not be Avithout good purpose.

Charles W. Kirby and his wife, Adda Kirby, lived at Stronghurst, Illinois. October 15, 1909, they executed and delivered to Elmer E. Taylor, notes aggregating $7500, which they attempted to securé by mortgage on 200 acres of land in Knox County, Missouri, the land involved in the instant suit. Taylor assigned the notes and mortgage to the First National Bank of Stronghurst, April 12, 1911, and said bank brought suit in the Circuit Court of Knox County to foreclose this mortgage, and Kirby and wife, supra, were the defendants. This was Cause No. 6901 in the Circuit Court of Knox County, and. upon appeal here, by plaintiff, it was this land as an estate by the entirety. So it seems to have been tried below, and so it was treated here. [175 Cause No. 16935 in this court. [175 S. W. 926.] In 175 Southwestern it is erroneously stated to be Cause No. 16835, but our files show it to be No. 169S5. In this Cause No. 6901, Adda Kirby, by verified answer, averred among other things that she and her husband held S..W. 926, supra.] We find upon looking at the old abstract it was admitted to be an estate by the entirety. When here we ruled that the circuit court properly found that the mortgage had not been acknowledged, but as the estate was one by entirety the mortgage was good as between the parties, and could be foreclosed. We also ruled that there was no final judgment against Adda Kirby and that the suit was prematurely brought. The cause was reversed and remanded. But it must- be borne in mind that Charles W. Kirby not only failed to plead in said Cause No. 6991 in Knox County (No. 36935 in this court), but did not appeal from the judgment of foreclosure as to his interest in the land.

Whilst Cause No. 6901 from the Knox Circuit Court was pending here upon appeal, the plaintiff therein caused special execution to be issued as against Charles W. Kirby and his interest in the land, and it is under the sale and deed from the sheriff under this special execution that plaintiff claims title. This special execution was issued November 6, 1913, and sale was had thereunder in June, 1914.

•March 23, 1915, after the reversal of the judgment as to Adda Kirby said Cause 6901 from Knox County Circuit, the First National Bank of Stronghurst brought another suit of foreclosure against Charles W. and Adda Kirby, in the Circuit Court of Knox County. This was Cause No. 7272 of that court. In this cause Charles W. Kirby plead that the judgment in Cause No. 6901 was res adjudicata, and a bar to Cause No. 7272, as to him. The circuit court upon trial so held, and again he did not appeal. In Cause No. 7272, the defendant Adda Kirby disclaimed that the estate was one by entirety (in 175 S. W. 926, we had held that with such an estate her mortgage was good although not acknowledged), but averred that her husband Charles W. Kirby was the owner in fee and she only had an inchoate right of dower. Notwithstanding this answer and evidence tending to prove it, the trial court held (in Case No. 7272) that the unacknowledged mortgage was binding upon Adda Kirby, and her inchoate right of dower. As said above, the court, in Case No. 7272, ruled that the judgment in No. 6001 was res adjudicata as to Charles W. Kirby, and he went no further. Adda Kirby appealed to this court, and Case No. 7272 in Knox Circuit Court became Case No. 19027 in this court. [190 S. W. 597.] In this cause this court held that whilst an unacknowledged deed of trust would (as between the parties) bind both husband and wife as owners of an estate by the entirety, yet such an unacknowledged instrument would not convey (even as between the parties) inchoate dower. We therefore reversed that judgment, and directed the circuit court to set aside its judgment so far as it affected the appellant Adda Kirby, and to dismiss the cause as to such appellant.

The record in this case would tend to show that Adda Kirby falsified when, in her verified answer in Case No. 6901, she averred that she and her husband held the lands as an estate by the entirety. The verification of the answer no doubt prompted the admission of record in the first case. This record shows the common source of title to be John M. Harkness. It then shows a warranty deed from John M. Harkness and wife to Charles W. Kirby. But be this as it may, plaintiff claims under the sheriff’s deed aforesaid.

Now for Durrett’s claim of title and possession. On March 22, 1911, Charles W. Kirby (not joined therein by his wife) made and executed to Calvin Carder, as trustee, a deed of trust on the lands in question, to secure the payment of two notes (aggregating $6500) given by Kirby to his wife Adda Kirby. On October 21, 1915, the sheriff of the county, as successor trustee, sold the lands under this deed of trust, and executed a trustee’s deed to Durrett, as the purchaser at such sale. The intervener, Durrett, claims title and the rigid of possession under this deed. This sufficiently outlines the case.

I. There are some harsh features in this case growing out of the false averment in Adda Kirby’s answer in Cause No. 6901, to the effect that she and her husband held .the land as an estate by the entirety. The case seems to have proceeded nisi, and here, on that theory. [Bank v. Kirby, 175 S. W. 926.]

In the instant case (a possessory action in ejectment) plaintiff showed: (1) a conveyance from the admitted common source of title to Charles W. Kirby; (2) a deed of trust from Kirby and wife to Taylor; (3) an assignment of notes and deed of trust to First National Bank of Stronghurst by Taylor; (4) the judgment of reversal by this court of the judgment in No. 6901, so far as Adda Kirby was concerned (she being the only appellee), but with a holding that the deed of trust was good between the parties; (5) special execution as against the interest of Charles W. Kirby’s interest in the land; and (6) the sheriff’s deed under such special execution to the plaintiff in this case.

Deed.

The right of plaintiff to recover is dependent upon the validity of that deed. The appellant urges that the failure of the respondents to introduce in evidence the judgment upon which the special execution was issued creates a break in plaintiff’s chain of title, and for that reason the plaintiff should not have been permitted to recover. There is no substance in this contention of the appellant. It has long been held that the recitals in the sheriff’s deed are prima-facie evidence of the facts therein set forth, and that the introduction of the judgment under which the sale was made is not required to make a case. [McCormick v. Fitzmorris, 30 Mo. l. c. 32; Samuels v. Shelton, 48 Mo. l. c. 449; Jordan v. Surghnor, 107 Mo l. c. 524; Scharff v. McGaugh, 205 Mo. l. c. 357. See also R. S. 1909, sec. 2231.]

If the opposite party desires to impeach the recital of the sheriff’s deed, he has the right and privilege of so doing, but if the deed is a valid one on its face, the plaintiff makes out a case by the introduction of the deed, without the judgment out of which the sale and deed grew. When we say above that the party has the privilege to attack a deed, regular and valid upon its face, we do not mean that it can be done in a collateral proceeding, as in this proceeding. But of this subject later.

Eectta1 of

II. The deed does not recite a levy upon the lands sold. The statute (Section 2231, Revised Statutes 1999,) requires no such recitation. We have so held for many years. [Hunter v. Miller, 36 Mo. l. c. 147: Shelton v. v. Franklin, 224 Mo. l. c. 367; Butler v. Imhoff 238 Mo. l. c. 595.] The deed does recite the date of the judgment, the parties to the judgment and the execution, the date of -the execution and its receipt by the sheriff. It also avers that the special execution recited that such judgment is a lien and charge upon the real estate. It recited fully the particulars of the execution, as also the description of the land, and the manner of notice and all details as to the sale. In fact under the rulings, supra, as well as under others that might be cited, the deed is valid upon its face.

Documents At Trial.

III. The judgment in Cause No. 6901 was not introduced in evidence by either party. Counsel for appellant have printed it in their brief, hut that does not put it in the record. The special execution is jjj the record, as is also the notice of sale. Among other things the special execution recites “‘which said debt and costs were declared a lien and charge upon the following described property.” The property described was the land sold, and the party named as execution debtor was Charles W. Kirby, the non-appealing defendant in Cause No. 6901.

Several of appellant’s contentions are eliminated by reason of the absence of this judgment from the record. Charles W. Kirby did not appeal from this judgment, hut when the bank instituted another suit of foreclosure, (Cause No. 7272) he did appear, and plead the judgment iii Cause No. 0901 as res adjudixita, and got the court to so hold. This judgment he abided, as did also the bank, but Adda Kirby appealed, and secured a reversal of the jugment as to her. [Bank v. Kirby, 190 S. W. 597.]

Judgment

An examination of our opinion (175 S. W. 597) when the hank case was first here indicates that the appeal was as against Adda Kirby only. We then said: “While the attack made by this appeal is founded exclusively upon the alleged error of the circuit court in giving judgment for the defendant Adda Kirby, there is in fact no such judgment..” Going to the old files in that case we find this statement in the abstract of record: ‘ ‘ This appeal was taken as to the interest of defendant Adda Kirby, only.” The whole proceeding so shows. No additional abstract was filed. There was no reason for the plaintiff in Case No. 6901 to disturb the judgment as to Charles W. Kirby, for thus far it was in its favor. Charles W. Kirby recognized that it had not been disturbed as to him when in Case No. 7272, he plead as res adjudicata the judgment in Case No. 6901. So that it can be said that there was a subsisting judgment against Charles W. Kirby at the date of the special execution under which the sale was made. So far as the showing made in the present record is concerned, it was not a void judgment.

Sale at Second Term.

IY. As a fact the sale under the special execution was not made at the first term, of court after its issuance, but was made at the second term of the court after its issuance. The land was advertised f°r sa^e a^ the first term after the issuance of the special execution, but the parties stipulated that the sale should be called off in view of a possible settlement of the matter. The last clause of the agreement reads:

“7. It is expressly stipulated that February 1, 1914, shall be fixed as the limit of time allowed for the performance by said Adda Kirby and Charles W. Kirby of the stipulations herein made on their part to be performed, and in the event that said stipulations are not fully performed by that date, then the plaintiff has the option to again advertise and sell the interest of said Charles W. Kirby in said real estate, and in that event, the said Charles W. Kirby hereby expressly waives his right of redemption from such sale, and also his right of appeal, by writ of error, or otherwise, from the decree in said cause rendered.

“Date this 5th day of December, A. D. 1913.”

The previous portions of the stipulation and agreement set out the things to be done by Charles W. Kirby and Adda Kirby to effect the proposed settlement. This agreement was signed by both Charles W. Kirby and Adda Kirby and by counsel for the bank, the opposing party. The parties are in jpoor grace urging this point. But in our judgment the law is well settled. The sale was not invalid because made at the second term of the court. The statute contemplates such a sale. [R. S. 1909, sec. 2228.] We have so expressly ruled. [Huff v. Morton, 94 Mo. l. c. 409. See also Lackey v. Lubke, 36 Mo l. c. 122, and Butler v. Imhoff, 238 Mo. 584.]

This contention of the appellant cannot be sustained.

S°saie.

V. Whilst neither the plaintiff nor the defendants nor intervener introduced the judgment under which the sale was made, the plaintiff did introduce the special execution, the notice of sale, and the sheriffs deed. These are therefore in the record. This notice says that the sheriff will sell “all of the undivided interest of the above named defendant, Charles W. Kirby, in and to the following described lands.” (Here follows the description of the lands.) Then follows in the notice the following paragraph:

“The said defendant, Charles W. Kirby, owns all the above described lands, as tenant by the entirety, jointly with the above named defendant, Adda Kirby, and the interest of the said defendant, Charles W. Kirby, in and to all the lands above described will be sold to satisfy a judgment or decree of foreclosure rendered against him by the said Knox County Circuit Court.”

The execution contains no such recital, nor does the deed made by the sheriff contain such a recital. The execution says the debt and costs were declared- a lien upon the land, and directs that the debt and costs be made out of such land. The recitations of the deed follow those of the execution. Appellant contends that this notice shows that the interest in the lands sold was not the interest conveyed by the deed, as we gather their point.

By way of parenthesis it should be said that the appellant in the brief has made no formal assignment of error, but under the head of “Points and Authorities” has engaged in a running fire of points, authorities and arguments. This is no doubt the result of having coun - sel from other states in the case. In fact, it is a close question as to whether or not we should not dismiss the appeal for failure to comply with our rules. However, we have attempted to get the points made as best we could. Now grant it that this notice of sale is irregular, the deed (which is regular and valid upon its face) cannot be thus attacked in this collateral proceeding. Thus in 24 Cyc. 21, it is said: “The fact that proper notice of a judicial sale has not been given is always a sufficient ground for refusing to confirm or setting aside the sale; but according to the weight of authority it is a mere irregularity which renders the sale voidable only and not void.”

A voidable sale or a voidable deed cannot be attacked in a collateral proceeding. This must be done in a direct proceeding. Only void deeds or void proceedings are available for collateral attacks.

The rule above from Cyc. has long been the rule in this State. In the early case of McNair v. Hunt, 5 Mo. l. c. 309, it is said: “It appears from the cases cited that, in Spain, thirty days notice were at some remote period required, and probably still are, but for what reason the crown of Spain could require thirty days’ notice to be given in this then colony, I am unable to see. But even if that were the law, I should say that the act of the sale was merely voidable, and could not be now questioned in a collateral suit. ’ ’

No notice could be much more defective than one not given for the required time. The rule in the McNair case is reannounced in Robbins v. Boulware, .190 Mo. l. c. 48, whereat the McNair case, supra, and other Missouri cases are cited and discussed. The result of the rule is that the deed is not void, but at most only voidable, and being only voidable must be attacked in a direct proceeding, and can not be attacked in a collateral proceeding.

VI. Another contention is, that inasmuch as the deed of trust from the Kirbys to Taylor was not acknowledged it wms not entitled to record, and its' record imparted no notice to Carder, the trustee in the deed of trust made by Kirby to secure alleged notes to his wife, nor notice to Durrett, the purchaser at the foreclosure. This calls for further facts. The deed of trust from Charles W. Kirby and wife, Adda Kirby, had this certificate thereon:

State of Illinois County of Henderson.

On this 20th day of October, 1909, before me personally appeared Charles W. Kirby and Adda Kirby, bis wife, to me known to be the persons described in, and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed.

Witness my band and official seal. My Term expires -190 — .

J. F. McMillan,

Notary Public Henderson County, Illinois.

My commission expires Feb. 14, 1913.

This is a good certificate and regular upon its face. It entitled the instrument to record. What appellant has in view, is, that in Case No. 6901 the trial court found that, notwithstanding this certificate of acknowledgment, as a matter of fact the notary public did not in fact take the acknowledgment of the parties. This alleged and afterward established defect was hidden and did not appear upon the instrument. Under the Missouri rule it was not only the duty of the recorder to record this instrument, which was fair upon its face, hut it (Avhen recorded) imparted notice to subsequent purchasers.

In Stevens v. Hampton, 46 Mo. l. c. 408, Judge Bliss, thus states the rule: “In vieiv, then, of the acknowledgment as affecting the right of record and the question of constructive notice, the following would seem to be a reasonable rule; that when the recorded instrument shows upon its face that the acknowledgment was taken by a party, or party in interest, -it is improperly recorded, and is no constructive notice; but when it is fair upon its face it is the duty of the register to receive and record it} and its record operates as notice notioithstanding there may be some hidden defect.” The italics are ours.

To like effect the rule is stated in 1 Cyc. p. 530, whereat it is said: “But where an instrument bearing a certificate of acknowledgment or proof which is regular upon its face is presented to the recording office, it becomes his duty to record it, and the record thereof will operate as constructive notice, notwithstanding there be a hidden defect in the acknowledgment.” The cases hearing upon the rule are collated by the learned author, and among them is Stevens v. Hampton, 46 Mo. 404, supra. In 1 C. J. 773, the same rule is announced, and a further collation of authorities given.

The rule is a sensible one. The recorder of deeds cannot hold inquiry as to defects not apparent upon the face of the instrument. It follows that the recording of the deed of trust from Kirby and wife to Taylor was notice to the world. The contention of appellant must he ruled against him. He not only bought with notice of the prior deed of trust, hut he bought after the foreclosure of Kirby’s interest, and after the sale to plaintiffs herein, and after plaintiff’s deed was of record. He was not a purchaser without notice, nor was the trustee from whom he bought.

VIII. The foregoing cover the substantial conten tions of appellant, as we have been able to sort them from a mass of irrelevant matter. From it all, the judgment below was well founded in law, and most certainly (from the stand point of good morals) for the right party. The conduct of Kirby and wife has not been such as to appeal to a court.

The judgment is affirmed.

Blair} P. J., and Bond, J., concur; Woodson, J., absent.