Table of Authorities

Brief Facts

Prior to his death, "A" transferred, by quitclaim deed, half of his share to his girlfriend "B". The deed was neither notarized nor recorded. After A's son "C" obtained an order for eviction against "B and registered it in the Recorders Office, "B" got the quitclaim deed recorded.

Issue

Discussion

Mo. Rev. Stat. § 442.020 provides that;

"Conveyances of lands

Conveyances of lands, or of any estate or interest therein, may be made by deed executed by any person having authority to convey the same, or by his agent or attorney, and acknowledged and recorded as herein directed, without any other act or ceremony whatever.

Mo. Rev. Stat. § 442.130, provides that;

"Execution of deeds and other conveyances

All deeds or other conveyances of lands, or of any estate or interest therein, shall be subscribed by the party granting the same, or by his lawful agent, and shall be acknowledged or proved and certified in the manner herein prescribed."

Mo. Rev. Stat.§ 442.150, provides that;

"Proof or acknowledgment, by whom taken

The proof or acknowledgment of every conveyance or instrument in writing affecting real estate in law or equity, including deeds of married women, shall be taken by some one of the following courts or officers:

(1) If acknowledged or proved within this state, by some court having a seal, or some judge, justice or clerk thereof, or a notary public; or

(2) If acknowledged or proved without this state and within the United States, by any notary public or by any court of the United States, or of any state or territory, having a seal, or the clerk of any such court or any commissioner appointed by the governor of this state to take the acknowledgment of deeds;

3) If acknowledged or proved without the United States, by any court of any state, kingdom or empire having a seal or the mayor or chief officer of any city or town having an official seal or by any minister or consular officer of the United States or notary public having a seal."

Mo. Rev. Stat. § 442.180, provides that

"Certificate to be endorsed on conveyance

Every court or officer taking the proof or acknowledgment of any conveyance or instrument of writing affecting real estate, or the relinquishment of the dower of a married woman, shall grant a certificate thereof, and cause the same to be endorsed on such conveyance or instrument of writing."

Mo. Rev. Stat. § 442.190.

"Certificate, how made

Such certificate shall be

(1) When granted by a court, under the seal of the court;

(2) When granted by the clerk of the court, under the hand of the clerk and seal of the court of which he is clerk;

(3) When granted by an officer who has a seal of office, under the hand and official seal of such officer;

(4) When granted by an officer who has no seal of office, under the hand of such officer."

Mo. Rev. Stat. § 442.230, provides that;

"Such instrument valid

Every such instrument thus acknowledged or proved shall be as effectual and valid as if such acknowledgment or proof had been made in accordance with the laws of this state."

Mo. Rev. Stat.§ 442.380, provides that;

Instruments to be recorded

Every instrument in writing that conveys any real estate, or whereby any real estate may be affected, in law or equity, proved or acknowledged and certified in the manner herein prescribed, shall be recorded in the office of the recorder of the county in which such real estate is situated.

Mo. Rev. Stat. § 442.400, provides that;

"Not valid until recorded

No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record."

In McCamant v. Patterson , 39 Mo. 100, 1866 Mo. LEXIS 241, it was held that;

"A conveyance unrecorded is good and passes the title as against a grantor and his heirs and devisees, and they are void only as against subsequent purchasers and mortgagees, without actual notice from the same grantors, whose deeds were first recorded."

It was held in Hatcher v. Hall , 292 S.W.2d 619, 1956 Mo. App. LEXIS 134 (Mo. Ct. App. 1956), that;

"The language of Mo. Rev. Stat. § 442.210, including the forms of acknowledgment which may be used in written instruments affecting real estate, is permissive and not mandatory; substantial compliance with statutory provisions pertaining to acknowledgments will suffice, although the law requires nothing more than such substantial compliance, it is satisfied with nothing less."

In Max Stovall Constr. Co. v. Villager Homes, Inc., 754 S.W.2d 5, 1988 Mo. App. LEXIS 908, it was held that;

"Mo. Rev. Stat. § 442.400 (1978) provides that an unrecorded deed is not valid except between the parties, and others who have actual knowledge thereof. Section 442.400 is for the benefit of an "interested" party."

In Smith v. Equitable Life Assurance Soc., 448 S.W.2d 588, 1970 Mo. LEXIS 1133, it was held that;

"Mo. Rev. Stat. § 442.380 requires recording of any instrument which conveys real estate or whereby any real estate may be affected. The instrument appointing a successor trustee transfers to him the title to the property which previously was vested in the predecessor trustee, and it is an instrument contemplated by § 442.380. Mo. Rev. Stat. § 442.400 provides that such instrument shall not be valid until after recording except in the case of parties thereto and persons with actual notice thereof. The effect of § 442.400 is not to make the instrument void prior to recording. The statute merely postpones the instrument's effectiveness as to parties and those persons who do not have actual knowledge."

In Henson v. Wagner , 642 S.W.2d 357, 1982 Mo. App. LEXIS 3287, it was held that;

"While Mo. Rev. Stat. § 442.400 declares that no unrecorded instrument shall be valid except between the parties thereto and those having actual notice, the recording statutes afford that protection only to subsequent mortgagees and purchasers for value. In Missouri an unrecorded conveyance is void only as to any subsequent purchaser or mortgagee for valuable consideration and without "actual notice." As those statutes are so interpreted, one seeking to avoid an unrecorded instrument must not only subsequently purchase but must pay a valuable consideration. As so used, the term "purchaser" is not confined to a grantee in a deed. The term includes one who contracts for the purchase of real property.In general, in determining the requirement of the payment of a valuable consideration, the rules applied are those developed in determining if a bona fide purchaser of legal title should prevail over previously existing equitable claims. In that connection, the purchase price, or a substantial part of it, must be paid, and the purchaser must be put into position where the purchaser cannot be protected or made whole."

Baker v. State , 796 S.W.2d 426, 1990 Mo. App. LEXIS 1440

In order to "verify" a written instrument that is executed in Missouri, the proof or acknowledgment must be taken by some court having a seal, or some judge, justice or clerk thereof, or a notary public pursuant to Mo. Rev. Stat. § 442.150(1) in accordance with provisions of Mo. Rev. Stat. § 442.155.1.

The tendency of judicial pronouncement is to uphold the validity of conveyance deed even though such deed is not prepared in strict compliance to procedural requirements.

Recording of conveyance deed is basically intended to protect subsequent purchasers who paid purchase amount. The judicial pronouncements are there which upheld the validity of unrecorded conveyance deed.

The strict compliance of procedural requirement shall be vital if the one party is challenging the execution of the conveyance deed itself by alleging undue influence etc.