Record and brief — Clarence P. Hunt, vs. Sallie S. Blackburn, et al

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ASSIGNMENT OF

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IN THE SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1887.

CLARENCE P. HUNT.

VS.

SALLIE S. BLACKBURN, Er Al.

No. 199.

ASSIGNMENT OF ERRORS AND BRIEF.

JI. B. HEISKELL,

FOR APPELLANT.

MEMPHIS, TENN.:

Jonres, Hunn & Co., PRINTERS AND BINDERS.

1887.

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IN THE SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1887.

CLARENCE P. HUNT )

VB. ! No. 199.

SALLIE 8. BLACKBURN ET ALS. }

ASSIGNMENT OF ERRORS AND BRIEF

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J. B. HEISKELL, FOR APPELLANT.

Defendant Sallie Blackburn, then Buck, on the 24th of

April, 1868, bought of one Shepard one undivided half of 973

acres of Jand in Desha county, Arkansas, and took a title bond

stipulating for a mode of division, to be made between her and

her vendor as soon as practicable, and specifying the parts the

vendor was to retain and she was to take. On division, a deed

was to be made. Vendor and vendee took possession of their

parts, respectively, and held accordingly. In June following,

Mrs. Buck’s husband bought of the same vendor the other half

of the land, and took a writing to that effect. In January,

1869, the husband sold his half to J. S. Drake, and madea

deed, in which defendant, his wife, joined.

Drake cultivated the lands jointly with Buck and wife to

1872, when Winfrey bought of Drake, and for a year or two

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he cultivated a portion of the land, but during a part of the

time it was not the part designated in the original title bond as

the part to be assigned to the vendor on partition—i. e., the

husband’s part.

Mr. Buck, about this time, died, and the defendant afterward

married Blackburn, who is also dead.

On the death of her first husband, Mrs. Buck filed.a bill in

chancery, setting up the separate purchase and title of herself

and husband each to one-half, and the court decreed that she

was entitled to one-half and Drake or Winfrey to the other half.

Then a dispute arose about a quarter section of the land

omitted, by mistake, from the deeds of Buck to Drake and the

agreement of sale from Drake to Winfrey, and Winfrey filed a

bill in chancery at Memphis for rescission against Drake.

About the same time, defendant, Mrs. Buck, and Drake filed

their bill in Arkansas to compel Winfrey to take the title,

alleging that Mrs. Buck owned one-half and Winfrey the

other. The court decreed a reformation of the deeds, and

quieted the respective titles of defendant, Mrs. Buck, and Win-

frey to their respective halves.

These two decrees stand unreversed, and the first unappealed

from, the second decided on appeal in the Supreme Court of

Arkansas.

Winfrey became bankrupt, and his interest was bought by

W. G. Weatherford, who conveyed to appellant, Hunt.

Drake had ‘previous to this become embarrassed, and still

being indebted for the land, he procured the money from Hunt

to pay for it; and the subsequent purchase at bankrupt sale

and conveyance by Weatherford to Hunt were agreed upon as

[3]

the means by which Hunt should have the land for the money

advanced.

Fols. 7-8, 66-67, 74.

Hunt advanced his money, and took the title to the land, on

the advice of Weatherford that the title was a good one, and

Weatherford gave that. advice upon personal knowledge of

every step in the business, from the first title bond to Mrs.

Buck to the advance of the money by Hunt.

Hunt also bought, on the 16th of September, 1872, the same

half at tax sale, and holds a deed therefor. |

When Buck sold to Drake, Drake required that the title

should be examined by his lawyer in Memphis. The lawyer

objected to the deed drawn by Mr. Weatherford, because it

was acknowledged before a Justice of the Peace, which was

good in Arkansas, but would not have been good for land in

Tennessee. ‘The original vendor, Shepard, had made a deed

to Buck and wife (Fol. 76), recognizing the separate purchases

and interests. ‘This was, by the Memphis lawyer of Drake,

objected to, and a new deed substituted to Buck and wife jointly.

- Fols. 49, 62, 75-76.

This deed bears even date with the deed from Buck and wife

to Drake, 2d of January, 1869.

Mrs. Blackburn now claims to be the owner of the land by

survivorship in virtue of the deed of Shepard, substituted in

Memphis for the former deed drawn by Weatherford, executed

at the time of the sale to Drake, and drawn by his lawyer for

the very purpose of that sale. This deed is acknowledged be-

fore the proper clerk, who says: “ Voluntarily appeared before

me, 8. S. Buck, wife to the said W. B., to me personally well

| [4]

known to be the person whose name appears upon the within

and foregoing deed, and in the absence of her husband declared

that she had of her own free will signed and sealed the re-

linquishment of dower therein expressed for the purposes

therein contained,” ete.

ASSIGNMENT OF ERRORS.

The court below, to come to his conclusion, must have held:

Ist. That the defendant, then Mrs. Buck, and her husband,

W. A. Buck, in the act of sale to Drake, and in the making of

a new deed by Shepard for that purpose, intended to abrogate

the original separate purchases and to create a joint-estate, the

effect of which would have been to defeat the very purpose the

parties had in view. ‘This was error.

2. If the parties abandoned the original separate purchases,

and joined in the deed to Drake with intent in that way to con-

vey jointly, then the conveyance is effectual in that form, and

the error in the acknowledgment is simply a clerical error, and

cured by the Arkansas statutes of Mar. 8, 1883, and Mar. 14,

1883, Rev. Stats. 683-684. Construed in Green v. Abraham,

43 Ark. 420; Johnson v. Richardson, 44 Ark. 372; Apel v.

Kelsey (47 Ark. 413), 2S.W. Rep. 102. And it was error to

hold that this did not convey Mrs. B.’s interest in the undivided

half.

3. That the acts, declarations, letters and statements of Mrs.

B., of record, brought home to complainant Hunt, and acted

upon by him in his advance of money and purchase of Drake,

difl not constitute an equitable estoppel. This was error.

4, That the decrees of the Chancery Court of Desha county

and of the Supreme Court of Arkansas in the two cases of Buck

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[5]

v. the Heirs of Buck, Drake and Winfrey, and Blackburn and

Drake v. Randolph, Winfrey et als., were not estoppels of

record. This was error.

5. The tax deed to Drake conveys the title to Drake, and it

was error to ignore it.

6. He dismissed the bill, when he ought to have granted

the relief prayed.

It is believed to be unnecessary to make any argument on

the facts. Mrs. Blackburn’s statements are not materially con-

tradictory of those of Mr. Weatherford and Drake, and we are

safe in assuming that every word Mr. Weatherford states is

perfectly truthful. His standing would preclude any possibility

of doubt en this point.

Mrs. Buck-Blackburn, in her answer, Fol. 30-31, does claim

that the second purchase of half was joint by her husband with

herself. But if the first deed had read that way, for what was

any substitution made, that being the character of the deed

substituted? In her sworn bill against the heirs of Back

(Fol. 21) she avers the contrary. (Fols. 16-17.) Her acknowl-

edgment of the deed to Drake to bar dower (Fol. 3), and ‘the

whole drift of the facts contradict her and sustain Mr. Weather-

- ford. She denies that Drake or Winfrey were ever in posses-

sion of the lands, or that thev cultivated the same with her.

(Fol. 33.) In this she is contradicted by Drake. (Fol. 73.)

She joins with Drake in the bill to;compel Winfrey to take

the title, and there she states the case as Mr. Weatherford’s

testimony describes it.

See that case, stated in 33 Ark. Rep., (fol. 25.)

She makes the deed to Drake to relinquish dower on her

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husband’s sale of bis -half. With this Mr. Weatherford had

nothing to do. It was the work of the Memphis lawyer of

Drake. She states in her bill against the heirs that it was for

the relinquishment of dower. (Fols. 15-16.) She states in

her deposition in this case (Fol. 21) that she thought she only

relinquished dower.

She states in a letter to Weatherford, “that it is Drake’s

half of the land that is sold for taxes, and not mine” (hers).

(Fol. 84.)

Thus in every act and allegation of hers up to the time of

the answer in this case she confirms Weatherford and contra-

dicts her present position.

The purchases of Mrs. Buck and her husband of the two in-

terests being separate and distinct, and the first deed being so

drawn, no joint estate ever arose in them to give operation to

the rule of the common law that husband and wife being one

in law took per tout et non per my.

When an estate is conveyed to a man and a woman who are

not married and who afterwards intermarry, as they originally

took by moieties, they will continue to hold by moieties after

marriage.

2. Bl. Com. 182. Am. n.10. Citing 1 Inst. 5.

Moody v. Moody, Am. b. 649. 2 Cru. Dig. 511, 515, 448.

So distinct purchases, as here, and the deed of Shepard, ac-

cordingly, created an estate by moieties, and did not vest the

entirety in husband and wife.

The destruction of one deed and the substitution of a new

one did not affect the estate which was vested by the first deed,

and could not be divested except by deed of the vendees,

[7]

Admitting that such substitution, however, would have effect

according to the intent of the parties, that intent is shown by

the fact that it was made in the negotiation for the sale by

Buck to Drake and for the purpose of that sale; that it was

simultaneous with or subsequent to Buck’s deed to Drake;

simultaneous if Shepard was in Memphis with the other par-

ties; subsequent, if then prepared and dated, and executed after

their return to Arkansas.

The deed from Buck to Drake, made in the presence and with

the knowledge and joinder of defendant, Mrs. B., is competent

and conclusive evidence of the intent (Elliott v. Sackett, 108

‘U.S. 152. Cited in 109 U. 8. 352, and in 111 U. S. 228),

and of the fact that it was not intended to change the separate

estates of Buck and wife in their respective moieties, and so it

would support this bill as a bill to reform that deed, which,

under the general prayer, would be allowable.

It would be a reproach to the jurisprudence of an enlight-

ened age to allow a paper executed with intent to perfect a

conveyance so to operate as to defeat that conveyance, contrary

to the intent of every party to the transaction and upon grounds

purely artificial and technical.

ACKNOWLEDGMENT GOOD, OR CURED BY STATUTE.

On the second ground of error, it is clear that by the acts of

March 8, 1883, Sec. 3, and March 14, 1883, Rev. Stat. Ark.

1884, Secs. 683 and 684, the deed of Mrs. B. of January 2,

1869, is operative to convey the estate which it purports on its

face to convey, though the clerk mistook the object of the deed.

The deed is identified by the certificate as the “ within and

foregoing,” and it states, according to the statutory form, that

Sallie S. Buck, to the clerk known “to be the person whose

L 8 |

name appears upon the within and foregoing deed,” acknowl-

edged in the absence of her husband that she “ had of her own

free will signed and sealed the relinquishment of dower therein

expressed for the purposes therein contained and set forth, with-

out compulsion or undue influence of her said husband.”

Now when the deed is read, and it appears to be the joint

deed of husband and wife, and it also appears that it is not a

relinquishment of dower, but a deed in fee with warranty, it

then at once becomes apparent that the clerk has attached a

printed form, and instead of correcting it has allowed the words

“the within relinquishment of dower” to stand unerased and

uncorrected ; so that, though she acknowledged what she had

done (2. e., executed the deed), the clerk states her acknowl-

edgment to be of what would be a different paper.

It is therefore a mere discrepancy in the description of the

paper which might. be fatal if its identity was otherwise in any

way doubtful; but as it is beyond question that what she

acknowledged was her act, “the within deed,” the misdescrip”

tion can not raise even a doubt.

If it did, the statute is a perfect cure and the joint interest of

the wife passes by it. Suppose the clerk had said, instead of

“relinquishment of dower,” the within “ title bond,” and the

within was, as here, a deed, could any doubt arise as to what

was meant? Yet there the mistake would be unaccountable ;

while here the error is one of the most natural conceivable

from the frequency of such relinquishments.

The statute of March 8, 1883, declares that “ all deeds shall

be held valid to pass the estate which such CONVEYANCE purports

lo transfer, although such acknowledgment may have been on any

account defective.”

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[9]

The policy of such a statute was discussed in this court in

Webb v. Weatherhead’s Less., 17 How. 576. The character

of such legislation entitles it to a most favorable construction,

while the constant repetition of such acts in every State, and

especially in Arkansas, and the fact that this act is accompanied

by one of six days later date to the same effect, gives this con-

struction the strongest possible foundation.

But the courts of Arkansas have spoken in the construction

of this and other like statutes.

In Reed v. Hart, 45 Ark. 41, they held it to apply to a case

pending in the Supreme Court at the time of its-passage, and

reversed a judgment right when made.

In Green v. Abraham, 48 Ark. 420, the court held a deed

acknowledged by the grantor before himself good by virtue of

the curing act, though the acknowledgment was void when

made. Citing Cooley Const. Lim. 463.

In Apel v. Kelsey, 47 Ark. 413, acknowledgment before a

J. P. in Ohio, void, but cured by act of March 8, 1883.

In Johnson yv. Richardson, 44 Ark. 372, the act of March 8,

1883, is held to cure acknowledgment of a married woman, the

statute excepting from its operation minors and insane persons,

‘and not excepting married women. In this case the deed was

held to pass the married woman’s estate, though there was no

privy examination at all, and the acknowledgment was in the

form for persons sut juris.

ESTOPPEL IN PAIS,

Mrs. Buck’s act in joining in that sale, her statements in her

two bills, and her parol] statement to Weatherford, her letters

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: to him, acted upon by Appellant Hunt, form an estoppel in

pais on every principle on which such estoppels operate. These

acts were both when a widow and when a married woman.

They were acted upon by Hunt.

Stowe v. U.S. 19 Wal. 13.

Morgan v. C. & A. R. R. Co., 96 U.S. 716, citing Bk. od

v. Lee, 13 Pet. 107.

Mercht. Bk v. St Bk. 10 Wal. 604. See also III. cases

cited in same case.

Baker v. Humphrey, 101 U. S. 494.

Dickerson v. Colgrove, 100 U.S. 578.

Ogilvie v. Knox Ins. Co. 22 How. 380.

Laughlin v. Mitchell, 121 U.S. 411.

The law of Arkansas is in strict accord with the general rule

on the subject of estoppel.

| Trapnall v. Burton, 24 Ark. 399. |

Shall v. Biscoe, 18 Ark, 164. (See Pike’s brief in this .%

case.)

Rayburn v. Pryor, 14 Ark. 505.

Bramble v. Kingsburg, 39 Ark. 131.

| Gill v. Hamlin, 38. W. Rep. 518.

If these statements were untrue, but were made in such

manner that a person investigating the title would be liable to

be deceived by them, and was deceived by them into the belief

that the title was good, and made advances and afterwards

purchased in this belief so induced, that would be a clear case

of estoppel by acts in pais. |

ESTOPPEL OF RECORD.

The decree in the Chancery Court of Desha, Fols. 23-24,

declaring her right to one undivided half of said land, and

[11 ]

vesting title in her and quieting her title, is an express adjudi-

eation of her right to an undivided half and no more, and of

Drake & Winfrey’s right to the other half. She files that bill

to remove a cloud on one-half the land, stating Drake’s pur-

chase of her husband’s half, and procured a decree with Drake

before the court as defendant to her bil), that he was entitled to

the undivided half bought by her husband separately from her

purchase.

Fols, 23-24.

On technical grounds a party can not claim one-half his

rights in one bill and then file a bill to get the other half. He

is bound to embrace his whole cause of action in one suit.

See Stockton v. Ford, 18 How. 418.

The rule is well stated in Stark v. Starr, 94 U.S. 477,

though that case was an exception.

The decree of the Supreme Court of Arkansas (33 Ark.

Rep. 119, which, under the statement in the bill and the clerk’s

certificate, is legal evidence of the decree) is conclusive as an ad-

judication of the title of Drake in the whole premises, and of

the obligation on Winfrey to take the- title, and that his title

was good against Mrs. B.

Mrs. B. joins in this bill with Drake as purchaser and owner

of one-half and compels Winfrey to take it.

These cases adjudge the very points now raised, and on the

principle of Minn. Ass’n v. Canfield, 121 U. 8S. 295, are con-

elusive.

The devolution of the title from Winfrey to Hunt is subject

to no question in this case.

[ 12]

The decree in the Supreme Court of Tennessee as to tho-re-

scisson of the sale from Drake to Winfrey is of no moment in

this case. It was conditional on execution of a reconveyance,

which was never made. If it had taken effect it would operate

merely to revest the title in Drake, and his deposition in this

ease would estop him from objecting to a decree in favor of

Hunt; and tie objection which he waives cannot be taken by

the defendant.

It is.clear that W. A. Buck and wife bought each a‘ one-half

interest in the land. This was unquestionably the original]

status of the title. If defendant obtains more than this, it

must be under the deed drawn by Messick, by which Shepard

conveys to her and her husband jointly. She disaffirms and

denies this verbally, by letters and by solemn pleading. There

is estoppel in pais and of record to preclude her from taking

this view of this deed. Its purpose was solely to perfect what

Drake’s lawyer supposed to be a defect in the title to the one-

half interest of W. A. Buck, which was being conveyed to

Drake. If this is true, then the adjudication in ease of 8S. 8S.

Blackburn and the heirs of W. A. Buck (Ree. p. 9) is correct.

If this is not true, why did defendant join in the deed to

Drake? If she claimed under the second deed from Shepard,

and joined for the purpose of conveying, along with her hus-

band, a one-half interest to Drake, then the result is the same

as if, under the individual purchases of herself and husband,

she joined for the purpose of waiving her dower in her hus-

band’s one-half interest. If she did not join for one of these |

purposes, then why was it that, claiming under the sécond

deed from Shepard, she intended only to waive dower? Was

it that she obtained the second deed for Shepard to sign in or-

der to correct the error then existing in the title, so as to make

a title with survivorship, and then joined for the purpose of

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[ 13 ]

waiving dower only? This is the only view that can give her

more than one-half interest, and this view is so full of contra-

dictions as to make it inconceivable that an attempt should be

made to prove it. .

She myst here prove that it was under a mistake that she

and her husband (Buck) purchased distinct undivided half in-

terests, subject to the agreement ‘to actually partition; that it

was under a mistake and by overweening influence that she

alleged and swore that she joined in the deed to Drake for the

sole purpose of relinquishing her dower right in W. A. Buck’s

one-half of said land, and that in reality she joined for the

purpose of waiving dower which she did not have.

Is there anything in the proof to show that there was any

mistake in the original purchases by 8S. 8S. and W. A. Buck?

Is there anything to suggest that, when Drake’s lawyer drew

a deed from Shepard to Buck and wife in order to cure what

he supposed to be a defect in the title to W. A. Buck’s one-

half, the parties intended to have the title so fixed as to destroy

the right of Buek to convey his interest, which he was then in

the act of conveying? Such an intent would be a fraud on

Drake. Assuming the title in S. S. and W. A. Buck under

the second deed from Shepard, is there anything to show they

did not intend to convey a one-half interest in the land to

Drake?

J. B. HEISKELL.

.

APPENDIX.

From Mansfield’s Digest of Statutes of Arkansas, 1884. +

Sec. 683. All deeds and other conveyances recorded prior

to the first day of January, 1883, purporting to have been .

acknowledged before any officer, and which have not heretofore

been invalidated by any judicial proceeding, shall be held valid

to pass the estate which such conveyance purports to transfer,

although such acknowledgment may have been on any account

defective (excepting only cases where such conveyances shall

have been executed by minors or insane persons); provided,

that the record of all such instruments shall be as valid as if

they had been acknowledged and recorded according to law. '

Act of March 8, 1883, sec. 6. :

Sec. 684. All conveyances and other instruments of writing

authorized by law to be recorded, or which have heretofore

been recorded in any county in this State, the proof of execu-

tion whereof is insufficient because the officer certifying such

execution omitted any words in his certificate, or because such

officer failed or omitted to attach his seal of office to such cer-

tificate, or attached to any certificate any seal not bearing the

words or devices required by law, or otherwise informal, shall

be as valid and binding as though the certificate of acknowledg-

ment or proof of execution was in due form and bore proper

seal.

Act of March 14, 1883.

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