Dissenting. — I cannot subscribe to the foregoing opinion. I regard it as being utterly at variance with many decisions both of this and other courts bearing directly on the questions at issue; besides, as being the result of an entire misconception of the facts spread at large upon this record, and the necessary and legitimate inferences arising from such facts. I will briefly give the reasons why I think so :
I.
And first,, as to the validity of the sheriff’s deed to the Farmers’ Bank and Jno. W. Reid; so far as the deed itself is concerned, no objection can be taken to it. The point, and the sole point of objection urged in the circuit court, was that the certificate of acknowledgment does not support and is not in conformity with the deed, because of the fact that the deed was made and signed by Darius Gittings as sheriff, but acknowledged by Francis 11. Long, as sheriff. Let this objection be examined, and see what force it possesses.
The deed begins : “ To all to whom these presents shall come, I, Darius Gittings, sheriff of the county of Clay, State of Missouri, send greeting.” The deed then, after reciting the judgment rendered, the issuance of execution and its direction to the sheriff of Clay county, and its delivery to “ Francis R. Long, then sheriff of said county,’’ states that said execution “ was by said Long transferred and handed over to me, as his successor in the said sheriffalty, upon the expiration of his term of office.” The deed then recites that a levy of the execution had been made by Long on the property in controversy, among other, and that after such levy, Long had turned over the execution to Gittings as his successor. The deed also recites that “ I, Darius Gittings, sheriff as aforesaid, gave notice of the time *633and place of sale,” and then proceeds in the usual manner to the close in the name of “Darius Gittings, sheriff as aforesaid,” and is signed and sealed by him. On this deed is indorsed the certificate of acknowledgment already mentioned, which bears the same date as the deed.
Now, nothing is better established law than that á court is bound to take judicial notice of its own officers; they will judicially notice their signatures, whether any official designation is added to their signatures or not, and will know also, when their terms expire. Bliss Code Plead., § 199, and cases cited. Taking this legal presumption as a premise, it must be apparent that Darius Gittings, who signed and sealed the deed, acknowledged it; for otherwise in the very teeth of that legal presumption, of that legal knowledge, we must originate a presumption or inference of fact that the circuit court of Clay county did not know that Long’s term had expired or that Gittings’ term had begun, did not know whether Long was its own officer when he came to acknowledge a deed signed and sealed by Gittings ; in short, did pot know whether Long was Gittings or the latter was Long. If, as the books state, the court knew its own sheriff, knew his signature, is it not a matter of wonder, if plaintiff’s position be correct, that the court did not promptly rebuke Long when he came before the court to acknowledge a deed signed by Gittings, in which Long is referred to as the former and Gittings as the present sheriff? This question answers itself, and shows the supreme necessity of using, in investigations of this character, cot only some knowledge of the law of evidence, but also common sense; and until you can overthrow the legal presumption that the court knew its own sheriff, you are bound to conclude that the insertion of Long’s name in the. certificate instead of that of Gittings was a mere mispi’ision of the clerk; a mere error in the name, and not in the man; and so the misnomer should work no hurt.
The maxim, “praesentia corporis tollit errorem nominis” *634applies here, and was applied in England recently in an important criminal case, where a juror was addressed by, and answered to the wrong name and was afterwards sworn, and upon a case reserved the court said: “ The mistake is not á mistake of the man, but only of his name * * At the bottom the objection is but this, that tne officer of the court, the juryman being present, called and addressed him by a wrong name. Now, it is an old ■ and rational maxim of law, that where the party to a transaction, or the subject of a transaction, are either of them actually and corporeally present, the calling of either by a wrong name is immaterial. Praesentia corporis tollit errorem nominis.” Reg. v. Mellor, 27 L. J., Mag. Cas. 121.
Take another view of the certificate of acknowledgment : The body of the deed may be referred to, to support the certificate. Martindale Conveyances, § 259. In Samuels v. Shelton, 48 Mo. 444, the certificate of the clerk indorsed on the deed was the following: “Andrew Beaty} sheriff of said county, appeared in open court and acknowledged that he executed and delivered a deed to David Mulanix, as his voluntary act and deed, for the uses and purposes therein expressed.” And Wagner, J., after stating that “the deed itself must contain the necessary certificate; and a defective certificate of acknowledgment cannot be sustained or helped by a resort to extraneous testimony,” proceeds to say: “ The only objection that can be plausibly urged against this certificate is that it does not specifically refer to the conveyance, but uses the phrase '•a deed.’ This is without doubt a mere clerical error. The deed sets out the execution, the transcript and sale, and the purchase by Mulanix; and the certificate of acknowledgment is placed on this deed by the clerk. It obviously refers to this deed and no other, and the mere inadvertence or clerical error of the officer making the indorsement ought not to be permitted to’ invalidate it. • *, * The intention is sufficiently clear on the face of the paper.” That case undoubtedly shows two things : 1st, That the deed is *635not regarded in cases of this sort as extrinsic eddence; and 2nd, That it may be legitimately resorted to, to cure and correct any mere clerical error and inadvertence in the certificate, which, but for such resort aud reference, would be left uncertain and ambiguous. That case is approvingly cited in McClure v. McClurg, 53 Mo. 173.
So also in Carpenter v. Dexter, 8 Wall. 515, it was held that in aid of the certificate of acknowledgment, reference may be had to the deed or any part thereof. So also in Chandler v. Spear, 22 Vt. 388, where the grantor's name was Richard G. Bailey, but the certificate of acknowledgment showed an acknowledgment in the name of “ Richard G.,” and it was ruled that as it appeared from an inspection of the whole instrument with reasonable certainty that it was acknowledged by Richard G. Bailey, the grantor, that this was sufficient. Similar rulings were made in Bradford v. Dawson, 2 Ala. 203, and Sharpe v. Orme, 61 Ala. 263. The court there say that “the only general rule with respect to the construction of these certificates, when the object is to support the registration, is that where the statute has been substantially complied with, the rights of the parties shall not depend on strict criticism, but that any portion of the deed may be examined to give effect and meaning to a certificate which is apparently defective.” And the court further says: “ The material fact is, that the grantors acknowledged the execution of the conveyance, and whenever this can he fairly and reasonably spelled out from the certificate, the requisitions of the law are satisfied. . When this certificate is read in connection with the deed, the fact appears with certainty.” To the same effect is Wells v. Atkinson, 24 Minn. 161, where the court say in reference to certificates of acknowledgment: “ It is the policy of the law to uphold them, whenever substance is-found, and not suffer them to be defeated by technical or unsubstantial objections. In construing them resort may be had to the deed or instrument to which they are appended.” Authorities announcing the same rule could be *636greatly multiplied. I hate found none to the contrary. So that it seems, if the authorities are to be followed, it is not such, a very “ startling thing” after all, for a court to read a certificate in connection with, the deed, construe them together, and doing this, reject any repugnant word, which upon inspection of both deed and certificate would obstruct and defeat the obvious intention of the parties.
The Supreme Court of the United States, when speaking of such certificates, say : “ Instruments like this should be- construed, if it can be reasonably done, ut res magis valeat quam pereat. It should be the aim of courts in cases like this to preserte and not to destroy. Sir Matthew Hale said they should be astute to find means to make acts effectual, according to the honest intent of the parties. Roe v. Tranmar, Willes 682.” Kelly v. Calhoun, 95 U. S. 710.
Applying to the case at bar the rule announced in Samuels’ case, supra, and in the other cases cited, I read the certificate of acknowledgment. Apparently it was acknowledged by Erancis B. Long, as sheriff of Clay county, but resorting, as I lawfully may, to the deed upon which that certificate is indorsed I find that Long, having previously levied the execution on the property in controversy, had gone out of office and turned- over the Ji. fa. to Gittings as his successor, that the latter had made the advertisement and the sale and signed and sealed the deed as the sheriff of Clay county. Erom this state of facts patent upon the face of the deed, to what other rational conclusion can I come but that Gittings, and not Long, sheriff of Clay county, was the actual grantor who acknowledged the deed ? Whenever you are permitted to resort to the deed in aid of the certificate, all ambiguity vanishes and repugnancy ceases. This is so and you cannot deny it.
Take another view of the certificate and deed : Both bear the same date, April 26th, 1865; both have the same design ; their mutual dependence and connection appear-on comparing or reading them together, and, therefore, in 'the eye of the law they may be regarded as one instrument, *637although, they do not refer to each other in terms. Whittlesey v. Delaney, 73 N. Y. 571, and cases cited; 2 Smith's Leading Cases, 259, and cases cited; Noell v. Gaines, 68 Mo. 649; Waples v. Jones, 62 Mo. 440; Brownlee v. Arnold, 60 Mo. 79. Following the authorities just cited and treating the deed and certificate as one instrument we may reject from the certificate the name of Long as the acknowledger, as being repugnant to the evident meaning and intent of the instrument; for still, after such rejection, enough will be left to constitute a good and valid sheriff’s deed, properly acknowledged by the sheriff of Clay county — thus applying another maxim : “ Falsa demonstratio non nocet,” (2 Smith Leading Cases, 468, 472, and cases cited;) and this maxim applies as well to persons as to things; the description of the-person who acknowledged the deed, being true in part, to-wit: that he was the sheriff of Clay county, but not true in every particular, to-wit: that his name was Long. 1 Greenleaf Ev., § 301.
The sole ground of objection, as before stated, made by plaintiff to the deed and the certificate of April,-1865, when first offered, was that heretofore mentioned, and no objection was then made that it was a copy. So that the case then stood as if the deed had been the original one. If either of the above positions I have taken be correct, the deed was properly admitted to record, and if so, imparted constructive notice to all subsequent purchasers. Besides, plaintiff admitted both in his answer and on the trial.that the copy offered was a certified copy, and according to the statute, (§ 2302,) was evidence, since the original was proven to have been lost. Why then speak of this copy as an “ assumed copy ? ”
II.
But granting that the deed was improperly admitted to record, and, therefore, imparted no constructive notice, still the only party who could take advantage thereof, would be what the books call an “ innocent purchaser.” *638And if plaintiff did not occupy this position then the re-acknowledgment of the sheriff’s deed by Gittings, in 1878, vested the title in the'bank and Reid by relation.
Much intellectual ammunition has, as I think, been wasted in the majority opinion about the deed being only a copy. The original being lost, a copy thereof containing the proper recitals, was to all intents and purposes a new deed, and the sheriff, by acknowledging the deed, and recognizing as his signature the name signed to the copy made that signature his own. This point certainly will not be disputed.
III.
The next thing for consideration is, whether plaintiff was an innocent purchaser. I will consider this matter from two points of view. 1st, As a question of pleading; 2nd, As a question of evidence.
And first, as to the question of pleading: In Halsa v. Halsa, 8 Mo. 303, Hart, a defendant, had pleaded in his answer that he was an “ innocent purchaser, without notice of any conflicting claims.” Scott, J., in speaking of the insufficiency of this answer, approvingly cites Frost v. Beckham, 1 Johns. Chy. 288, where Chancellor Kent says: “ If a purchaser wishes to rest his claim on the fact of being an innocent bona fide purchaser, he must deny notice though it be not charged; he must deny, fully and in the most precise terms, every circumstance from which notice could be inferred.” And the party who in apt terms pleads that he is such a purchaser must prove it; the onus is on him. Jewett v. Palmer, 7 John. Ch. 65. In Story’s Equity Pleading, section 805, it is stated that a party ■ cannot set up a bona fide purchase for value at the hearing, unless pleaded formally, or set up by way of answer as any other defense, and in denying notice as the foundation of. a superior equity, the plea or'answer must not only negative such notice in general terms, but in specific terms as to all circumstances upon which it is claimed in the bill; and the plea must deny notice of plaintiff* s title and claim *639previous to the execution of the deed and payment of consideration, and must deny notice of plaintiff’s title and not merely the existence of a person who could claim under it. Plaintiff’s reply to Mrs. Thompson’s answer falls far short of the standard. He simply says that “ he never had any notice or information whatever at or before the date of his said purchase of said real estate at sheriff’s sale, in the year 1870, of any claim of title.to the land in dispute by the Farmers’ Bank of Missouri and John ~W. Reid or Emily W. Thompson.” But he does not deny notice of the Clay county judgment, execution thereon, levy, sale, return, sheriff’s deed to the bank and Reid, and the acknowledgment and recording thereof. Knowledge of these he virtually admits, contenting himself with averring their nullity* He does not aver payment of purchase money, nor that his bids were credited on the judgment, nor when he received his deed, nor deny notice at these periods. Even upon the pleadings then, according to the authorities cited, he is not an innocent purchaser, and consequently has no right to prove what he has not pleaded. The question is dehors the case.
2nd. Conceding, however, plaintiff’s reply to be unexceptionable, his evidence, would not support it. The onus being as before stated, he has fallen as far. short in his evidence, in this- regard as he did in his pleading. Granting that plaintiff himself was without notice of Mrs. Thompson’s rights, a debatable question, as will be presently seen, I cannot help regarding Jas. E. Lincoln as the attorney of his brother, when the sale under the foreclosure occurred. The plaintiff does not deny that his brother was his attorney, and on his shoulders rests the burden of proving lack of notice. He did not deny that he knew his brother was prosecuting his claim; and if he did not •disaffirm the acts of his attorney, he ratified them, and that ratification related to the time of the act done. And Jas. E. Lincoln does not .make it appear that he was not his brother’s attorney. He says: “I can’t say I was a *640regular attorney for plaintiff till I brought the ejectment suits in 1871.” Yet he states : “ I looked out for a chance to make my brother’s debt, all I could. He never instructed me to do so, but I supposed as a matter of course he wanted to make his money.” Yet he' admits he brought, a suit in 1867 to revive the judgment lien under which plaintiff bought; that he instituted garnishment proceedings, and had executions issued in behalf of his brother. "Was all this done without authority either express or implied ? There is nothing in this record which induces me to doubt that his brother either directly or else indirectly sanctioned every step taken by his “irregular” attorney. If no such sanctioning occurred, it was a very easy matter for plaintiff to have interposed a denial when on the witness stand, and he was bound to do this if he desired to maintain the position of being an innocent purchaser. I am persuaded, therefore, that Jas. E. Lincoln must be regarded as plaintiff’s attorney, and'if he occupied this relation, then notice to him was notice to plaintiff.
And there is abundant evidence in this record showing notice to Jas. E. Lincoln. He was present at the foreclosure sale; he heard the announcement made by the sheriff, by Gen. Doniphan, and by Judge Norton, of the agreement entered into between the mortgage creditors and Mrs. Thompson for her relinquishment of dower. Whether he knew of “ any written dower agreement, or what that agreement was,” does not signify. He heard the announcement made in the most solemn manner at the sale. He purchased at the sale, took a deed and received in that the relinquishment of Mrs. Thompson’s dower. After all this it is futile for him to say, he was unapprised of Mrs. Thompson’s rights. He either had knowledge or notice of those rights, or else abundant provocation and reason to institute inquiry respecting such rights, and this is sufficient. Surrounded by such circumstances he was grossly negligent if he failed to use the clue thus furnished him; and gross negligence is tantamount to knowledge. Leavitt v. *641LaForce, 71 Mo. 353, and eases cited. The majority opinion takes no note of the fact of James E. Lincoln being plaintiff’s attorney, nor of his testimony in that regard, nor of notice communicated to him in manner as aforesaid.
IY.
The foregoing are only a few of the reasons which might be urged to sustain the action of the court below-A more righteous judgment, one more sound on its basis of facts, and more sound on its basis of law, in my humble opinion, was never rendered’ in any court of justice.
The case of Mrs. Thompson is one of peculiar hardship, and speaks, (or rather should■ speak,) to the ear of a court of equity with a most persuasive tongue. “ In order (as she says in her answer) that she might save a home for herself and children and receive something to support them on,” she is induced to sign the dower agreement, whereby property which would not have brought more than $50,000, at the utmost, yielded $73,000. But for this agreement the foreclosure sale would have swallowed up the whole property, and we should not have heard of plaintiff’s “ most meritorious title.’*
If these facts do not give Mrs. Thompson a superior equity to plaintiff’s, then the sooner we erase that meaningless word of six letters from our vocabularies the better. "What! Shall a court of equity, which favors dower; which clings to substance and discards form; which shelters under its protecting shield its wards, the widow and the orphan; which does battle for the weak .against the mighty — shall such a court, I say, seize with apparent avidity on the “ shadow of a shade ” of an empty technicality, discountenanced and held for naught by all courts of law, and thus deprive a poor widow of her home, and her dower’s worth ¶ I regret to say that in this instance the above interrogatory is answered in the affirmative.
Over in Illinois, however, where, in an equitable proceeding for dower, it appeared that the sheriff’s deed, reg*642ular in other respects, granted to the husband “ all of the right, title and interest which he and the other plaintiffs in the execution had in the lot” sold, the court said : “ This is but a clerical error which will not be regarded by a court of equity or any court while acting upon and adjusting equitable rights. Stow could at any time have had the mistake corrected by procuring a conveyance from the proper officer. This mistake in nowise changes the rights of the parties to this proceeding.” Stow v. Steel, 45 Ill. 328. The “strong meat” of this equitable doctrine, would doubtless be repudiated here.
Moreover, Mrs. Thompson clearly has a dower right in the premises in controversy, if the dower agreement as to those premises is to go for nothing, as this court declares. But this right seems not to have arrested attention in the majority opinion; but an iron-bound decree is to be entered by the circuit court, and no account is to be taken of that dower right, so far as appears in the mandate of this court.
I leave off, by saying, that after a careful consideration of this whole case, I am for affirming the judgment of the circuit court.
Rat, J., concurs with me.