General American Life Ins. Co. v. Dunklin County

• Decision Date: 20 August 1936
• Citation: 96 S.W.2d 380,339 Mo. 289
• Parties: General American Life Insurance Company, a Corporation, Appellant, v. Dunklin County, a Municipal Corporation and Subdivision of the State
• Court: Missouri Supreme Court

96 S.W.2d 380

339 Mo. 289

General American Life Insurance Company, a Corporation, Appellant, v. Dunklin County, a Municipal Corporation and Subdivision of the State

Supreme Court of Missouri

August 20, 1936

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Reversed and remanded (with directions).

Williams Nelson & English, Ben R. Swank and John A McAnally for appellant;

W. G. Bray of counsel.

As there is only one question to be decided in this case, and that is whether Dunklin County, Missouri, is vested with title to the land in question, assignments of error 1 and 2 may properly be grouped together. Judgment in this case, under the facts and the pleadings, should have been for the plaintiff. Act of Congress, Sept. 28, 1850, Title 43, U.S.C. A., Sec. 982; Pryor v. Lambeth, 78 Mo. 538; Simpson v. Stoddard County, 173 Mo. 421, 73 S.W. 700; Tubbs v. Wilhoit, 138 U.S. 134, 11 S.Ct. 279, 34 L.Ed. 887; Wright v. Roseberry, 121 U.S. 488, 7 S.Ct. 985, 30 L.Ed. 1039; Railroad Co. v. Baldwin, 103 U.S. 426, 26 L.Ed. 578; M., K. & T. Ry. Co. v. Ry. Co., 97 U.S. 491, 24 L.Ed. 1095; Wilson v. Beckwith, 140 Mo. 385, 41 S.W. 985; Schulenberg v. Harriman, 21 Wall. 44, 22 L.Ed. 551; Rogers Locomotive Machine Works v. Am. Emigrant Co., 164 U.S. 559, 41 L.Ed. 552; Little v. Williams, 231 U.S. 335, 58 L.Ed. 256; Laws 1851, p. 238; Laws 1853, p. 108; Laws 1855, p. 154; Laws 1868, p. 68; Secs. 11128, 11156, R. S. 1929; Laws 1869, p. 66; Kline v. Groeschner, 219 S.W. 648; Hannibal & St. Joseph Railroad Co. v. Smith, 41 Mo. 310; French v. Spencer, 21 How. 228; Landes v. Brant, 10 How. 248; Ross v. Borland, 1 Pet. 664; Rutherford v. Green, 2 Wheat. 197; Gibson v. Chouteau, 39 Mo. 588; State ex rel. Robbins v. County Court, New Madrid County, 51 Mo. 62; Natl. Cypress Pole & Piling Co. v. Hemphill Lbr. Co., 31 S.W.2d 1059.

Elbert L. Ford for respondent;

W. L. Proffer of counsel.

(1) It is admitted in evidence that Dunklin County, Missouri, has a patent to the lands described from the State of Missouri, dated January 24, 1934; and it is further admitted in evidence that the State of Missouri has a patent issued to it from the United States, dated December 28, 1933. Does the admitted conveyances establish title to the lands in the defendant, Dunklin County, Missouri? Sec. 2, Act of Congress, Sept. 28, 1850; R. S. 1929, secs. 11156, 11157, 11158; Hann & St. Joseph Railroad Co. v. Smith, 41 Mo. 323. The above conveyances have not in any manner been canceled, nor does appellant contend that said patents are not valid and binding to all intents and purposes for which they were issued. R. S. 1929, sec. 1684. (2) The Act of Congress of September 28, 1850, did not pass title to all swamp and overflowed lands within the State of Missouri to the State, ipso facto, as a grant in praesenti. Hann. & St. Joseph Railroad Co. v. Smith, 41 Mo. 330; West v. Cochrane, 17 How. 403; Magwire v. Tyler, 1 Black, 195; Stanford v. Taylor, 18 How. 409; Menard v. Massey, 8 How. 293; Lafayette v. Kenton, 18 How. 59, 76 S.Ct. 95, 19 L.Ed. 573; Hemphill Lbr. Co., v. Parker, 254 S.W. 698. (3) The United States, Department of the Interior, General Land Office is vested with the sole and absolute authority to survey and plat public lands, belonging to the United States, and until that is done by the Government no conveyance will convey title to said public lands from the Government, because they cannot be conveyed by guess. Maddux v. Brown, 91 Cal. 523; Keeran v. Griffith, 31 Cal. 461; Marsh v. Hendy, 27 P. 647; Dewar v. Ruiz, 89 Cal. 385, 26 P. 832; Buchanan v. Nagle, 88 Cal. 591, 26 P. 512; Nuttall v. Lovejoy, 90 Cal. 163, 27 P. 69; Wren v. Mangan, 88 Cal. 274, 26 P. 100; Funkhouser v. Peck, 67 Mo. 19. (4) Swamp lands are not the general property of the county and can only be conveyed in the manner prescribed by law. (5) The doctrine of relation back or inurement cannot be invoked in the case at bar to sustain plaintiff's alleged chain of title based upon the county patent to W. F. Shelton, Jr., because, First, the patent is only, in law a quitclaim deed, or a certificate of purchase, and does not pass an after acquired title, and Second, because, the county conveyed without a covenant of warranty, which the law requires in order to pass an after acquired title.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

General American Life Insurance Company, a corporation, plaintiff below, appeals from a judgment adjudging title to Lots Three (3) and Six (6), otherwise described as the East half (E 1/2) of the Northwest quarter (N.W. 1/4) of Section Twenty-eight (28), Township Eighteen (18) North, Range Eight (8) East, lying, being and situate in the County of Dunklin and State of Missouri, in said County of Dunklin, defendant below.

The case was instituted on November 20, 1935, and the pleadings sufficiently present the issues hereinafter discussed.

The agreed statement of facts upon which the case was submitted insofar as deemed material, establishes the following:

The land involved is a portion of the swamp and overflowed lands within said county of Dunklin, being swamp and overflowed land on September 28, 1850, the date of the original enactment of an Act of Congress entitled "An Act to enable the State of Arkansas and other states to reclaim the 'Swamp Lands' within their limits." [9 Stat. 519, 520; now Secs. 2479, 2480, 2481, R. S. U. S. 1873-1874, 43 U.S.C. A., secs. 982, 983, 984.] The provisions of said act, material here, are as follows:

"Sec. 2479. To enable the several States (but not including the States of Kansas, Nebraska, and Nevada) to construct the necessary levees and drains, to reclaim the swamp and overflowed lands therein -- the whole of the swamp and overflowed lands, made unfit thereby for cultivation, and remaining unsold on or after the twenty-eighth day of September, A. D. 1850, are granted and belong to the several States respectively, in which said lands are situated: . . ."

"Sec. 2480. It shall be the duty of the Secretary of the Interior, to make accurate lists and plats of all such lands, and transmit the same to the governors of the several States in which such lands may lie, and at the request of the governor of any State in which said swamp and overflowed lands may be, to cause patents to be issued to said State therefor, conveying to said State the fee-simple of said land. . . ."

By acts of General Assemblies of the State of Missouri provisions were made for the passing of the right, title and interest vested in the State of Missouri in and to overflowed and swamp lands under said Act of Congress to the several counties in which said lands were respectively situated. [See: Laws 1851, p. 238; Laws 1853, p. 108; Laws 1855, pp. 154, 160; Laws 1857, p. 32; Laws 1868, p. 68; Laws 1869, p. 66.] Plaintiff relies on a patent to the land here involved issued by the county of Dunklin, Missouri, to W. F. Shelton, Jr., under date of July 16, 1903, and subsequent mesne conveyances vesting the right, title and interest of said Dunklin County, if any, in plaintiff. Article 3 of Chapter 122, Revised Statutes 1899 -- the law governing said county patent (now Art. 5 of Chap. 66, Secs. 11128-11164, R. S. 1929, Mo. Stat. Ann., pp. 4873 et seq., referred to, infra) is, insofar as material, to the following effect.

By Section 11128 all of the overflowed and swamp lands granted the State of Missouri by the aforesaid Act of Congress "are hereby donated to the counties in which they may be respectively situated, and shall be the absolute property of such counties for the purposes hereinafter designated. . . ."

By Section 11129 the several county courts are authorized to have said lands drained and reclaimed, etc.

"Sec. 11130. Whenever, in the judgment of said county court, it shall be to the interest of said counties to do so, they shall order the sheriff to sell the same at public vendue. . . . Such lands shall be sold . . . with or without draining or reclaiming the same, as in their discretion they may think most conducive to the interest of their respective counties; . . . and provided further, that the county courts of the several counties in this state may, if in their judgment it is deemed advisable, sell any of the swamp or overflowed lands in their counties at private sale, without advertisement as provided in this section, at a price not less than one dollar and twenty-five cents per acre. . . ."

"Sec. 11131. Whenever full payment shall be made for any of said land . . . the county clerk (court) shall cause the clerk of said court to issue to the purchaser . . . a patent for the same. . . ."

"Sec. 11156. In order to convey to the different counties in the State of Missouri a complete title to all the swamp and overflowed lands which have been granted and patented to the State of Missouri . . . (under the aforesaid Act of Congress), the secretary of state is hereby directed to prepare a patent or patents, embracing all the swamp or overflowed lands lying within the limits of the several counties of this State, conveying thereby all the title and interest of the state of Missouri in and to such lands, to the counties in which such lands may lie. . . ."

Section 11158 makes it the duty of the officers named in Section 11156 "to convey by patent or patents, as herein provided, all such overflowed and swamp lands as may hereafter be patented to the state of Missouri by the government of the United States, to the respective counties in which the same may lie."

The land here involved was not surveyed at the time of the original Government survey for the reason it was covered with water at that time. Under the supervision and direction of the Commissioner of the General Land Office of the Department of...