Bayless v. Gibbs

• Decision Date: 28 June 1913
• Citation: Bayless v. Gibbs, 158 S.W. 590, 251 Mo. 492 (Mo. 1913)
• Parties: J. H. BAYLESS et al. v. JUSTUS GIBBS et al., Appellants
• Court: Missouri Supreme Court

158 S.W. 590

251 Mo. 492

J. H. BAYLESS et al. v. JUSTUS GIBBS et al., Appellants

Supreme Court of Missouri, First Division

June 28, 1913

Appeal from Butler Circuit Court.-- Hon. Jesse C. Sheppard, Judge.

Reversed.

N. A Mozley, Leslie C. Green and Ernest A. Green for appellants.

(1)The court erred in finding for the plaintiffs and against defendants.The patent under which plaintiffs claim title is void on its face, in that it shows upon its face that the land was sold for a less consideration than the county was authorized under the Swamp Land acts to sell same.Laws 1854-55, p. 154;Sec. 19, Chap. 48, G.S. 1865, p. 280;Sec 4, Chap. 109, G.S. 1865, p. 444;Laws 1854-55, p. 160;Laws 1857, Adj. ses., p. 32;Laws 1868, p. 168;Simpson v Stoddard County,173 Mo. 421;State ex rel. v. Crumb,157 Mo. 545;Railroad v. Hatton,102 Mo. 55;Sturgeon v. Hampton,88 Mo. 203;Butler v. Sullivan County,108 Mo. 630;Railroad v. Wayne County,125 Mo. 351;Moss v. Kauffman,131 Mo. 424;Hooke v. Chitwood,127 Mo. 372;Tydings v. Pitcher,82 Mo. 379;State ex rel. v. Co. Ct. New Madrid Co.,51 Mo. 85;State ex rel. v. Wayne Co.Ct.,98 Mo. 366;Wheeler v. Land Co.,193 Mo. 279.(2)The court erred in admitting in evidence the patent under which plaintiffs claim title, for two additional reasons, viz.: (a) There was no showing of any authority vested in the commissioner named to make the patent; and, (b) at the time of making same, Butler county had no title to the land in controversy.Sec. 4, chap. 109, G.S. 1865, p. 444;Funkhouser v. Mallen,62 Mo. 555;Prior v. Scott,87 Mo. 303;Cases under point 1.

Henry N. Phillips and Abington & Phillips for respondents.

(1) The lands involved in this litigation are a part of what is known or commonly called "the swamp or overflowed lands of Butler county, Missouri."These lands with others were granted to Missouri by the United States by an act of Congress approved September 28, 1850, and were patented to the State by the United States prior to November 4, 1857.By an act of the Legislature, approved March 3, 1851, these lands were donated to the counties in which they were situated, excepting certain counties in Southeast Missouri, of which Butler was one.Laws 1851, p. 238.But in 1853the Legislature passed another act donating to the excepted counties, among which Butler was one, the swamp lands which were situated within their limits, respectively.Laws 1853, p. 108.The excepted counteis above referred to, among which was Butler, were not under or included within the operations or requirements of the general swamp land law of the State until 1868. R.S. 1855, p. 1055, sec. 20;G.S. 1865, chap. 48, sec. 19.(2) It is difficult to discern the reason why appellant under point one in his brief cited Sec. 19, chap. 48, G.S. 1865, p. 280, or sec. 4, chap. 109, G.S. 1865, p. 444, as the first of these citations shows absolutely that the swamp land of Butler county was not governed by that law, as section 19 is as follows: "The provisions of this chapter shall not extend to or be in force in the counties of Wayne, Butler, Stoddard" etc., and the second citation, section 4, provides for the appointment of a commissioner to dispose or sell any real estate belonging to the county, but that did not apply to swamp lands as has been decided time and again by this court, to the effect that the swamp lands were not the general property of the county.State ex rel. Robbins v. New Madrid County,51 Mo. 83;Sturgeon v. Hampton,88 Mo. 203.(3) The control of the swamp land in the excepted counties, of which Butler was one, was placed in the county courts and the office of register and receiver was provided for, and the lands could be sold at the discretion of the county courts, and in Bollinger, Butler, Dunklin, Stoddard and one or two others land could be sold as low as fifty cents per acre, or, as for that matter, at any price which the county court saw proper to make.Linville v. Bohannon,60 Mo. 558;Pool v. Brown,98 Mo. 684;Gregg v. Hall,138 Mo. 290;Simpson v. Stoddard County,173 Mo. 444.(4) On March 1, 1855, the Legislature enacted a law in relation to swamp lands concerning the counties of New Madrid, Pemiscot, Mississippi, Scott, Cape Girardeau, Stoddard, Wayne, Ripley, Butler and Dunklin, in the management of their swamp lands, which was the law concerning the control of these lands in said counties, with certain modifications thereto made in 1857 and 1859 on until the general law of 1868 was passed and was in force at the time the commissioner's deed in this case was made and recorded.Laws 1855, p. 154-159.(5)The Legislature of the State passed another law, February 28, 1855, as follows: "Sec. 1.That the several county courts of the State are hereby authorized to sell and dispose of the swamp or overflowed lands within and for the respective counties, either with or without draining and reclaiming the same, as in their discretion they may think most conducive to the interests of said counties," thereby giving the county courts a free rein and the absolute control of these lands both as to the price and method of sale, and this act was never repealed or even modified until the general law of 1868 was enacted, and therefore the Act of February 28, 1855, was in full force and effect when the commissioner's deed to Bayless was made and recorded in November, 1867.(6)Appellant's second contention is that at the time Addy made the commissioner's deed to Bayless, Butler county had no title to its swamp lands.In regard to that contention we say: The swamp lands were granted or donated by the State to the county of Butler in 1853 as shown above, and again by an Act of 1855 and again by an Act approved November 4, 1857, and the county court could dispose of them as they saw fit.Act of December 13, 1855;Act ofNovember 4, 1857, p. 32;Act of February 28, 1855;Laws 1856-7, pp. 349, 350, 351, 360;Laws 1855, p. 160;Barton County v. Walser,47 Mo. 197;Sturgeon v. Hampton,88 Mo. 203;Linville v. Bohannon,60 Mo. 558;Pool v. Brown.98 Mo. 684;Simpson v. Stoddard County,173 Mo. 443;State ex rel. v. Wayne Co. Court, 98 Mo. 306.

WOODSON, P. J. Lamm, J., concurs, except as to what is said regarding the Simpson case; Bond, J., concurs; Graves, J., concurs in result.

OPINION

WOODSON, P. J.

This was a suit instituted in the circuit court of Butler county by the plaintiffs against the defendants, under section 650,Revised Statutes 1899, to quiet title to a certain quarter section of land situate in said county, and particularly described in the petition.The petition also contained a second count in ejectment for the possession of the land.

A trial was had which resulted in a judgment for the plaintiffs on both counts of the petition; and after moving unsuccessfully for a new trial, the defendants appealed the cause to this court.

Counsel for appellants have made a clear and terse statement of the case, which counsel for respondents say is correct, and for that reason we will adopt that statement as our statement of the case, which is as follows:

"This is an action instituted in the circuit court of Butler county, Missouri, to quiet title and in ejectment.The petition is in two counts, the first count being an ordinary action to try title under section 650,Revised Statutes 1899 and the second an action in ejectment.The land involved lies in Butler county, Missouri, and is described as follows:

"The northeast quarter of the southwest quarter of section twenty-eight, township twenty-five, range seven east.

"The answers of the respective defendants denied that plaintiffs had any title, estate or interest in the land involved, and averred that the defendantJustus Gibbs was the sole and absolute owner in fee simple of the premises described, subject only to a deed of trust given by defendantJames V. Webb to his co-defendant, Ernest Bacon, to secure the payment of a promissory note for $ 300.The defendant, Justus Gibbs, admitted that he was in possession of the real estate described in the petition, but both defendants Webb and Bacon specifically denied that they were in the possession thereof.

"The cause was tried at the October term, 1909, of the Butler Circuit Court, and on the 3d day of December, 1909, and during the same term, the court rendered judgment in favor of the plaintiffs on both counts of their petition.The judgment found plaintiffs to be the owners of the premises described in their petition, and also found defendants guilty of trespass and ejectment, assessed plaintiffs' damages at the sum of one dollar and monthly rents and profits at five dollars per month until plaintiffs be restored to possession.

"On the trial, the testimony showed Butler county to be the alleged common source of title.Plaintiffs thereupon offered in evidence a commissioner's deed from Chas. W. Addy commissioner, to John Bayless, dated November 15, 1867, and recorded November 27, 1867, in the deed records of Butler county, Missouri.This deed recited a conveyance of one hundred and sixty acres of land, at fifty cents per acre, consideration eighty dollars.This deed was objected to by defendants for three reasons, viz.: (1) There was no showing of any authority vested in the commissioner named to make the conveyance for the county; (2) that at the time of the conveyance, Butler county had no title; (3) that the deed on its face was void, in that the land was sold for a less consideration than counties were authorized under the Swamp Land acts to sell for at that time.The court sustained the objection on the sole ground that no authority for the commissioner to make the deed was shown.Thereupon plaintiffs offered a record of the county court of Butler county, of date January 18,...