Carson v. Berthold & Jennings Lumber Co.
| Decision Date | 12 March 1917 |
| Citation | 192 S.W. 1018,270 Mo. 238 |
| Parties | E. E. CARSON v. BERTHOLD & JENNINGS LUMBER COMPANY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. J. P. Foard, Judge.
Reversed.
N. A Mozley and Francis M. Curlee for appellants.
(1) The patent of Kittrell, Swamp Land Commissioner, under which plaintiff claims, shows on its face that the land was sold at fifty cents per acre, and is, therefore, void. Bayless v Gibbs, 251 Mo. 492. (2) The title to the land therefore, remained in Butler County, and passed to defendants' grantors by the patent from the Swamp Land Commissioner. (3) Defendants acquired title by the twenty and thirty-year Statutes of Limitations. Secs. 1884, 7997, R. S. 1909; De Hatre v. Edmonds, 200 Mo. 246; Collins v. Pease, 146 Mo. 135. (4) The payment or non-payment of taxes is proved as a fact, and by the same sort of testimony by which any ordinary fact may be proven. Rollins v. McIntyre, 87 Mo. 496; Campbell v. Greer, 209 Mo. 199. (5) The plaintiff must himself prove an indefeasible title, and cannot rely on any weakness, if any, in defendants' title. Wheeler v. Land Co., 193 Mo. 279; Senter v. Lumber Co., 255 Mo. 590; Skillman v. Clardy, 256 Mo. 297. (6) If plaintiff has any title, it is only an equitable title. His petition declares on an equitable title and he claims through deed of June 1, 1878, from John T. Hodgen directly to the latter's wife Elizabeth D. Hodgen, which deed conveyed no legal title. Turner v. Shaw, 96 Mo. 22; Crawford v. Whitmore, 120 Mo. 44. (7) Plaintiff is barred of equitable remedy by the laches of himself and grantors. Shelton v. Horrell, 232 Mo. 358; Troll v. St. Louis, 257 Mo. 660; Moreman v. Talbott, 55 Mo. 392; Landrum v. Bank, 63 Mo. 48; Cockrill v. Hutchinson, 135 Mo. 67; Sensenderfer v. Smith, 66 Mo. 80; Schradski v. Albright, 93 Mo. 42.
David W. Hill for respondent.
(1) The consideration of fifty cents per acre in the Ripley County patent was authorized by a statute then in force. Laws 1856-57, p. 464. (2) The title to the land in suit never rested in Butler County. Laws 1857, p. 32; Simpson v. Stoddard Company, 173 Mo. 421; French v. Fyan, 93 U.S. 169. (3) After the land was patented by Ripley County it was located in Butler County by a change of the county line. Laws 1863-64, p. 409. (4) Sec. 7997, R. S. 1909 could not disturb or affect title to this land -- could not disturb vested rights. Telephone Co. v. Telephone Co., 236 Mo. 132. (5) Defendants' grantors entered upon the land and cut timber in 1906 and built some shacks for sawmill purposes -- defendants attempted to purchase in 1909. Defendants admit that saw-mill shacks did not enhance value of land. Disinterested witness swore cutting timber damaged and did not enhance value of land. Plaintiff brought suit in 1913. Plaintiff's grantors had paid taxes within thirty years, and he is not barred by any statute or laches. Marshall v. Hill, 246 Mo. 25. (6) The presumption obtains that the interlineation in the tax book was regularly made. 2 Cyc. 242. The so-called "railroad tax books," introduced by defendants, to prove payment of taxes, were not authorized by law. Secs. 7576, 7551, R. S. 1889; Secs. 6723, 6704, R. S. 1879. (7) The deed to Elizabeth D. Hodgen from her husband conveyed the equitable title, and when he died, or the marriage ceased from any other cause, the legal title was thereupon vested in her, and her deed, as widow, conveyed the absolute title to John M. Hodgen. Stark v. Kirchgraber, 186 Mo. 633. (8) Laches, relied upon as an estoppel, must be pleaded, and there is no such plea in this case. Turner v. Edmonston, 210 Mo. 428; Grooms v. Morrison, 249 Mo. 550.
I. Suit to quiet title and for possession of eighty acres of swamp land. In the first count of his petition plaintiff alleges he is the "equitable owner" of the land. In the second count he alleges that on the 19th day of June, 1913, he was the owner of the same land and prays ejectment of defendants and damages and monthly profits. The answer of defendants avers that they own the land in fee, and, further, that plaintiff is estopped by laches and barred by the thirty-year Statute of Limitations. Issue was joined by a reply. The case was tried by the court, a jury being waived, and judgment was rendered on the first count of the petition that plaintiff "is the absolute owner in fee simple of the land" in dispute, and on the second count the court found the issues for plaintiff and gave judgment for $ 300 damages, $ 40 as monthly rents and profits, and for possession of the premises and awarded execution accordingly.
II. The land was granted by the United States to the State of Missouri through an act of Congress, September 28, 1850. This land was situated in Ripley County, Missouri, and the full title thereto was vested in said county by grant from the State through the Act of the General Assembly passed on November 4, 1857. [Laws 1857 (Adj. Ses.), p. 32.] In 1864 the line between Ripley and Butler Counties was altered, whereby the land was thrown into Butler County. The title claimed by plaintiff was derived through mesne conveyances from Isaac N. Hedgepeth, to whom the land was patented by Lemuel Kittrell, Swamp Land Commissioner of Ripley County, on May 20, 1859. The title of the defendants is based upon a patent from the State of Missouri to Butler County, dated February 17, 1870, and recorded March 30, 1870, after which Butler County, by its Swamp Land Commissioner, patented the land to the St. Louis Iron Mountain and Southern Railway Company, duly recorded February 3, 1871, and on May 10, 1901, the said corporation conveyed the land to William M. Barron, by deed recorded June 26, 1901, and the latter conveyed the title to the defendants.
It is insisted by defendants that inasmuch as the original patent from Ripley County to Isaac N. Hedgepeth shows that the land was sold at fifty cents per acre, such patent was absolutely void under the doctrine of Bayless v. Gibbs, 251 Mo. 492, 158 S.W. 590. This assignment is not well taken, for it distinctly appears that there was then in force an act of the Legislature, approved January 30, 1857 (Laws 1856, p. 464) which provided that the minimum price for swamp lands lying in Ripley and other counties mentioned, should be fifty cents an acre. This act of the Legislature does not seem to have been repealed in 1859, when the Swamp Land Commissioner of Ripley County conveyed the land in dispute to the first taker in plaintiff's chain of title. Hence the validity of that conveyance is not affected by the ruling in Bayless v. Gibbs, supra. Moreover, this statute does not seem to have been called to the attention of the court in Bayless v. Gibbs, and anything ruled in that case contrary to its provisions is, therefore, disapproved.
Assuming, as we must, under the terms of this statute, that the title of Ripley County was transferred prior to the change of boundary between that county and Butler County, whereby the land was taken into and became a part of the domain of Butler County, it is evident that no title to the land ever vested in Butler County, and hence defendants could not have acquired any title based on a conveyance from it.
III. This leaves for decision only the question as to the nature of the title acquired by plaintiff and whether or not it has been lost by laches or barred by the thirty-year Statute of Limitations.
With reference to the title acquired by plaintiff, appellant makes the point that one of the mesne conveyances upon which it depended was a direct deed from a husband to his wife (Hodgen to Hodgen) executed before the enactment of the Married Women's Statute, and hence under the authority of Turner v. Shaw, 96 Mo. 22, 8 S.W. 897, and subsequent cases, the grantee only acquired an equitable estate. But an examination of the abstract discloses that the estate thus vested in her remained such until after the death of her husband, and the rule is now established (Stark v. Kirchgraber, 186 Mo. 633, 85 S.W. 868 et seq.) that in such cases the statute of uses executed the dry trust which was in her husband whenever the wife became discovert. Hence the point made by appellant is no longer tenable.
It is further insisted by appellant that respondent is estopped by the laches of his grantor. Waiving for the consideration of this point, whether the pleadings to that effect sufficiently state the equities calling for the application of that rule, we will dispose of the point.
The basis of the rule estopping one by his own laches or that of persons with whom he stands in privity, is laid in the equitable maxim that "he who seeks equity must do equity," and hence if the owner of a superior title with full knowledge of his own rights, neglects to assert or establish them against an adverse claimant in possession of the land, for such a length of time as to afford a presumption that they have been abandoned or would prevent the other party from proving the claim or title, or would inflict an inequitable injury upon him, then the owner of such paramount title loses the aid of equity when he subsequently seeks to recover the land. This doctrine rests purely on equitable principles and may be invoked independently of the lapse of time fixed by the Statutes of Limitation. [Toler v. Edwards, 249 Mo. 152, 155 S.W. 26, and cases cited.] Although the present holder of the title to the property in dispute acquired the same by quit-claim deed from a non-resident whom he succeeded in finding after letters of inquiry, immediately before the institution of the suit, yet we do not discover in the facts shown in the record, that the delay of the previous holders of the title, in...
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