Bell v. George

• Decision Date: 04 June 1918
• Citation: 204 S.W. 516,275 Mo. 17
• Parties: EMMA D. BELL et al. v. ED. GEORGE, Appellant
• Court: Missouri Supreme Court

204 S.W. 516

275 Mo. 17

EMMA D. BELL et al. v. ED. GEORGE, Appellant

Supreme Court of Missouri, First Division

June 4, 1918

Appeal from Butler Circuit Court -- Hon. J. P. Foard, Judge.

Affirmed.

Lew R Thomason for appellant.

(1) The trial court erred in refusing to permit the defendant to show that J. William Chilton was the real party in interest and owner of the lands by an unrecorded deed or contract with the nominal plaintiffs. Every cause shall be prosecuted in the name of the real party. Sec. 1728, R. S. 1909. If J. W Chilton had succeeded to the claims of the plaintiffs, either by deed or by valid contract, he was the proper party to sue as plaintiff, and it can make no difference whether it would change, strengthen or weaken the defense in this action. Sec 1729, R. S. 1909; Citizen's Bank v. Burroughs, 178 Mo. 731. Where the answer of the defendant denies that plaintiffs are the real parties in interest such averments are issuable allegations and it is error for the trial court to exclude evidence offered in support of such allegations. Nansen v. Jacobs, 93 Mo. 346. (2) One of the issues tendered by the defendant in his answer was that whatever claim, if any, the plaintiffs had to the lands in controversy, had long since been abandoned, and that plaintiffs had been guilty of the grossest laches. By the uncontroverted evidence it is shown that the plaintiffs' ancestor obtained title to the lands in question on the first day of November, 1859, and that neither of the plaintiffs, the youngest of whom at the time of the trial was shown to be more than thirty-nine years of age, or their ancestor, had ever been in possession of the lands, or any part thereof, or had ever asserted any claim of, interest in and to said lands or any part thereof, until the institution of this suit, and for more than fifty-six years after obtaining their claim of title. "Laches" is defined to be an unreasonable delay; neglect to do a thing or seek to enforce the right at a proper time. Bouvier's Law Dictionary (3 Ed.), p. 1820; Anderson v. Northrup, 30 Fla. 612. The doctrine of laches is based upon ground of public policy which requires there be peace of society and the discouragement of all stale claims. Mackall v. Casilear, 137 U.S. 556. Naddo v. Bardon, 51 F. 498; Shelton v. Horrell, 232 Mo. 376. Turner v. Burk, 81 Ark. 352. The doctrine of laches will prevent the enforcement of a stale claim no matter whether predicated upon a legal or equitable right. State ex rel. v. Reynolds, 243 Mo. 720; Heating Company v. Consolidated Car Heating Co., 174 F. 658. Laches though an equitable defense may be joined in the same answer as a general denial. Ledbetter v. Ledbetter, 88 Mo. 60; Munford v. Keet, 154 Mo. 48; Fisher v. Stevens, 143 Mo. 181. (3) The statute to enforce the lien for delinquent taxes upon the lands, provided that: "all actions shall be prosecuted against the owner of the property, if known, and if not known, against the last owner as shown by the records of the county or city at the time the suit was brought." The tax suit under which the defendant claims title was in strict harmony with the provisions of the above statute. It was brought against Amzi Rudolph, the last record owner as shown by the land records of Butler County. In ascertaining the record owner for the purpose of bringing a suit for delinquent taxes, the collector is not confined to the records of deeds as recorded but may look to the plat book. Payne v. Lot, 90 Mo. 676; Noland v. Taylor, 131 Mo. 224; Allen v. Ray, 96 Mo. 542. There is nothing in the statute requiring said plat book to be certified in any manner or form; the statute only requires that it be obtained from the land offices of the respective district of the county. Sec. 11363, R. S. 1909. An ancient instrument is presumed to be genuine and is admissible in evidence without further proof. Where an instrument is more than thirty years old and is unblemished by alterations the bare production thereof is sufficient to entitle it to admission in evidence. Wynn v. Patterson, 9th Peters (U.S.) 674; Bank of U. S. v. Dandridge, 12 Wheat (U.S.) 70; First Greenleaf on Evidence, sec. 141; Jackson v. Blanshan, 3 Am. Dec. 485; Crane v. Marshall, 33 Am. Dec. 631; Dodge v. Briggs, 27 F. 170; Hodge v. Hub, 94 Mo. 489; Wilson v. Snow, 228 U.S. 217. The date of the instrument at the date of the trial determines its admissibility. Gordon v. Graniss, 56 Ga. 539. The plat book offered by the defendant, though uncertified, was the proper record for the Collector of Revenue to consult for the purpose of ascertaining the last record owner of the lands in controversy, for the purpose of recovering the delinquent taxes thereon, and was admissible in evidence. Payne v. Lot, 90 Mo. 676; Noland v. Taylor, 131 Mo. 224; Lond v. Doud, 87 Mo. 197; Kansas City v. Scarritt, 169 Mo. 471. The tax suit against Amzi Rudolph, being in full compliance with the law, the sale of the lands as a result thereof passed the title.

J. W. Chilton for respondents.

(1) Respondent's title being a legal title, laches could not be pleaded or urged as a defense thereto. Workman v. Moon, 177 S.W. 862; Chilton v. Nickey, 261 Mo. 232; Hays v. Schall, 229 Mo. 124; Wilcox v. Moore, 196 S.W. 15; Wilcox v. Moore, 199 S.W. 135; Wengler v. McComb, 188 S.W. 76; Meyers v. DeLisle, 259 Mo. 506; Russ v. Hope, 265 Mo. 637. (2) The non-payment of taxes by the owner of land for any length of time whatever, will not of itself bar the owner's title. Actual possession by an adverse claimant is an indispensable pre-requisite to the starting of any Statute of Limitations, or to a plea of equitable estoppel or laches. Burkham v. Mannewall, 195 Mo. 506; Haarstick v. Gabriel, 200 Mo. 237; Hays v. Pumphrey, 226 Mo. 119. (3) Payment of taxes, surveying land, cutting timber therefrom and keeping other trespassers off by one who holds mere color of title to land are not such acts as constitute actual possession of the land, and not such acts as will set in motion any Statute of Limitations or sustain a plea of equitable estoppel as against the true owner. Chilton v. Nickey, 261 Mo. 232; Himmelberger Harrison Lbr. Co. v. McCabe, 220 Mo. 154; Stone v. Perkins, 217 Mo. 602; Chilton v. Comanianni, 221 Mo. 685; Pharis v. Jones, 122 Mo. 125; Nye v. McAlfter, 127 Mo. 529. (4) Section 9303, R. S. 1899, required suits for back taxes to be brought against the owner of the land. In construing said statute this court has held that it is sufficient ordinarily to sue one whom the public records disclose to be the owner. But there is nowhere in the law any authority justifying a Collector to resort to an uncertified plat book for the names of owners. Unless a plat book is certified it is not a public record; it is nothing. And it is not almissible in evidence for any purpose. Bell v. Ham, 188 Mo.App. 71; Stewart v. Lead Belt Co., 200 Mo. 281. (5) The purported plat book was not an ancient document within the meaning of the law; the ancient document rule does not apply to mere copies of records. Byrd v. Phillips, 111 S.W. 1109, McClerry v. Lewis, 70 A. 540. (6) Land patents issued by the United States are not required to be recorded upon the deed records of the county in which the land lies. Chap. 30, R. S. 1909, applies only to instruments "which have been acknowledged or proved according to law." The Chapter on Recorders of Deeds (Sections 10390-10391) simply permits the record of patents by making it the duty of the recorder to record such patents as may be offered to him for that purpose. Secs. 2787-2809, Chap. 30, R. S. 1909; Webb on Record of Title, sec. 25, page 59; Wilcox v. Phillips, 260 Mo. 664; Mosher v. Bacon, 229 Mo. 338; Bell v. Ham, 188 Mo.App. 71; Nichols v. Hobbs, 197 S.W. 258; United States v. Schurz, 102 U.S. 378; 2 Jones on Real Property, secs. 1377-1728; Wolf v. Brown, 142 Mo. 617. (7) The rule of equitable estoppel cannot be invoked in this action because appellant was never in the actual possession of the land, never improved it or expended any money on it, and his position has suffered no change for the worse by reason of respondents' failure to quiet their title at an earlier date. Robbing the land of its timber certainly did not improve it. Workman v. Moon, 177 S.W. 862; Meyers v. DeLisle, 259 Mo. 512; Marshall v. Hill, 246 Mo. 1; Collier v. Gault, 234 Mo. 465; Williams v. Sands, 251 Mo. 147. (8) The plea of an outstanding title in a third party cannot be invoked as a defense to plaintiff's action to quiet title where plaintiff and defendant claim under a common source, if it be not shown that defendant has acquired the title of such third person. Skillman v. Clardy, 256 Mo. 322; Dixon v. Hunter, 204 Mo. 390. (9) And where a defendant shows no title in himself, he is not concerned with an adjudication of the rights or titles as between the plaintiff and any third party. Authorities above.

RAILEY, C. Brown, C., concurs. Bond, P. J., concurs in the result.

OPINION

RAILEY, C.

This action was commenced in the circuit court of Butler County, Missouri, on February 20, 1915, to quiet title to the southeast quarter and lot 1 of the southwest quarter of section 19, and the northeast quarter of section 30, all in township 26, range 7 east, situate in said county.

It is averred in the petition that plaintiffs own and claim to have title in fee simple to the real estate aforesaid; that defendant makes some claim of title, estate or interest in said land, which is adverse and prejudicial to the estate and title of plaintiffs therein. A decree was then asked quieting title in them, etc. The petition also alleges that if the court should find "that defendant, since the year 1903, purchased said lands, or any part thereof, at a void tax sale, and thereafter in good faith paid taxes...