Callahan v. Davis

• Decision Date: 06 December 1886
• Citation: 90 Mo. 78,2 S.W. 216
• Parties: CALLAHAN v. DAVIS and others.
• Court: Missouri Supreme Court

2 S.W. 216

90 Mo. 78

CALLAHAN v. DAVIS and others.

Supreme Court of Missouri.

December 6, 1886.

1. PUBLIC LANDS — QUITCLAIM BY SETTLER PRIOR TO PATENT.

A quitclaim deed made by a settler after he has entered a claim, but prior to the grant of a United States patent to him, will, after the granting of the patent, be held to have passed the legal title as of the date of its execution.

2. EJECTMENT — POSSESSION — PARTIES DEFENDANT — TAX TITLE — 2 WAG. ST. MO. § 222, PAGE 1207.

In an action of ejectment, where there is a party in actual possession, he must be made a defendant, and 2 Wag. St. Mo. § 222, p. 1207, giving a right of action to recover possession against parties putting tax deeds on record, whether in actual possession or not, only applies where the land is vacant; and where the tax deed is void on its face, it will not set in motion the three-years limitation under this section.

NORTON, J., dissenting.

Appeal from circuit court, Nodaway county.

Ejectment. Judgment for plaintiff. Defendant appeals.

Edwards & Ramsey, for respondent, Callahan. Johnston & Anthony, for appellants, Davis and others.

BLACK, J.

The plaintiff commenced this action of ejectment in May, 1881, against William, Patrick, John, and Thomas Davis, for the possession of the S. W. ¼ of section 13, and the E. ½ of the S. E. ¼ of section 14, all in township 63, range 35, Nodaway county. The answer is a general denial. The plaintiff offered the following evidence: (1) Certified plat of the original entry of the land, showing that it was entered at a United States land-office, by Alonzo Thompson, on the tenth February, 1857; (2) quitclaim deed from Thompson to Henry Turpin, dated April 18, 1857; (3) patent from United States to Thompson, dated December 15, 1858; (4) deed from Turpin to Ford and others, made in 1858; (5) deed from a part of the last-named grantees to plaintiff, conveying 203-243 of the land; (6) oral evidence which will be noticed further on.

The defendants put in evidence a tax deed to Talbott & Morehouse, dated twenty-fourth January, 1879, which recites a tax judgment against these two parcels of land, but it only purports to convey one of them; also a quitclaim deed from Morehouse to Talbott, containing a like description; and a deed from the executrix of the estate of Talbott to the defendants to the land in dispute, dated in October, 1880. The land had been in the possession of Talbott several years before the date of the tax deed, but under what title does not appear.

It will be seen Thompson conveyed the land to Turpin by quitclaim deed after he had entered it, and before he received the patent; and the contention is that this deed did not convey the after-acquired title, so that Turpin only got an equity, and that the plaintiff cannot maintain this suit at law on that title. Thompson, by his certificate of entry, got an imperfect title, — one upon which, by the laws of this state, he could have maintained an action of ejectment for the land against any person not having a better title. Rev. St. 1855, § 2, p. 690. The patent, when issued, made that imperfect title a perfect, legal one. The entry and the patent were all several acts necessary to make a complete title, and are to have relation back to the act which created the equitable title. Landes v. Brant, 10 How. 372; Touchard v. Crow, 20 Cal. 160. This doctrine of relation will be applied, as between the person thus acquiring the title by the successive acts and those who acquire an interest in the land from him, between him and those holding under him. Though it is a fiction of law, yet it will be resorted to when the ends of justice require it, and rights of third persons do not intervene. Gibson v. Chouteau, 13 Wall. 98; Ford v. French, 72 Mo. 250. Applying the doctrine to the present case, the patent will take effect as a grant from the date of the entry, and protect the intermediate purchaser. The quitclaim deed, therefore, passed the legal title to Turpin.

From the evidence offered by the plaintiff, it appears that the defendants were not in the possession of the premises when this suit was begun, and did not get possession for more than six months thereafter. Carroll, who was never made a defendant, was in actual possession...