Bell v. Ham

• Decision Date: 30 January 1915
• Parties: ERMA D. BELL et al., Appellants, v. ED. HAM and ED GEORGE, Respondents
• Court: Missouri Court of Appeals

173 S.W. 744

188 Mo.App. 71

ERMA D. BELL et al., Appellants, v. ED. HAM and ED GEORGE, Respondents

Court of Appeals of Missouri, Springfield

January 30, 1915

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

REVERSED AND REMANDED.

Case reversed and remanded.

J. W Chilton and Sheppard & Green for appellants.

(1) The will of William B. Dorn having vested a life estate in Mattie G. Dorn, his widow (now Mattie G. Felton by marriage), and the appellants being remaindermen, were under no obligation to pay taxes on the lands in controversy, until the determination of the said life estate, and had no right of possession of said lands in the meantime. Dyer et al. v Wittler, 89 Mo. 81; Hall v. French, 165 Mo 440-448; Tiedeman on Real Property (3 Ed.), sec. 53, p. 62. (2) U. S. Land Office records are public records which give notice to the world of their contents; and patents of lands from the United States do not come within the purview of the recording laws of the States, and are not required to be recorded unless there is a specific statute requiring their recordation. The chapter on "Conveyances of Real Estate" (Chapt. 30, Vol. 1, page 994, R. S. Mo. 1909) does not require the recording of patents; the chapter on "Recorders of Deeds" (Vol. 3, R. S. Mo. 1909), merely permits the recordation of patents. Secs. 2787-2809, R. S. 1909, vol. 1; Secs. 10390-10391, R. S. 1909. Webb on Record of Titles, sec. 25, page 59; A. & E. Ency. of Law (2 Ed.), vol. 24, page 86 (par. "g"); Mosher v. Bacon, 229 Mo. 338; Sec. 459, R. S. United States. (3) It is not necessary to the validity of a will that it be recorded upon the deed records in this State, if properly probated in another State. Lewis v. St. Louis, 69 Mo. 595; Bradstreet v. Kinsella, 76 Mo. 63. (4) Tax suits are required by law to be brought against the owners of the land against which taxes are assesed, and are void, and pass no title if not thus prosecuted. This is especially true if the deed records of the county in which the land lies, do not disclose the name of an apparent owner. R. S. 1909, sec. 11498; Williams v. Hudson, 93 Mo. 524; Evarts v. Mining Co., 193 Mo. 433; Zweigart v. Reed, 221 Mo. 33; Adams v. Gossom, 228 Mo. 566; Chamberlain v. Blodgett, 96 Mo. 482. (5) A so-called plat book of entries of lands, not certified by the register of the land office, is wholly inadmissible in evidence to establish the name of an apparent record owner of land. Stewart v. Lead Belt Co., 200 Mo. 281; Wilhite v. Barr, 67 Mo. 284; Payne v. Lott, 90 Mo. 676; Nolan v. Taylor, 131 Mo. 224.

Lew R. Thomason for respondents.

(1) The demurrer of the defendants being for a misjoinder of two separate independent causes of action improperly joined, the demurrer was directed against plaintiffs' petition in its entirety and not against any one count thereof; the demurrer being sustained, destroyed the entire pleading, and plaintiffs having failed to file any amended pleading, the defendants were entitled to judgment upon their motion. Munford v. Keet, 154 Mo. 36; Ritchey v. Ins. Co., 98 Mo.App. 115. (2) Where the statute requires suit for delinquent taxes to be brought against the owner charged, in the absence of other knowledge, the collector has a right to assume that the person in whom the records of the county showed the title to be vested was the true owner and the right person to be sued. Vance v. Corrigan, 78 Mo. 94; Payne v. Lott, 99 Mo. 676; State ex rel. Hunt v. Sack, 79 Mo. 661; Allen v. Ray, 96 Mo. 542; Sinonson v. Dolan, 114 Mo. 176; Nolen v. Taylor, 131 Mo. 224; Hilton v. Smith, 134 Mo. 500; Land & Lumber Co. v. Bippus, 200 Mo. 697. (3) Even though it be conceded that an uncertified plat book is not competent evidence to establish a fee-simple title it does not follow that it is not competent for another purpose, that of tending to impart knowledge of ownership to the collector of revenue. But the title of the defendant George does not rest upon the uncertified plat book. The certificates offered in evidence by defendants, duly certified by the receiver of the United States Land Office, establishes absolutely that the suit for delinquent taxes under which the defendant George claims title was brought against the proper parties, was regular in every particular and passed the title against William B. Dorn and those claiming under him, either in the character of devisees or heirs. Noland v. Taylor, 131 Mo. 224.

STURGIS, J. Robertson, P. J., and Farrington, J., concur.

OPINION

STURGIS, J.

--This is an action to recover damages for an alleged trespass upon about 400 acres of land in Butler county, Missouri, and cutting and carrying away the timber thereon. The trial in the circuit court concerned the title to this land. The trial court found that the plaintiffs had no title and so instructing the jury the trial resulted in a judgment for defendants and plaintiffs have appealed. The plaintiffs claimed title as the heirs of William B. Dorn. The land is what is known as military bounty land. By reason of the fact that one Philip Cook was a valiant soldier in Captain Black's company, Georgia Militia, in the Florida War, he received under the act of Congress of March 3, 1855, in relation to granting bounty land to certain officers and soldiers engaged in the military service of the United States, a land warrant for eighty acres of public land. This land warrant was assigned to Amzi Rudolph and was by him located on a part of the land in question. Thereafter, and before his patent was issued, this certificate of location was assigned by Rudolph to Wiliam B. Dorn, who presented the certificate of location and assignment to the general land office and a patent was issued to him for this land under date of November 1, 1859. This patent was not recorded in Butler county, Missouri, until November 20, 1912. Like patents for the other lands were issued to said Dorn on assignments to him by Rudolph of other land warrants located on the other lands now in controversy. These patents were all dated in 1859 and none of them recorded in the local land records until in 1912. The plaintiffs are, as stated, the heirs of William B. Dorn and claim title under him by virtue of these patents. The defendants' title is based on certain sheriff's deeds, dated and recorded about the year 1889, under executions issued on judgments for taxes in certain suits brought against Amzi Rudolph, the entryman of such lands. These tax suits were brought long before the patents to Dorn were recorded in the local land records. The tax deeds in defendants' chain of title purport to convey the title of Amzi Rudolph. The material question for us to decide is as to the validity of defendants' title derived under these tax suits. It is conceded by both sides that at the times the taxes were levied, the suits thereon brought and the sales had that there was an uncertified plat book of entries in the office of the recorder of deeds of said county showing that Rudolph was the entryman of this land.

I. It must be held that plaintiffs have the legal title to this land unless the same has been lost to them by reason of these tax suits, judgments and deeds, above mentioned. The land is timberland and has been unoccupied during all these years. No question of any Statute of Limitation or title by adverse possession is raised. It is shown that William B. Dorn, patentee of all these lands, died a resident of South Carolina in 1876, leaving a last will which was admitted to probate in that State in 1877. He devised his real estate, including this land, to his wife for life with remainder to his children, these plaintiffs. Some objection is made to the regularity of the probate of this will and the proof of same, but that is immaterial here. If the will is invalid for any reason or not properly probated, these plaintiffs acquired the land by descent. [Graves v. Ewart, 99 Mo. 13, 17, 11 S.W. 971.] The only difference the will makes is that if valid it gave the mother of these plaintiffs a life estate in these lands and cast on her the duty, as life tenant, to pay the taxes and her failure to do so cannot be charged against these plaintiffs, the remaindermen, as laches.

As just stated, the tax suits resulting in the tax deeds under which defendants claim title are against Amzi Rudolph and only his interest in the land was sold. There has never been any tax suit against William B. Dorn or these plaintiffs, his heirs. Their interest in this land has never been sold. They have never had their day in court. How then have they lost and defendants acquired their legal title? The statute in force at the time the tax suits were brought, section 9303, Revised Statutes 1899, provides that such suits should be brought in the name of the State, at the relation of the collector "and against the owner of the property." This statute has been amended and is now section 11498, Revised Statutes 1909. The amendment relates to bringing suits against the last record owner and whether it accomplishes more than was already accomplished by the courts in construing the section before the amendment we need not now inquire. It had already been held by a line of decisions, beginning with Vance v. Corrigan, 78 Mo. 94, that in a suit for taxes brought against the last record owner resulting in a sale to an innocent purchaser without notice, actual or constructive, of another's claim of title, the tax sale would be valid and convey a good title although the party sued in the tax proceeding had parted with his title by an unrecorded deed. These decisions are based on the rule that the real owner having a title deed must put it of record in order to make the same valid as against subsequent purchasers in good faith. [Wilcox v. Phillips, 260 Mo. 664, 169...