Youngblood v. Vastine.

creditor or bona fide purchaser for value. Does the conveyance of the heir, or donee or devisee, who, as such, never had title, made to a purchaser for value, and without notice, operate to divest the title conveyed by the unrecorded deed, and, bringing it in another line of conveyances, vest it in subsequent purchasers?" This question the court, on the authority of Ralls v. Graham, 4 Monr. 120, answers in the negative.

Our own court, in McCamant v. Patterson, 39 Mo. 110, 111, seems to recognize the same doctrine, though, from the peculiarity of the title to the New Madrid grants, the question, in its general application, could not have arisen in that case.

Other authorities, however, equally respectable, have held, that the heir of the grantor in an unrecorded deed can convey a good title to an innocent purchaser for value. The supreme court of Pennsylvania, in Powers v. McFarren, 2 Serg. & Rawle, 44, in giving its opinion, remarks that "the purchaser for a valuable consideration, seeing no deed on record, had a right, under the sanction of the recording act, to take for granted that the whole estate had descended." The same question was raised in McCulloch v. Eudaly, 3 Yerg. (Tenn.) 346, and, in sustaining a deed from the heir, the following language is used by the court: "But it is contended that this (the saving to subsequent purchasers) only applies to cases where the purchase should be made from the same vendor by whom the prior deed was executed. It is true, the subsequent purchaser must hold under the same title; but whether he holds under the ancestor or heir, it can make no difference. The estate is thrown upon the heir, with all the rights the ancestor enjoyed, and subject to all incumbrances he had created on it."

The subject has also been considered in the state of Illinois, in Kennedy v. Northrup, 15 Ill. 148, and, after reviewing the authorities, the title from the heir was sustained. "After much reflection," says the judge who delivered the opinion, "I am satisfied that this is the true and proper construction of the statute. It meets the object designed to be accomplished by the law, and is within the reason which gave rise to the enactment. It was the object of the legislature to make patent the titles to real estate, that purchasers might know what titles they were acquiring. Where a deed is not recorded the title is apparently still in the grantor, and the law authorizes purchasers who are ignorant of the conveyance to deal with him as the real owner. In case of his death the heir becomes

Youngblood v. Vastine.

the apparent owner of the legal title, and it is equally important and equally as just that the public may be allowed to deal with him as with the original grantor, if living."

There is no substantial difference between the statutes of the different states whose decisions I have quoted and our own. Different language is used, but the same result is aimed at, some expressly declaring unrecorded deeds to be void against subsequent purchasers, while ours negatively does the same thing by saying that no such instrument shall be valid except between the parties thereto, etc.

The discrepancy in the authorities has doubtless arisen in part from the endeavor to reconcile the statute with the subtleties of the old law of tenures, which treats a title as a substantial entity, and almost applies to it the powers of locomotion. The attempt involves the reasoner in contradictions, for in one breath it is said that the title passes by the deed to the grantee, and still so remains with the grantor; that in a contingency it may again pass from him to another grantee; but if the grantor dies it cannot descend like all his other titles, but goes back to the original grantee, with whom it has always remained.

It would be more rational to say that the law controls the manner in which rights of property are acquired, and that it will not favor any mode of acquirement that shall encourage fraud. Thus purchasers are required to spread upon record the evidence of their ownership, and if others suffer from their neglect the law will not recognize such ownership. Or, in using the language of the law of tenures, we might perhaps say that in a conveyance the absolute title rests with the grantor and his heirs in abeyance, to vest irrevocably only upon the record of the deed, and that it will vest in the first grantee, in condition to receive the grant, who shall so place it upon record.

The circuit court held, that the defendant's deed from the heirs of Mrs. Wright conveyed the whole estate, whereupon the plaintiff took a nonsuit, and his motion to set the same aside was overruled. In this the court committed no error, and, the other judges concurring, the judgment will be affirmed.

Woods v. Hilderbrand.

WOODS, appellant, v. HILDERbrand.

(48 Mo. 284.)

Conveyance-alteration in by grantee - Mortgage.

An alteration in a deed of conveyance by a grantee after delivery does not affect the legal title or re-invest the same in the grantor, although a fraudulent and material change may disable the holder from bringing an action upon its covenants.

A mortgage does not convey the legal title, and a defendant in ejectment cannot set up a mortgage with which he is not connected as an outstanding title.

THE facts are stated in the opinion.

Ewing & Smith and Burke & Howard, for appellant.

Lay & Belch and Owen & Wood, for respondent.

BLISS, J. The plaintiff brings ejectment, and relies upon a sheriff's deed. He purchased at the sale sundry parcels of land, including the one in controversy, and, after receiving the deed, altered, as is claimed by defendant, the description of one of these parcels, but not the one he seeks to recover in this action. This change in the deed the court held to be fatal, and decided that the whole deed was thereby vitiated, and refused to consider it in passing upon the plaintiff's title.

The defendant was also permitted to prove that the plaintiff, after receiving the deed, mortgaged the property to one Hinkle, and that the debt secured by the mortgage was overdue; but Hinkle had not foreclosed or sought to take possession under the mortgage, and defendant does not claim under him. The court, however, held it to be an outstanding title, of which the defendant could avail himself in this action.

In both these positions the court committed manifest error. It is a mistake to suppose that an alteration in a deed of conveyance, after delivery, operates to reconvey the title to the original grantor. A total destruction of the instrument will not have that effect, but the title remains in the grantee, and he may bring ejectment upon it. The title passed by the deed; it has performed its office, and its continued existence or integrity is not essential to the title, although a fraudulent and material change may disable the holder VOL. II.-65

Woods v. Hilderbrand.

from bringing an action upon its covenants. 1 Greenl. § 568; Lewis v. Payn, 8 Cow. 71; Jackson v. Gould, 7 Wend. 364; Herrick v. Malin, 22 Wend. 388; Alexander v. Hickox, 34 Mo. 496.

Whether a deed thus altered may be used in evidence of the real grant is, perhaps, not well settled. In Withers v. Atkinson, 1 Watts, 236, and in Chesley v. Frost, 1 N. H. 145, it is held that a fraudulent alteration of a conveyance by the grantee, in a material matter, utterly destroys it; and while the title thereby does not re-invest, the deed cannot be used by him for any purpose, either to sustain an action upon the covenants or as evidence of his title. But in Doe v. Hirst, 3 Stark, 60, and in Jackson v. Gould, 7 Wend. 364, an altered deed was allowed to be read in evidence to sustain the title created by it. We are not, however, called upon to give an opinion adverse to the doctrine of Withers v. Atkinson, supra; for in the case at bar the alteration, so far as the land in controversy is concerned, cannot be considered a material one. The plaintiff purchased at sheriff's sale several distinct parcels of land. They were all sold separately, and separate deeds might have been executed. The description of one of the parcels - from what motive does not appear was changed by the grantee. Without considering what might be the effect of this change as to that parcel, we cannot see how it should affect the conveyance as to the others. As to them the alteration was immaterial, and the deed remains in full force, and should have been received as evidence of the plaintiff's title.

The ruling of the court upon the second point contradicts the long and well-settled doctrine as to the relation of the mortgagor and mortgagee before entry or foreclosure. "The modern doctrine is well established, that a mortgage is but a security for the payment of the debt or the discharge of the engagement for which it was originally given; and until the mortgagee enters for breach of the conditions, and, in many respects, until final foreclosure of the mortgage, the mortgagor continues the owner of the estate, and has a right to lease, sell, and, in every respect, to deal with the mortgaged premises as the owner, so long as he is permitted to remain in possession." Kennett v. Plummer, 28 Mo. 145. The case of Meyer v. Campbell, 12 Mo. 603, is relied upon as establishing the doctrine sustained by the court below; and such a position seems to be indicated by the court, though the question is not directly decided. The mortgagee himself, in possession after forfeiture, might doubtless set up his own title against that of the mortgagor

Holt v. Baldwin.

(McCormick v. Fitzmorris, 39 Mo. 34), but, as against all the world besides, the mortgagor is the owner, and his titie cannot be defeated by showing that the property is pledged to a third person for the payment of a debt. Hill. on Mortg. 162, § 15; Raynor v Wilson, 6 Hill, 469; Collins v. Torry, 7 Johns. 278; Jackson v. Pratt, 10 id. 387; Den v. Dimon, 5 Halst. (N. J.) 156. If it was the intention of the court, in Meyer v. Campbell, to hold a contrary view, it is not clearly expressed; and, with the clear statement of the relation of the mortgagor and mortgagee in Kennett v. Plummer, and the universal holding in other states, we must unhesitatingly hold the doctrine in Missouri, as well as elsewhere, to be, that a defendant in ejectment cannot set up a mortgage with which he is not connected as an outstanding title. The fact that ejectment may be brought in Missouri by the mortgagee, while it will not lie in New York, does not invalidate the New York authorities upon the present question; for only the mortgagee himself may avail of his right, and it is of no consequence, so far as strangers are concerned, whether he have only the right to foreclose, or the right of ejectment as well.

The judgment of the district and circuit courts are reversed and the cause remanded for a new trial. The other judges concur.

HOLT V. BALDWIN, appellant.

(46 Mo. 265.)

Contracts-Liability of father on contracts of minor child.

The only ground upon which a father can be made liable for debts contracted by a minor son is that of an express or implied agency, and, in an action against the father to recover for a purchase made by the son, it is for the jury to determine whether such agency existed.

THE case is stated in the opinion.

Ewing & Smith, and Burke & Howard, for appellant.

J. W. Moore and Lay & Belch, for respondent.