Bonsor v. Madison County

• Decision Date: 14 May 1907
• Citation: 102 S.W. 494,204 Mo. 84
• Parties: BONSOR et al. v. MADISON COUNTY et al.
• Court: Missouri Supreme Court

102 S.W. 494

204 Mo. 84

BONSOR et al. v. MADISON COUNTY et al.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. QUIETING TITLE—PROCEEDINGS—PETITION —SUFFICIENCY.

In an equitable action against a county and the sheriff, county court, and judges of the county court of that county to enjoin them from selling certain land as school land and to establish title of plaintiffs thereto, a petition which alleges that plaintiffs and their grantees have been in actual, open, notorious, continuous, and hostile possession of the land for over 50 years, and that the original occupant purchased it from the state, but had received no patent therefor, and that the sheriff of the county was about to sell it under order of the county court as school land, sufficiently states a cause of action, since under Rev. St. 1899, c. 122, art. 2 [Ann. St. 1906, pp. 3867-3874], county courts are made trustees to sell school lands, and Rev. St. 1899, § 9829 [Ann. St. 1906, p. 4507], gives the county court the care and management of the funds, though the title remains in the state.

2. PARTIES—MISJOINDER—WAIVER OF OBJECTIONS.

Under Rev. St. 1899, § 602 [Ann. St. 1906, p. 628], where defendants made no objection by demurrer or answer to the fact that they were improperly made parties to an action, the objection was waived.

3. QUIETING TITLE — STATUTORY REMEDIES — SCOPE.

Rev. St. 1899, § 650 [Ann. St. 1906, p. 667], providing for actions to determine conflicting interests in real estate, furnishes no authority for an action to enjoin a sale of land which would cast a cloud on plaintiff's title.

4. SAME—PREVENTING CLOUD ON TITLE—INJUNCTION.

Where plaintiffs were the owners in fee of certain land which was a portion of a school section of which the county was trustee while the state had title thereto, and the sheriff of the county was about to sell it as school land under order of the county court, a court of equity has jurisdiction to enjoin the sale so as to prevent clouding plaintiff's title.

Appeal from Circuit Court, Madison County; Samuel Davis, Special Judge.

Action by Charles E. Bonsor and others against the county of Madison and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

E. D. Anthony and John C. Brown, for appellants. Robert A. Anthony, B. B. Cahoon, Sr., Moses Whybark, M. R. Smith, David M. Tesreau, and Thomas T. Fauntleroy, for respondents.

BURGESS, J.

The purposes of this suit seem to have been decreed and declared the legal and equitable title to a 41-acre tract of land, described in the petition, to be vested in plaintiffs, and divested out of said county and county court, and to have the sheriff perpetually enjoined from proceeding with the sale of said land, under the order of said county court, and for general relief.

The petition upon which the case was tried, leaving off the formal parts, is as follows:

"Plaintiffs state that the said Katie Anderson Barclay and Shepard Barclay are husband and wife; that said Jennie Mallinckrodt and Edward Mallinckrodt are husband and wife; that said Georgiana Campbell Smith and John Campbell Smith are husband and wife; that said William O'Bannon is the duly elected, qualified, and acting sheriff of the county of Madison in the state of Missouri; and that the said McFarland, Huffman, and Hill are the judges of said county court of Madison county, Mo. Plaintiffs further state that said O'Bannon, as said sheriff of said county, acting and claiming to act under an alleged order of the county court of said county, made at its adjourned term of the regular November term, 1902, advertised in the Democrat News, a weekly newspaper published in said county, that he would on Monday, the 23d day of March, 1903, sell at public auction as school land the S. E. ¼ of the S. E. ¼ of section 16, in township 33 N, of range 7 E., containing 40 acres, situated in Madison county, Mo.; that said O'Bannon threatens at and before the filing of the petition herein that he would at said time proceed to sell said land as school land, and the said county court and said defendants named as its judges will upon said sale by said sheriff proceed to cause a patent to issue or a pretended conveyance to be made to the purchaser at said sale of said land, unless restrained from so doing by order of the circuit court of said county; that any such sale or the making of any such patent or conveyance or the issue of any such patent to the purchaser at said sale will cloud and impair the title of plaintiffs to said real estate; that said land is of much value, and is reputed and supposed by its owners to contain lead and other valuable minerals, and speculative or other purchasers may, in spite of the facts hereinafter alleged, bid and pay in excess of $1.25 per acre for the claim they would acquire to said land in order to secure some supposed right, title, or interest therein to be conferred by such proposed sale; that such proposed sale or the making of a certificate of sale to the purchaser or the issuing a patent pursuant thereto will cloud, and cast a cloud upon, the title of these plaintiffs to said real estate, and will cause a multiplicity of suits thereafter to protect the rights of plaintiffs, and will do unto these plaintiffs great and irreparable injury, and put them to great expense.

"Plaintiffs further allege that said land was once school land and as such once belonged to said section 16, township 33, range 7 E., in said county for school purposes, but that they, through said county and through one James C. Berryman, now deceased, and the heirs, devisees, and grantees of the said James C. Berryman, are now the sole and exclusive owners of all said real estate, and that said Berryman, his said heirs, devisees, and grantees and these plaintiffs who claim title to said real estate from under, through, and by the said county of Madison and the state of Missouri, and through, under, and by conveyances from the said Berryman, his heirs, devisees, and legal representatives, have been for more than 30 years since, to wit, the year 1860, and they now are (under color and claim of title thereto), in the adverse, continuous, open, visible, notorious, exclusive, hostile possession of all said real estate, claiming to own the same, and for 30 years the plaintiffs and those under whom they claim from said Berryman have separately and exclusively claimed and possessed the rights to the minerals and mines upon said property, and plaintiffs and their predecessors in title to said property have continuously claimed perfect title and have possessed said lands for more than 30 years last past adversely, continuously, peaceably, and exclusively against all the world, and especially have plaintiffs so claimed against said county and state of Missouri, and against all who might assert any claim to said real estate or to any part thereof under said county; that plaintiffs (and those under whom they claim) have been under said color and claim of title thereto in the open, exclusive, continuous, hostile, and adverse possession of all said real estate, and have paid all state, county, and other taxes yearly assessed thereon by said county and by its officers since, to wit, the year 1860, and that the premises and their said adverse possession of said real estate confers and has long since conferred upon them full and complete title to said real estate, and that, although plaintiffs cannot produce the formal deed or patent for said real estate issued or made to said James C. Berryman by said county or state, yet the legal as well as the equitable title to said real estate is by reason of the premises in these plaintiffs, and in no other party; that said Berryman, more than 30 years ago, bought said land from said county and paid the lawful price therefor; that the said county and the said county court of said county have neglected and refused, and now neglect and refuse, though often requested so to do by said Berryman and plaintiffs, to cause a deed or a patent to be issued to said James C. Berryman, his heirs, devisees, legal representatives, or assigns for said real estate or for any part thereof, but said county claims and asserts title thereto for alleged school purposes adverse to plaintiffs, and in furtherance of such claim it is proceeding to have, and it proposes and intends to have, said land sold for school purposes as though said land belonged to said county in trust for the public school or for the benefit of the school funds or some of them of said county, when, in fact, said land is the exclusive property of the plaintiffs.

"Plaintiffs further allege that the said judges of the county court as members of said court are invested by law with a trust to dispose of school lands in the said township where said land is situate; and said court is the trustee of an express trust of the legal title to lands which, in fact, belong to the schools; but plaintiffs aver that the equitable title to the 40-acre tract above designated is in them because said James C. Berryman more than 20 years ago bought the same and paid to said county court as trustee, as aforesaid, the full purchase price thereof, and said court in equity and good conscience ought to issue to plaintiffs as the legal representatives of said Berryman a patent for or certificate of purchase of said land, according to law, but not only does the said county court refuse so to do, but it threatens to have said land resold as though it were yet school land, thereby to cast a cloud on the title of plaintiffs and to harass the plaintiffs in the enjoyment of their perfect legal title by adverse possession and occupancy and their equitable title thereto aforesaid.

"The premises considered, plaintiffs pray this honorable court for a decree declaring the complete legal and equitable title to said...