Swink v. Thompson

Ewing, Judge, delivered the opinion of the court. This was an action in the nature of an action of ejectment to recover possession of certain real estate in Wright county. There was an answer filed, and on the trial the plaintiffs offered to read tlie deed of the sheriff under which they [338] claimed title, which was excluded, and they thereupon took a nonsuit and moved to set the same aside, which being overruled, they bring the cause here by appeal. The record shows that the suit was commenced and the proceedings had in Webster county. It is true plaintiffs’ attorney, in his brief, states that the suit was commenced in in Wright and taken by change of venue to Webster, but it does not so appear by the record, nor is the fact admitted by the defendants’ attorney. The judgment, therefore, for want of jurisdiction, must be affirmed. One or two points, presented by the bill of exceptions, though not necessary to be decided as the case is now presented, we deem it not amiss to notice briefly. The sheriff’s deed, under which plaintiffs claim title, was objected to because it was made to the heirs of Swink. Swink became the purchaser at the sheriff’s sale, but before a deed was executed he died, he having first paid the purchase money, and the plaintiffs, it is conceded, are his only heirs. The deed was properly made to the heirs. (Boone v. Moore, 14 Mo. 426.) Another objection to admitting the deed in evidence was that the clerk affixed to his signature thereto, as well as to the writs of fieri facias, under which the land was sold, a scrawl, and this, it is maintained, is not a seal. To all process issued by a clerk he is required to affix his official seal, if he have one, or if none be provided, then his private seal. (1 R. C. p. 338.) In this case it is admitted there was no seal of office. Formerly, in England, wax or some such tenacious substance was no doubt much used, but we do not think it was indispensable ; and in this country, especially in this state, we are confident usage and custom have dispensed with it and have sanctioned the use of the scrawl. As to what constitutes a seal by the common law, there has been some diversity of opinion. In the southern and western states generally, we believe, a mere scrawl annexed to the name has been held a seal; and the question has sometimes been [339] decided in reference to the common law, and in other cases according to local custom or usage. In other states where the adjudications have been different and in accordance with what the common law rule was supposed to be, wax or some such substance has been ■ deemed requisite to constitute a seal; and such also was the decision of this court in Gates v. The State, 13 Mo. 11. Chancellor Kent, in Warren v. Lynch, 5 J. R. 244, in holding a scrawl was not a seal, referred to and relied on Lord Cooke’s definition, sigillum est cera impressa, quia cera sine impressione non est sigillum. He admitted that the law had not declared of what precise materials the wax should consist; and that whether it was wafer or any other paste or matter sufficiently tenacious to receive an impression, was not material. Shepard, in his Touchstone, p. 122, says, if a party seal a deed with any seal besides his own, or with a stick or any such like thing, which doth make a print, it is good, for sealing is cera sigillo impressa. (See also 4 Cruise Dig. 27.) From the definition of Lord Coke and the interpretation generally given it by the courts, wax is merely used as a general term to denote a22y substance capable of relievii2g and retaining a2i impression, and as any instrument may be used for the pui’pose, the impression upon paper itself, without the use of any other substance, would be sufficie2it. (See Relf v. Gist, 4 McCord, 267; Jones v. Long, 1 Wash. 56; Bohannon v. Hough, Walker, 461.) If the seal, stick, or other histrument used, be impressed by the party on the plahi parchment or paper with i2itent to seal it, it is clearly sufficient. (1 Sug. Powers, 161, 301.) In McQueen v. Inhabitants of St. Paul Court Garden, 53 Eng. C. L. R. 231, an impression made hi ink with a wooden block in the usual place of a seal, was held a sufficient sealing. An impression on parchment or paper with intent to make a seal is sufficient. (Trotter’s heirs v. Rose, 3 McLean, 335.) In Whitby v. Davis, 1 Swan, 334, it is said that since wax, by which an actual seal was made, has gone out of use, the courts of nearly all the states have regarded the scrawl as a [340] substitute for the seal. (See also United States v. Coffin, Bee, 140; 13 How. U. S. 473-4; 5 Cal. 221; ib. 315.) Judgment affirmed; Judge Napton concurring. Judge Scott absent.