Brinkerhoff v. Juden

• Decision Date: 03 March 1914
• Citation: 164 S.W. 523,255 Mo. 698
• Parties: SAMUEL BRINKERHOFF et al., Appellants, v. CHARLES G. JUDEN et al
• Court: Missouri Supreme Court

164 S.W. 523

255 Mo. 698

SAMUEL BRINKERHOFF et al., Appellants, v. CHARLES G. JUDEN et al

Supreme Court of Missouri, First Division

March 3, 1914

Appeal from Ste. Genevieve Circuit Court. -- Hon. Charles A Killian, Judge.

Affirmed.

W. M Williams, Arthur L. Oliver, Victor A. Remy, Moses Whybark and George B. Webster for appellants.

(1) The conveyance by Pemiscot county to Houck violated our swamp land laws, and it is therefore invalid. Railroad v Hatten, 102 Mo. 55; Railroad v. Wayne County, 125 Mo. 357; Estate Co. v. Wayne County, 123 Mo. 478; Sturgeon v. Hampton, 88 Mo. 213; Hooke v. Chitwood, 127 Mo. 376. An examination of the opinion in Simpson v. Stoddard County, 173 Mo. 421, shows that it does not overrule, but adheres to the prior decisions. This is very clearly proved by recent opinions of this court, in: Wheeler v. Land Co., 193 Mo. 292; Whitman v. Giesing, 224 Mo. 616. (2) Cape Girardeau & Southwestern Ry. Co. v. Hatten, 102 Mo. 45, established a rule of property, upon the faith of which appellants' grantor purchased the lands in suit. To reverse that case and destroy by a contrary decision, the validity of Franklin's patents and subsequent conveyances made while that decision stood, would violate rights guaranteed to appellants by both the State and Federal constitutions. Dunklin County v. Chouteau, 120 Mo. 592; Muhlker v. Railroad, 197 U.S. 544; Rowan v. Runnels, 5 How. 134; Life Ins. & Trust Co. v. Debolt, 16 How. 416; Lumber Co. v. Mississippi, 97 Miss. 571. (3) Appellants as the grantees of Franklin, the junior patentee of Pemiscot county, may maintain this suit. Wheeler v. Land Co., 193 Mo. 290; Moss v. Kauffman, 131 Mo. 427. The rule laid down in Weissenfels v. Cable, 208 Mo. 515, which afforded the basis of the decision below, is founded on champerty and maintenance. Wilson v. Railroad, 120 Mo. 58; Smith v. Harris, 43 Mo. 562. But here, neither champerty nor maintenance exists. Duke v. Harper, 2 Mo.App. 4; Torrence v. Shedd, 112 Ill. 475; 1 Bouvier's Law Dictionary (15 Ed.), 299; 2 Bouvier's Law Dictionary (15 Ed.), 137. Therefore, to apply the Weissenfels v. Cable rule would not only be unreasonable, but would be contrary to the decisions of this court and to the public policy of this State. Wheeler v. Land Co., 193 Mo. 292. Moss v. Kaufman, 131 Mo. 424, guaranteed to Franklin when he purchased from the county a remedy against any claim under the Houck patent. This remedy cannot now be taken away from Franklin's grantees. Butz v. Muscatine, 8 Wall. 575. (4) Wholly regardless of the invalidity of the Houck patents, title should be declared in appellants, because: (a) Houck's deed to his daughter, of June 28, 1898, made her a mere trustee to hold the naked legal title for her father's benefit. Olden v. Hendricks, 100 Mo. 539; In re Peabody, 118 F. 268. This trust was clearly manifested by the trust deed to Blomeyer of June 28, 1898. Moore v. Carling, 29 N.J.Eq. 436; Barrell v. Joy, 16 Mass. 221. The entire equitable title remained in Houck, and after he conveyed it to Franklin, either the latter or his grantees were entitled to demand from the trustee a transfer of the legal title. Rylands v. Bank, 151 Mo. 10; Hafner v. St. Louis, 161 Mo. 35; Ives v. Harris, 7 R. I. 424; Eliott v. Armstrong, 2 Blackf. (Ind.) 207. (b) Aside from this, the failure of Irma Houck's deed to Franklin, of April 20, 1899, to describe the lands in suit, was due entirely to a mutual mistake, which a court of equity will remedy by reforming the deed. Sicher v. Rambousek, 193 Mo. 129; Barry v. Rownd, 119 Iowa 105; McCain v. Finance & Trust Co., 29 Ky. L.R. 1292; Parish v. Camplin, 139 Ind. 1; Lyon v. Pollock, 99 U.S. 668; Ezell v. Peyton, 134 Mo. 490; Hill v. Kuhlman, 87 F. 500; Norris v. Sargeant, 126 Mich. 557.

Edward A. Rozier and Martin L. Clardy for respondents.

(1) The title to all swamp and overflowed lands passed from the general Government to the State of Missouri, by the Act of September 28, 1850. This act has been held to be an act in praesenti, although the identity of such lands was determined later. Simpson v. Stoddard Co., 173 Mo. 444; Railroad v. Smith, 76 U.S. 96; Wright v Roseberry, 121 U.S. 488; Irwin v. Savings Union, 136 U.S. 478, 28 F. 708; Tubbs v. Willoit, 138 U.S. 134; Fletcher v. Pool, 20 Ark. 100; Hendry v. Willis, 33 Ark. 833; Branch v. Mitchell, 24 Ark. 431; State v. Bank, 106 Ind. 435; Bailey v. Callahan, 87 Iowa 107. While the Act of September 28, 1850, gave the lands to the State for the purpose of reclamation, such trust has been held not to run with the lands, but to be a personal trust of the State. Simpson v. Stoddard Co., 173 Mo. 444; Pool v. Brown, 98 Mo. 675; Dunklin County v. County Court, 23 Mo. 449; Mills v. Railroad, 107 U.S. 557; Whiteside Co. v. Burchell, 31 Ill. 68; Graston v. Scott, 5 Ore. 48; LaPointe v. Ashland, 47 Wis. 271; Wilson v. Beckwith, 140 Mo. 386. "The title to these swamp lands was vested in the counties to be disposed of in the discretion of the county courts. In selling the lands they possessed the same powers that owners generally possess under like circumstances." Simpson v. Stoddard Co., 173 Mo. 421; Linville v. Bohannon, 60 Mo. 554; Funkhouser v. Mallen, 62 Mo. 555; Viele v. Van Sternberg, 31 F. 249; Lumber Co. v. Blackman, 202 Mo. 296; Pine Co. v. Hall, 105 F. 91; Boynton v. Haggart, 120 F. 819. "We have no hesitancy in putting our fingers on section 6 of the Act of 1869 [now Sec. 8028, R.S. 1909], as the authority for the county courts to sell and convey the swamp lands in their respective counties at private sales and for less than $ 1.25 as was unanimously held by this court in Pool v. Brown, 98 Mo. 675." Simpson v. Stoddard Co., 173 Mo. 421. (2) A patent to swamp lands made by order of the county court will pass the title of the county. Prior v. Scott, 87 Mo. 303; Hall v. Gregg, 138 Mo. 292; Stone v. Perkins, 217 Mo. 598. A patent to swamp lands from the county, regular on its face and based on order of the county court, is valid until set aside by appropriate proceedings. Simpson v. Stoddard Co., 173 Mo. 458; Frank v. Goddin, 193 Mo. 399; Cramer v. Keller, 98 Mo. 279; Sorpy v. Papin, 7 Mo. 503; Elliott v. Buffington, 149 Mo. 676; Hall v. Gregg, 138 Mo. 286; Alt v. Stoker, 127 Mo. 466; Pool v. Brown, 98 Mo. 684. This patent is a valid patent and at most subject to its rescission for failure to make full payment. 29 Am. & Eng. Ency. Law, 1065; Hume v. Egan, 73 Mo.App. 276; Kearney v. Vaughn, 50 Mo. 287; Stuart v. Rector, 1 Mo. 361; Mitchell v. Parker, 25 Mo. 31; Holme v. Steatman, 35 Mo. 308; Railroad v. Trust Co., 95 F. 525; Candy Co. v. Ins. Co., 41 Mo.App. 543; Waddel v. Williams, 50 Mo. 222; Och v. Railroad, 136 Mo. 45; 8 Am. & Eng. Ency. Law, 819, sec. 10. It being practically conceded that the patents issued to Houck are only voidable, then the subsequent act of Pemiscot county in issuing patents to Franklin was a nullity. For the court, while the outstanding patent was uncanceled, absolutely had no jurisdiction to take steps toward selling the lands so patented. Stone v. Perkins, 217 Mo. 586; Elliott v. Buffington, 149 Mo. 663; Cunningham v. Snow, 87 Mo. 591. (3) This proceeding is not a direct attack, but only a collateral attack, and the county court having jurisdiction of the subject-matter, acting within the express power granted to it by the statute, and the order directing the issue and the patent reciting that the consideration had been paid in full, shows that the county court found all the necessary facts to justify the order, the same stands upon the plane of any other judgment of any other court and entitled to all the verities of such judgments. Frank v. Goddin, 193 Mo. 398; State ex rel. v. Searcy, 39 Mo.App. 393; State ex rel. v. Searcy, 46 Mo.App. 421; State ex rel. v. Searcy, 111 Mo. 236; State v. Dugan, 110 Mo. 138; State v. Evans, 83 Mo. 319; Leonard v. Sparks, 117 Mo. 103; Hadley v. Bernero, 103 Mo.App. 549; State ex rel. v. McCord, 207 Mo. 523; State ex rel. v. Huff, 105 Mo.App. 361; Bremen v. Mante, 108 Mo.App. 339; Hathaway v. Railroad, 94 Mo.App. 343; State v. Weatherby, 45 Mo. 17; Jeffries v. Wright, 51 Mo. 220; Johnson v. Bragley, 65 Mo. 250; Fulkerson v. Davenport, 70 Mo. 541; Scott v. Crews, 72 Mo. 263; Henry v. McKerlin, 78 Mo. 416. "The patent to Powell is in conformity to statute and was effectual to pass the title of the county to this land and vest it in Powell, provided the title was in the county at the time of the issuing of the patent. The patent read in evidence by defendant was junior in date, and of course did not convey any legal title to the patentee, as it had already passed under the antecedent grant to Powell." Cunningham v. Snow, 82 Mo. 591; Stone v. Perkins, 217 Mo. 598; Allison v. Hunter, 9 Mo. 750; Griffith v. Deerfelt, 17 Mo. 31; Carman v. Johnson, 20 Mo. 110. The infirmity, if infirmity it be (the failure to pay not less than $ 1.25 per acre for accreted lands), does not appear on the face of respondent's patents and the proceedings leading up to the same. It arises from an exceedingly complicated mathematical calculation. Can such collateral assault on this patent be allowed? We think not. It must be remembered that the genuineness of the patent is not assailed. If therefore the irregularity appeared in the very proceedings or in the patent itself, the rule might be different and the patent held void, when offered in evidence. Morgan v. Stoddard County, 187 Mo. 323. But the better doctrine, in cases where the irregularity is made to appear by matter in pais dehors the court record, is that the patent should be avoided by a direct proceeding, and that while it remains operative and free from direct assault, it may not be overthrown by indirection in a collateral proceeding such as this. Simpson v. Stoddard Co., 173...