Hoge v. Hubb

• Decision Date: 19 March 1888
• Citation: 94 Mo. 489,7 S.W. 443
• Parties: HOGE v. HUBB et al.
• Court: Missouri Supreme Court

7 S.W. 443

94 Mo. 489

HOGE v. HUBB et al.

Supreme Court of Missouri.

March 19, 1888.

1. PUBLIC LANDS — ASSIGNMENT OF WARRANT — IMPEACHMENT OF CONSIDERATION — LAPSE OF TIME.

The locator of a land-warrant assigned his certificate of location, by indorsement, in trade for corn, which was delivered by giving an order on a warehouseman. Afterwards he deeded the land to another person, who had actual notice of the assignment. The locator made no complaint as to the delivery of the corn, until 15 years after the trade, when he claimed that the warehouseman, who had become insolvent, had never complied with the order. Held, that this delay barred all right to rescind the contract for failure of consideration, and that the assignee of the certificate was entitled to a deed of the land from the holder of the legal title.

2. SAME — ASSIGNMENT OF WARRANT — EVIDENCE.

Although the record of a certified copy of a certificate of land-warrant location, including the assignment indorsed on the certificate, is inadmissible in evidence, being only the copy of a copy, yet the error of admitting it is harmless, when the assignment was otherwise proved without objection, and when the party objecting to such record claimed title through a deed from the original locator, and had purchased with actual notice of the assignment.

3. DEED — PROOF OF EXECUTION — PRIMA FACIE EVIDENCE — REV. ST. MO. § 2310.

Under Rev. St. Mo. § 2310, providing that when a deed has been recorded 10 years, and land claimed or held under it during that period, the deed itself shall be prima facie evidence of its execution, such a deed is admissible in evidence, without proof of execution, although defectively acknowledged.

4. TAXATION — TAX TITLE — INADEQUATE CONSIDERATION — EQUITABLE TITLE.

A purchaser of the legal title to land, knowing that his vendor had, in equity, no right thereto, bought the same land at tax sale for less than 1 per cent. of its value. Held, that his tax title was in equity fraudulent and void as against the equitable owner of the tax title, to whom the land was assessed, and who had no knowledge at the time of the tax or of the sale.

Appeal from circuit court, Jasper county; M. G. McGREGOR, Judge.

Suit by W. H. Hoge against Charles Hubb, Julius Maas, and W. C. Betts. Plaintiff obtained judgment, and defendants appeal.

Harding & Buller, for appellants. Shileds & Sennet, for respondent.

SHERWOOD, J.

Petition in equity to divest the defendants of legal title to certain land in Jasper county, to-wit, the N. W. ¼ of the N. W. ¼, and the S. W. ¼ of the S. W. ¼, of section 14, and the N. W. ¼ of the N. W. ¼ of section 23, township 28, range 33. To maintain the issues on his part, and to show such equitable title to the land as would afford basis for the relief sought, the plaintiff introduced in evidence the following:

"(1) A patent to Richard Bagnley, dated August 12, 1858, for N. W. ¼ of N. W. ¼ of section 24, township 28, range 33. (2) A patent to Richard Bagnley, dated June 3, 1858, for N. W. ¼ of N. W. ¼ of section 23, and the S. W. ¼ of the S. W. ¼ of section 14, township 28, range 33. (3) Pages 143 and 144 of book 35 of the deed records of Jasper county, as follows:

                         "`MILITARY BOUNTY LAND ACT OF 25TH SEPTEMBER, 1850
                               "`REGISTER'S OFFICE, SPRINGFIELD, MO., August 21, 1857
                

"`Military Bounty Land Warrant No. 100,058, in the name of Abraham Prosser, has this day been located by Richard Bagnley, upon the nw. qr. of the nw. qr. of sec. 14, twp. 28, range 33, subject to any pre-emption claim which may be filed for more land within forty days from this date. Contents

                of tract located, forty acres.                   W. H. GRAVES, Register
                

"`For value received, I, Richard Bagnley, to whom the within certificate of location was issued, do hereby sell and assign unto James Dixon, and to his heirs and assigns forever, the said certificate of location, and the warrant and land therein described, and authorize him to receive the patent therefor.

"`Witness my hand and seal this 15th day of November, 1861.

                "`Attest:                                RICHARD BAGNLEY. [Seal.]
                

"`State of Illinois, County of Marshall: On this 15th day of November, 1861, before me personally came Richard Bagnley, to me well known, and acknowledged the foregoing assignment to be his act and deed, and I certify that the said Richard Bagnley is the identical person to whom the within

                named warrant was issued.                          JOHN P. BOIRE, J. P
                                  "`DEPARTMENT OF THE INTERIOR
                                       "`GENERAL LAND-OFFICE, November 8, 1875
                

"`I, S. S. Burdette, commissioner of the general land-office, do hereby certify that the annexed is a true and literal exemplification of the duplicate certificate issued upon the location of warrant No. 100,058 for forty acres, act of September 25, 1850, and of the assignment indorsed thereon on file in this office.

"`In testimony whereof I have hereunto subscribed my name and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written.

                            "`S. S. BURDETTE, Commissioner of the General Land-Office.
                

"`The foregoing instrument was filed for record in this office on the 19th

                day of November, 1875, at 4:45 P. M.       JAMES A. BOLEN, Recorder.
                

"`By I. E. STEINMETZ, Deputy.'

"Also a precisely similar copy as to the N. W. ¼ of the N. W. ¼ of section 23, and S. W. ¼ of the S. W. ¼ of section 14, township 28, and range 33. To all of which the defendants objected as not the best evidence, and because the said records did not purport to be copies of the originals, but merely of copies, and were not entitled to be recorded, and because the said assignments purported to have been acknowledged before a justice of the peace, in the state of Illinois, and were not properly acknowledged; all of which objections the court overruled, and the defendant excepted at the time. Plaintiff offered in evidence a quitclaim deed to W. V. Hoge, dated July 29, 1871, recorded September 4, 1871, book V, p. 272, conveying the land in controversy, consideration, $400, acknowledged before a justice of the peace in Ohio; to the reading of which in evidence the defendants objected, because the same was not acknowledged before an officer authorized by law. Plaintiff then read in evidence a warranty deed from James Dixon and wife to W. V. Hoge, dated July 30, 1880, recorded September 20, 1880, conveying the land in controversy, consideration, $400; reciting that it was made to correct a defect in the above-mentioned quitclaim deed. Also, a power of attorney from Richard Bagnley to Richard Lloyd, dated November 17, 1874, duly acknowledged and recorded November 17, 1875, empowering the sale and conveyance of said land. Also, a quitclaim deed under said power of attorney by Richard Bagnley to W. D. Addison, dated December 15, 1874, recorded December 22, 1874, consideration, $80.00, conveying the land in controversy. Also, a power of attorney from W. D. Addison to Richard Lloyd, dated May 24, 1876, recorded September 12, 1876, duly acknowledged and recorded, empowering him to sell and convey said land. Also, a deed from W. D. Addison by Richard Lloyd, his attorney in fact, to Charles Hubb, dated June 9, 1876, recorded June 15, 1876, conveying the land in controversy; consideration, $400.00. Also, a quitclaim deed from Charles Hubb to Julius Maas, dated July 27, 1876, recorded January 22, 1877, conveying one-third of said land; consideration, $133.33. Also, the record of a mortgage deed made by W. C. Betts to Julius Maas, October 13, 1879, recorded October 15, 1879, conveying an undivided one-third of said land to secure a note for $300.00; to which defendants objected, and excepted as irrelevant and incompetent. Also, the record of a sheriff's deed to Charles Hubb, dated October 19, 1878, duly acknowledged, and recorded December 31, 1878, reciting a judgment in the common pleas court of Jasper county, in favor of Thos. A. Wakefield, collector, and against W. V. Hoge, rendered May 16, 1878, for delinquent road taxes for the year 1874, for seventy cents principal and forty-four cents interest, conveying the land in controversy; consideration, $1.00. Also, the original record and files in said tax suit, including the petition, tax bill, affidavit of non-residence, order of publication, and judgment, all in regular order and proper form. John N. Wilson, county clerk, testified that the way the road tax came to be returned delinquent was that the county was under township organization and the road-tax books were placed in the hands of the township road overseer for collection, and he returned them delinquent when unpaid after the other delinquent lists had been returned, and they were then carried forward into the back-tax book, but this was not done until in the summer of 1875, and that from this book all the taxes on the land in controversy for the year 1874 appeared to be paid except the road tax. C. P. Cunningham testified that this land was about three miles from Webb City, and had probably doubled in value since 1870, and he thought was worth $20.00 per acre, and that he attended to paying taxes for plaintiffs, and took the tax receipts produced in evidence. Isaac Fountain testified that the land was worth $10.00 per acre in 1878. Plaintiff also introduced testimony tending to show that W. C. Bett's requested the collector's...