Hoge v. Hubb
| Decision Date | 19 March 1888 |
| Citation | 7 S.W. 443,94 Mo. 489 |
| Parties | Hoge v. Hubb et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.
Affirmed.
Harding & Buller for appellants.
(1) The court erred in overruling the defendants' objections to the record of alleged copies of the duplicates. The statute nowhere provides for recording copies of such instruments. R S., secs. 691, 702-3-4-5. And even if the originals had been recorded the record would have been inadmissible because they purported to have been acknowledged before a justice of the peace in Illinois, and there was no evidence that such a justice could take acknowledgments. Crispen v Hannovan, 50 Mo. 415; Musick v. Barney, 49 Mo 458. There was no proof of the loss or destruction of the originals, which would have been necessary before even the original copies could be received in evidence. Burton v. Murrain, 27 Mo. 235. (2) Payment of the purchase price is the very essence of the equity for a decree in this class of cases, and it being neither alleged, proved, nor found by the court that Bagnley ever was paid for the land, and the evidence showing that in fact he never was paid, there is no equity in the plaintiff's bill and it ought to have been dismissed. O'Fallon v. Kennedy, 45 Mo. 129. Plaintiff seeks relief in a court of equity by a decree in the nature of specific performance. Such applications are always to the discretion of the court and will not be entertained except in cases where it would be strictly equitable to make such decree. Southworth v. Hopkins, 11 Mo. 331. And the plaintiff must make out a case by clear and positive evidence, so as not to leave a reasonable doubt in the mind of the chancellor. Bunse v. Agee, 47 Mo. 270; Kennedy v. Kennedy, 73 Mo. 78; Hunter v. Hopkins, 12 Mich. 227. (3) The evidence tends very strongly to show that the alleged assignment of the certificates of location was obtained by fraud and false pretenses on the part of Dixon such as would have amply justified a court of equity in setting it aside. Phillips v. Moore, 11 Mo. 600. (4) The only pretense of payment is the claim that Bagnley accepted McCurdy's worthless weigh tickets as payment. This he flatly denies, but even if he did take them it was at the best merely under protest, and in consequence of false representations, operating as a fraud, and there is not a scintilla of evidence that he expressly agreed to take the paper as absolute payment. In such case it is no payment. Kenneger v. Newby, 14 Kas. 164; Pars. Notes and Bills, 85 and 150, et seq. (5) Neither does the court find that it was paid. This is a fatal defect. Jacobs v. Smith, 89 Mo. 673. (6) We think the ten-year statute of limitations is a complete defence in this case. Hunter v. Hunter, 50 Mo. 445. (7) But aside from that the delay of nineteen years is such laches as to preclude a recovery. Stevenson v. Saline County Court, 65 Mo. 429; Landrum v. Bank, 63 Mo. 48. (8) The tax sale was valid and the court had no right to set it aside. The judgment was conclusive as to the amount and validity of the taxes. Wellshear v. Kelley, 69 Mo. 343; Raley v. Guinn, 76 Mo. 272.
Shields & Sennett for respondent.
(1) The patents are our muniments of title and were sufficient to apprise all the world of our title. U. S. Stat. at Large, sec. 2414; Stoddard v. Chambers, 2 Howard, 284; Vatter v. Hinde, 7 Peters, 254; May v. LeClane, 11 Wallace, 232; Mason v. Black, 87 Mo. 329. Notice to the agent is notice to the principal. Meier v. Blume, 80 Mo. 179. (2) The consideration for the assignment of the certificates cannot be attacked. Henderson v. Henderson, 55 Mo. 534; Ames v. Gilmore, 59 Mo. 537. The weigh checks being sold and delivered to Bagnley and the certificates to Dixon, each was protected in his possession of the property thus transferred. Bank v. Bank, 71 Mo. 183. The appellants could not strengthen their title by purchasing at the tax sale. Blackburn on Tax Titles, 400. (4) The tax title should be set aside because fraudulently acquired, and because the price was grossly inadequate. Perry on Trusts, sec. 220; 1 Story's Eq. Jur., sec. 246; Jewett v. Palmer, 7 Johns. Ch. 65; 30 Mo. 148; Railroad v. Brown, 43 Mo. 297; Curd v. Lackland, 49 Mo. 454; 50 Mo. 438; Durfee v. Moran, 57 Mo. 374. And all titles afterwards acquired should be held in trust for the original assignee. 2 Story Eq. Jur., secs. 90, 784; 1 Perry on Trusts, secs. 122-231; Sugden on Vendors, 175; Halsa v. Halsa, 8 Mo. 220; Damschroeder v. Thias, 51 Mo. 100; Key v. Jennings, 66 Mo. 356; Widdicombe v. Childers, 84 Mo. 382. And this applies to purchasers at judicial sales. Roberts v. Mosley, 64 Mo. 507; Baker v. Railroad, 86 Mo. 75. (5) The statute of limitations debars any claim for the purchase price or consideration paid to Bagnley for the land and it cannot be set up to defeat the title in plaintiff. The contract between Dixon and Bagnley was complete and executed when the warehouse receipts or weigh checks were delivered by Dixon to Bagnley and the duplicates assigned and delivered by Bagnley to Dixon. As Dixon said in his deposition, that was the end of it. Bobb v. Bobb, 7 Mo.App. 501; 5 Wait's Act. and Def., p. 578, sec. 33.
Sherwood, J. All concur in all of the paragraphs in the foregoing opinion, except paragraph IV. Ray, J., absent.
Petition in equity to divest the defendants of legal title to certain land in Jasper county, to-wit: The northwest quarter of the northwest quarter and the southwest quarter of the southwest quarter of section 14, and the northwest quarter of the northwest quarter 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 the northwest quarter of the northwest quarter of section 24, township 28, range 33. (2) A patent to Richard Bagnley, dated June 3, 1858, for the northwest quarter of the northwest quarter of section 23, and the southwest quarter of the southwest quarter of section 14, township 28, range 33. (3) Pages 143 and 144, of book 35, of the deed records of Jasper county, as follows:
November 8, 1875.
Also, a precisely similar copy as to the northwest quarter of the northwest quarter of section 23, and the southwest quarter of the southwest quarter 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 defendants excepted at the time.
Plaintiff offered in evidence a quit-claim deed to W. V. Hoge, dated July 29, 1871, recorded September 4, 1871, book V, page 272 conveying the land in controversy, consideration four hundred dollars, 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 four hundred dollars, reciting that it was made to correct a defect in the above mentioned quit-claim 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...
To continue reading
Request your trial