Bell v. Ham

• Decision Date: 30 January 1915
• Docket Number: No. 1340.,1340.
• Citation: 173 S.W. 744
• Parties: BELL et al. v. HAM et al.
• Court: Missouri Court of Appeals

173 S.W. 744

BELL et al. v. HAM et al.

No. 1340.

Springfield Court of Appeals. Missouri.

January 30, 1915.

Rehearing Denied February 16, 1915.

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

Action by Erma D. Bell and others against Ed. Ham and another. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

J. W. Chilton, of Winona, and Sheppard & Green, of Poplar Bluff, for appellants. Lew R. Thomason, of Poplar Bluff, for respondents.

STURGIS, J.

This is an action to recover damages for an alleged trespass upon about 400 acres of land in Butler county, Mo., 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 Capt. 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 80 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 William 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, Mo., 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, 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 timber land 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, R. S. 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, R. S. 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 (Sup.) 169 S. W. 55, 59, not yet officially reported. This rule obviously does not apply to one whose title is not evidenced by any written instrument, as in case of title by descent, and so it is held that a suit against the deceased ancestor does not affect the title of the heirs, though such ancestor was the last record owner. Perkinson v. Meredith, 158 Mo. 457, 462, 59 S. W. 1099; Adams v. Gossom, 228 Mo. 566, 580, 129 S. W. 16; Gage v. Cantwell, 191 Mo. 698, 91 S. W. 119. Logically this would apply to one whose title is based on adverse possession under the statute of limitations, and such title would not be divested by a tax proceeding against the last record owner. See, on this point, Adams v. Gossom, 228 Mo. 566, 581, 129 S. W. 16. So too it must apply to one whose title is based on an instrument not necessary to be recorded in the local land records.

It follows from this that unless the plaintiffs or their ancestor, Dorn, were derelict in their duty in failing to file for record in Butler county, Mo., where this land is situate, the muniments of their title, to wit, the United States patents to this land, then the exception to the rule that tax suits must be against the owner of the land based on the last record owner doctrine has no application here.

The patents in question, based on an assignment of the certificate of location from the entryman to the patentee as recited in the patent, made the patentee, Dorn, the first owner of the fee-simple title, and deprived the entryman, Rudolph, of any equitable title he had in the land. Had this patent been recorded in Butler county, Mo., then unquestionably the tax suits, to have had any effect on Dorn's title, must have been against him both as the true and last record owner unless the same were brought against these plaintiffs, his heirs, after his death. This would have been true even under the decisions invoked by defendants, to the effect that, in ascertaining the last record owner for the purpose of bringing suit for delinquent taxes, the tax collector may look to the duly certified plat book, obtained by the county court from the United States land office as provided by section 11363, R. S. 1909, and a suit resulting in a sale of the land to an innocent purchaser is good when brought against the entryman shown by such plat book to be the last record owner as against one claiming under an unrecorded deed from such entryman. Payne v. Lott, 90 Mo. 676, 681, 3 S. W. 402. Nolan v. Taylor, 131 Mo. 224, 228, 32 S. W. 1144, was decided on the authority of Payne v. Lott, supra, though the unrecorded instrument in that case was a patent, and that case might be binding here if it was the last decision of the Supreme Court on this point.

We find, however, that, under the...