458
,FEDERAL
taot with a poisonous subshmce," that fact:tnay;J;>e: shown 'under.a simsolely from acrMent. pIe denial oithe averment that death The demurrer is sllstained in alll)f the l'espects heretofore indicated, but 'with leave.to amend within three days..
BmD' .,.MCCI..EI,LANri' STuMPF & ,Ii
PELZER
BRICK
Co. et al.
, (Oircutt Oourt,i lV. D. Missouri, lV. D. Maroh, 1891.):
9.
T.u:·Tf'1'llIC.....JUDGMENT-(1LSRIOA.L ERRORS.'
a.
separate suits on four a,eparatetax-bills under the S8llle, grading contract'We1'6, simUltaneously brought against defendant, a clerical error by the clerk of. the., court in transposing the court numbers in two of the cases on entering judg; lIlent,l/o tllat they do not, qorrespond with the numbers given. in the orders and proofs of pUblication, dolls not invalidate the judgment. '
8.urE.....AO:ll:NOWLEDGMENT OF DEED.
A showed on its face that the.judglllent ordering the sale was rendered in, and' the execution issued out of, the special .law and equity court of Jackson .county,Mo. The act creatingthis court makes the clerk of the circuit court of that coun tyetX'OfJlcto clerk of the special oourt. . PeW, that a certificate of acknOWledgment of the' deed, wherein the officer taking it descril;led hilllself as" clerk of the circuit· court and ex o1ftcio clerk of the special law and equity court, " and which then reoited that dUl'lDg ,&sossion or- "tbe court the sheritr acknOWledged the'deed, would be presulIled to have been taken in the special court, as there was no' necessity for the.certifioate to have recited· anything about the clerk's being etX o1ftcio olerkofthat,court had the acknowledgment.been taken in the circuit courl .' .
·· SAME.
Gen. St. Mo.. 1865, c. 160,555, requires deeds of. land soldat:j:ndicialsales to be acknOWledged before the "clerk of the circnit court" of the:county in which the land is situated. 'Held, that Laws Mo. 1878. pp. 195, 197, which' created the special law and equity.oourt of Jackson county, and Which designated the places at which land sllould be sold under execution issued out of that court, and which provided that such sMes should. be governed by the general statutes regulating execution sales, conferred on the special courtjurisdic.tion and control over such proceedings from the renqition of judgment to its consummation by execution, sale, and deed; and that, in view of the fact that sheriff's deeds, involving a large alllount of property sold, during a period of 15 years, under judglllents of the· spedal court, have been constantly acknowledged before the clerk of that court, a taxcdeed, so acknowledged, will not'be held void because of the failure to take the acknOWledgment before the olerk 01 the. circuit 'court, Explailliug Mers v. is. Mo. 333, and Lynde v. ,68 Mo. 360.
,
At Law. L..J!'. Bird,pro se. . c. (); Tiche:nor anli Ohase kPowe71, for defendants. PHILIPS, J. r.I.'pis is an action of ejectment to.recov:e)!possession of lot 28 in block 3 of Old town, in City, Mo. Hlmry:Welland is
commo,nsource of title. .:Plailltiff's title Gomes by mesne .conv:eyances unqer ,sajl,i .. ,The aqr,nitted o( the property is about
BIRD t1. M'CLELLAND STUMPF &; PELZER' BRICK MANUF'G CO.
459"
$6,000, and is occupied by the said ll1anufacturingcompany as a brickyard, and has been so occupied and used by them since the early part of 1882. . . The first deed under which the defendants claim title is predicated of a judgment rendered in the special law and equity court of Jackson county against the said Welland for the enforcement of a lien against said lot on a tax-bill for grading a street. Judgment was rendered September 24, 1873, and at the sale thereof Thomas Tackett became the purchaser, and received a deed in form therefor from the sheriff on June 6, 1874. Service in said action was obtained by order of publication against the defendant WeIland on the ground of non-ref;idence. Objection is made to the sufficiency of the affidavit on which the order of publication was made. The affidavit was made by James Gibson, without disclosing whether he was attorney or agent for plaintiff, or stating other special matter qualifying him to make the affidavit for plaintiff. This is claimed by plaintiff to invalidate the affidavit. It is sufficient to say that a gimilar objection, and under a similar statute, authorizing orders of publication, was overruled by the supreme court of the state in Gilkeson v. Knight, 71 Mo. 403, and reaffirmed in Johnson v. Gilke.son, 81 Mo. 55. It is next objected to this deed that there is a fatal variance between the deed and the property described in the order of publication and in the judgment. The record shows that on June 4, 1873, said Tackett instituted four suits in said court against Raid WeIland on four separate tax-bills against four separate lots, alleged to be owned by defendant, and brought under the same grading contract. These cases in the orders of publication were numbered, consecutively, 184, 1815, 186, and 187. The publication as to lot 28 in· block 3 was numbered 186, in which the amount of tax-bill sued on was $8. 26. The record shows that on the 3d day of September, 1873, proof of publication was made in all those cases separately, and on the 24th of said month separate judgments were rendered in the four cases. From some cause, evidently a. mere clerical error of the clerk, the numbers of the cases as entered in the judgment against lot 28, block 3, was numbered 187', instead of 186, as in the order of publication. Does this discrepancy invalidate the judgment? The number given the case is a mere device of the clerk as .0. convenient means of tracing the case. It is 110t part of the jUdgment any more that the number of a municipal bond or other negotiable in..; stmment isa part of the bond or note. Wylie v. Railway Co., 41 Fed. Rep. 625,loc.cit. Viewed as a means of identification, taking the whole record together, it is hardly possible that a person of ordinary prudence or observation would be misled by this variance. Separate of publication and prools' of publication were made in the cases. .In contemplation onaw, the defendant was in court when the judgment was rendered. Judgments were likewise rendered on the same dayin allthe cases. It·is perfectly apparent on the face of thewnole record that the numbers 186 and 187 were accidently tranllposed', as the judgment in 186 is against the same Jot. 267, and for the same debt as in the order
460
FEDERAL REPORTER,
vol. 45.
of publication in 187; and the judgment in 187 is against the same lot, (28,) and for the same debt as in the order of publication in 186. This mere clerica1 error does not affect the judgment of foreclosure against lot 28. A more serious objection to this deed arises on the uncertainty of the acknowledgment, which is as follows: "State of Missouri, Jackson County-ss.: I, Wallace Laws, clerk of the circuit court and e.v o.tficio clerk of the special law and equity court within and for the county aforesaid, do hereuy certify that C. B. L. Boothe, sheriff of Jackson county, whose name is subscribed to the foregoing deed as maker thereof, this day, and during the session of the court aforesaid, personallyappeared in open court, and acknOWledged the same to be his voluntary act and deed for the uses and purposes therein expressed, as is shown by tile records (}f said court," etc.
It is not easy for the court to say from this certificate in which of the two named courts the acknowledgment was made. The officer taking the certificate described himself as clerk of two courts, and then recites that "during a session of the court aforesaid personally appeared in open court." Two .courts are first named, and. the expression, "the court aforesaid," applies to only one court. The certificate of acknowledgment is essential to the validity of a sheriff's deed under the state statute, and it has been repeatedly held that the imperfection of the certificate, which is of suhstance, cannot be helped by any extraneous evidence,-not even by the aid of the record of the court in which the acknowledgment was taken. Samuels v. Shelton, 48 Mo. 444; lI1cClure v.lI1cClurg, 53 Mo. 173. While this is true, there is another rule for ascertaining the application of the language of such certificate, and this is, reference may be had to the entire instrument. It is permissible to look at the deed itself in order to ascertain the import of the terms of the certificate. Samuels v. Shelton, 8upra, 448. By, reference to the deed in this case it appears from its recitations- that the judgment was rendered in, and the execution issued from, the special law and equity court of Jackson county. By reference to the act creating this court we find that the clerk of the circuit court of Jackson county was made ex officio clerk of the special law and equity court. If the deed had been acknowledged in the circuit court, there would have been no occasion for the certificate to have recited anything about the .clerk being ex officio clerk of the law and equity .court. So that it is most reasonable to infer from the whole record of the deed and the certificate that by the use of the words" and ex officio c,lerk of the special law and equity court" the clearintendment is that the acknowJedgment was taken in the latter court, and this corresponds with the real fact. The objection then is· made that stich deed could only have been B(}o . knowledged in the circuit court of Jackson county. This objection is formidable, in ,view of the holding of the supreme court of the state on parallel statutes. The general statute then in force, (section 55, c. 160, Gen. St. 1865,) and which is yet the law, required that "every officer executing any deed for lands," etc., "sold under execution, shall a(}o
Bmn
v.
M'CLELLAND STIDll'F &: Pll!Lz'ER BRICK MANUF'a CO.
461
knowledge the same before the circuit court of the county in which the estate is situated." Section 56 provided "that the clerk of such court shall indorse upon such deed a certificate of the acknowledgment or proof, with the names of the parties to the deed, and the description of the property thereby conveyed." This statute cOVflrS all execution sales of real estate, and, of consequence, applies to sales under judgments of the special law and equity court, unless some other statute excepted deeds made on execution sales under its judgments from the operation of the general statute. The act (Laws Mo. 1873, p. 195) creating such special court contains no such exception. While it conferred jurisdiction on this court over the subject-matter of the special tax suits, to render judgments and enforce them by sales, there was no provision made for such sales being conducted at said court. To remedy this defect the legislature afterwards passed a supplementary act, (Id. p. 197,) which provided in section 2 that"All sales. of real estate made under or by authority of an e.xeclltion or eftecutions, issuing under any judgment of said court, shall be made at Kansas City upon all executions issuing at that city; and, upon all executions issuing upon all jUdgments rendered at Independence, such sale shall be made at the court-house/door at Independence, during the session of llaid court at Independenc:e, and in all respects shall be governed by. the general statutes regulating llales under execution."
There is contained in this section no express provision respecting the acknowledgment of the deed. But it certainly was the intention of the legislature by this supplemental act to place judgments, execution, and sales thereunder on the same footing with like proceedings in the circuit court, and to confer on the special court jurisdiction and control over such proceedings, from the rendition of judgment to its cOllsummation by process of execution, sale, and deed. There would be little question in my mind that such waS its effect but for the holdings of the supreme court of the state on a somewhat parallel statute. In Mera v. BeU,45 Mo. 333, the case was that the legisl.a;ture had created the common pleas of Cass county, with jurisdiction to render judgments binding real estate, and providing that such judgments shotild have like effect as judgments of the circuit court, and should be proceeded upon to execution and sale in the same manner as prescribed by law for jUdgments in the circuit court. It was held that, as there was no provision in the act authorizing salesunder executions issued therefrom to be conductedatand during the session ofthe common pleas court, the sale should conform to the general provisions of the statute at large regulating judicial sales, which required that they should be conducted at and during the sitting Of the circuit court of the county in which the reil1 estate is situated. This case was followed in Lyrtde v. Williams, 68 Mo. 360. In that case the sale was made underjudgmenti rendered in the probate court of Linn county. The act creating said probate court provided, in thesi'tth section, that "all sales on executions shall be governed and conducted in like manner as sales are now or may hereafter be in the circuit court in this state." It was again held that this act did not authorize sales un-
:'-1
,otherwise thanll,Sprescribe;d by the gElI:l.erallaw,. This pronounced view of the fact seventh secto, :make dee-ds under sales befqre said probate court. , , , ,It iEl from the language of the learned judge ,who wrote this last opinion ;th{iJ his conclusion was l:\omewhat constl"lj,ined by that reached in, Mers v. BeUlsupraj and, it iaW, be observed, in the MeTs Case that Judge WAGNER 'YRs, led somewhat to the conclusion, reached by him by .eason of the fact that' as in the country districts of the thenconducte<;'l,attracted, to their sessi()Ds large numbers of people"and it was generally expected that such occasions would secure a of bid,ders,it must have, been in the mind of the legislature ,that ,such sales should not be conducted ,at other town than the as in thec!':se 9f, the, cOrn:mon pleas court Cass county, as the town of Pleasant Hill, where the common pleas court sat, was near the )in 13 qfthe county, and from the county-seat. This reason could'hllove n,o applica,.fiof) to the case under considerlltion, 'because it is a well-k.no,¥n pubH£; fact,that the.sessionsof the special law and equity courtof,Jl\ekson county were :heldinthe same court-house as the circuit court, and it waswS() a court of as much, if not more, public attendancetMhthe<:il'cuittJourt. It is also a fact of such publicity that this court, sitting within the same city as that of the speeiallaw and equity, ppurt" shouldt8:ke, notice .of it that sales under j udgmentsren. dered «ourt were only condQcted while it was in session, but thnt made py on such sales were ncknowledged bflfore thatcqu-\,t;that a large thus sold and conveyed, "nd UW' over a perioclof 15 years, has stood so far as litigation in respect to such acknowledgments jscQJ;lcerned." ,Unuw, such condition of affairs, it seems to me that hold suqhacknowledgments to be void upon so technical that tby the in the cases above considered wPll14 be lUQsthul'tlul to the public interests, in disturbing titles to rel).l esta.te, WI1ich 'ha\Te,long ,reposed, and the ,values of which in the progress so nlateriallY enhanced. We must tperefore, luthis <;R!'Ie to follow what rmght seem to be the logic of the, hrlc¥/lgs of lql;l,sta,t,e supremecour,t, on equivalent uncleI' of public, policy and judipial conserva'ham.,;" " ' . As fit follQws that the deed, under ,the, ta;x:-sale inqu,estion is. valid, it toexpreslil al1M opinio,l1,/¥l to the validity of thes1.l bsequent and the, (leeds, made thereon 1 as the i;}ffect: :9fj :the'deed llu,deJ: "the specil,ll jpdgznent enfor<;ling the lien of the grndipg:;tll.fIt swept the plaintiff claims. It r6i!91ts, .thl!J., the {Or tJ;1e del mdant. Judgment accord-
of
ingly.
iff
:')';,
IN RE imCCIARELW.'
468
In re
BUCCXAREI:.LO
et al.
(Oircuit Oo'U'I't, S. D. New Yo"".ll'ebruary 28,'1891.) atMlGRATION·-LANDING Oll'
Tberegulation of the secretary of the treasury declares tlHit the superintendent' of immigration at the port of Ne'w Y drk 'sball examine into theconditiQn of PS&-l Bengers arriving at that port, and report to tbe collector whether any person is within the prohibition of Act Congo Feb. 26, 1885. Act Congo Feb. 28. 1887, amending tbe act of 1885, provides that if, on such examination by the superintendent, any person shall be found within the probibition of tbe act, and tbe same is reported to the collector, sucb person shall not be permitted to land. Held, that such power of determination is vested in tbe superintendent of immigration, and not in the collector.
,OJ' COLLEC:rOR.
'.'
·
At Law. Robert D. Benedict, for petitioners. Edward Mitchell, U. S. Dist. Atty., and John O. Mott, Asst. U. S. Dist. . r if Atty. ,for collector. ,
W ALLACE,J. Under regulations of secretary :of the treasur;K of the ,the duty is devolved upon the superintendent of imn:ligrittion at the port of New York, or the dfJicers assign¢q. and employed under his superviSion, to examine into the condition of passengers arfivingat thatport,.imd report'#nhecollectorin in such examination there htlsbeen found any person included in'the prohibition of act ofcppgress of ,Fepruary 26, as amended'Feb· ruary 28, 1881.: Section 6 of the amendatory. aet:or February 23,1887, declares 'that 'if in ,such examination there shall be found any person' included in the prohibition 'of theact,and the same is reported in writing to the ool1'ecto1', such person shall hot' be permitted to land; 'Undoubtedly, under the powers conferred upon the secretary pf the, and 7 of the atnendatory act, the power of determination might have been conferred .by the secretary'ofthe treasury upon the collector. it has not beep conferred upon the collector, and But by devolves upon the ,superintendent ofimmigfation, qr the officers acting under his Bupervision; ConflequentlY,"the collector has no judicial functions, and is not called upon to decide whether any passenger belongs to anyone of the prohibited classes. It follows that, if there was any competent evidence to justify a report by the superintenderit of immigration or the acting superintendent that the petitioners migrated under a contract to perform labor or service, the rlecision of the superintendent or of his aSElistant is conclusive. This court cannot undertake to weigh oonflictingeviderice for the· purpose of Whether a' correct elusion was reached. Ihhe only evidence of a contract with thepetitionel's werethatcol,ltained in the letter from Nicola Grilli to Alberico Sel'anno, ahd the letter ftom Berafinoto Barsotti, I should hold; without hesitation, that it did not appear that the petitioners carrie' here un'der a efevious ,contl'aci:;. But the affidavits made by the eltligrsntsmay the letter h'ad'been written to Serafino by'Ba1'sotti,prorriising t& E1mploythem at specified wages per diem., and, in; that
