Howard County v. Snell

• Court: Missouri Supreme Court
• Writing for the Court: WESTHUES
• Citation: Howard County v. Snell, 161 S.W.2d 238, 349 Mo. 386 (Mo. 1942)
• Decision Date: 13 March 1942
• Docket Number: 37821
• Parties: Howard County, Missouri, v. Leo N. Snell, Appellant

161 S.W.2d 238

349 Mo. 386

Howard County, Missouri, v. Leo N. Snell, Appellant

No. 37821

Supreme Court of Missouri

March 13, 1942

Rehearing Denied May 5, 1942.

Appeal from Howard Circuit Court; Hon. A. R. Hammett Judge. Reversed.

A W. Walker and William H. Sapp for appellant.

(1) The trial court erred in holding that Section 12755, R. S. 1939 provided the only method for the conveyance of island land, and that the instant conveyance was void because in the form of a quitclaim deed instead of a patent. Elliott v. Buffington, 149 Mo. 663. (a) The deed was not void because it failed to contain a recital describing the authority by which the presiding judge acted. Huse v. Ames, 104 Mo. 91; Henry v. Atkinson, 50 Mo. 266. (b) Nor because the acknowledgment failed to strictly comply with Sec. 3416, R. S. 1939, since its meaning was clear and showed that the presiding judge acted in his capacity as such officer. Agan v. Shannon, 103 Mo. 661. (c) Moreover, this being an action between the original parties to the deed the form of the acknowledgment is of no consequence. Vincent v. Means, 207 Mo. 709; Schroeder v. Turpin, 161 S.W. 716. (d) Nor is it void because it was not recorded in "swamp land book" instead of the recorder's office, since this action is between the original parties. Vincent v. Means, 207 Mo. 709; Parsons v. Parsons, 45 Mo. 265. (2) The court erred in holding that the sale of said land was void because the county court and the appellant did not enter into a written contract of the character described in Sec. 3349, R. S. 1939. Said section only applies to executory contracts. Mueller v. Wienbracht, 47 Mo. 468; Missouri State Life v. Early, 13 S.W.2d 1097; Swan v. Stevens, 143 Mo. 384. (3) The court erred in holding the deed void ab initio and insufficient to pass equitable title to the seventy-five-acre tract, because under Sec. 12755, supra (made applicable by Sec. 12740), the presiding judge was empowered to execute deed to an estimated number of acres. A prior survey not being a statutory prerequisite to the making of such deed, it naturally follows that such instrument would not be absolutely void, but at least would be valid until set aside by a proper court action. Secs. 12740, 12755, R. S. 1939; Sexton v. Dunklin County, 246 S.W. 195; Simpson v. Stoddard County, 173 Mo. l. c. 458; Frank v. Goodin, 193 Mo. l. c. 395; Platte County v. Locke, 242 S.W. 666. (a) Since county court had power to make deed to a tract containing an estimated number of acres of matured land, the law relieved the appellant of the duty to examine the preliminary orders of county court to determine whether it had fully discharged its duties to him and the public. Simpson v. Stoddard County, 173 Mo. l. c. 458; State v. Wayne County, 98 Mo. 362. (b) Nor was appellant charged with duty of calculating number of acres contained in the metes and bounds description, or with notice that the county's attorney had included sand bars along with the seventy-five acre tract in his description. Frank v. Goodin, 193 Mo. l. c. 398. (c) The trial court erred in refusing to hold that the respondent was estopped from denying the existence of county court orders authorizing the execution of said deed by (1) its order acknowledging the receipt of the purchase price, and (2) its order of December 7, 1938, acknowledging the sale of said land, and (3) its delay for five years after the recordation of the deed before attacking its validity, and (4) the assessment and acceptance of taxes on said seventy-five acre tract for five years, and (5) the entry of its false order regarding who employed counsel to prosecute this suit. Simpson v. Stoddard County, 173 Mo. l. c. 458; State v. Wayne County, 98 Mo. 362; Whalen v. Buchanan County, 111 S.W.2d l. c. 180; Riley v. Pettis County, 96 Mo. 318. (4) The trial court erroneously held that neither the doctrine of laches or delay, nor the doctrine of estoppel could be invoked against the respondent because it was a municipal corporation. The respondent had the right to sell the land at $ 1.25 per acre, and executed this power by conveying to appellant a tract of land estimated to contain seventy-five acres for a consideration in excess of said statutory amount. The deed not being void as a matter of law said doctrines were applicable. Simpson v. Stoddard County, 173 Mo. l. c. 463; Polk County v. West, 68 Mo. 229; American Stove, etc., v. Butler County, 93 F. 301; Boone County v. Railroad, 139 U.S. 684; Dunklin County v. Choteau, 120 Mo. 577. (a) The respondent is prevented by the doctrine of laches, due to its delay for about five years in repudiating its original estimate, from disputing the accuracy thereof, because during said time the elevation of said land and the relation of the original parties to the transaction had changed, and the appellant had been compelled to take the risk of losing his tract of land by avulsion or imperceptible wasting away. Simpson v. Stoddard County, 173 Mo. l. c. 463; Rollestone v. Natl. Bank, 252 S.W. l. c. 400; Polk County v. West, 68 Mo. 229. (5) The court erred in holding that the metes and bounds description contained in the deed arbitrarily fixes the number of acres conveyed to the appellant, regardless of the intention of the parties and of the fact that the law does not require such lines to be established by a survey to determine the quantity of matured land contained therein. Sec. 12793, R. S. 1939; Frank v. Goodin, 193 Mo. 390; State v. Longfellow, 169 Mo. l. c. 123; Ancona Realty Co. v. Frazier, 41 S.W.2d l. c. 824; Smith v. Wallace, 119 S.W.2d l. c. 818; Gould on Waters (2 Ed.), sec. 45; McBride v. Steinweden, 83 P. 822. (6) This being an action between the original parties the court erred in refusing to correct the ambiguity appearing in the description of the deed so as to vest title to seventy-five acres of matured land in Snell and thereby carry out the manifest intention of the parties. The mistake was mutual. Hoffman v. Rich, 27 Mo. 554; Central Mo. Oil Co. v. St. James, 111 S.W.2d 215; Presnell v. Headley, 141 Mo. 187; Hammond v. Johnston, 93 Mo. 214; Means v. La Vergue, 50 Mo. 343; Woods v. H. & K., 55 Mo. 560; Bollinger County v. McDowell, 99 Mo. l. c. 636; 9 C. J., pp. 152, 171-72. (7) The court erred in holding that however low in elevation, sandy in quality and unstable in character alluvion may be, if it can be walked upon by hunters, or sand removed therefrom, it is susceptible of private ownership, regardless of whether it appears above water at its ordinary stage or is suitable for agriculture or any other purpose. Gould on Waters (2 Ed.), sec. 45; State v. Richardson, 140 La. 329; 45 C. J., pp. 522-3; Frank v. Goodin, 193 Mo. l. c. 395; McBride v. Steinweden, 83 P. 822; St. Louis Ry. Co. v. Ramsey, 53 Ark. 314. (8) There is no evidence whatever to support the erroneous finding of the trial court that the deed was prepared by appellant's agent, or that appellant or agent did so with the wrongful design of defrauding the respondent of its land. Factual: the deed was prepared by the prosecuting attorney from data furnished by county surveyor, and there is no evidence of fraud. Shannon v. Crabtree, 71 S.W.2d 709; Gittings v. Jeffords, 239 S.W. 84; Judd v. Walker, 215 Mo. 312; Maupin v. Provident Life, 75 S.W.2d 593. (9) There is no equity in the respondent's bill or in the evidence to support the allegations thereof. On the contrary, the respondent, prior to the institution of this suit, by an order entered of record, disclaimed title to the land and declared McGavock and others to be the owners thereof. At the instance of the latter persons the respondent later filed this suit with the understanding that McGavock and others should employ and pay the attorneys to prosecute the same, and save it harmless from the duty to pay costs. The respondent was not damaged, its hands are unclean, and it is not acting in good faith. Equity, 21 C. J., secs. 155 and 163, pp. 177-8, 180; 4 A. L. R., p. 49; Walsh v. Walsh, 226 S.W. l. c. 247; Sweeney v. Wilkes-Barre, 62 Pa.Super. Ct. 54; Grocers Journal Co. v. Midland Pub. Co., 127 Mo.App. 356; Kenyon v. Weisberg, 240 F. 536; Shikes v. Gabelnick, 87 A. L. R. 1339; Fehlig v. Busch, 165 Mo. 144; Maxwell v. Louisville Ry. Co., 1 Tenn. Ch. 8; Primm v. White, 162 Mo.App. 594. (a) Lack of clean hands need not be pleaded by defendant. Creamer v. Bervert, 214 Mo. 473; Equity, 21 C. J., sec. 171, p. 186; Wertheimer-Schwartz Shoe Co. v. Wyble, 261 Mo. 675; Houts v. Hellman, 228 Mo. 655.

Irwin, Bushman & Buchanan, Jack H. Denny and Thomas E. Denny for respondent.

(1) The trial court did not err in holding that the purported deed should be set aside because of the form in which it is drawn. (a) It is true that Section 12755, R. S. 1939, does not provide an exclusive method for conveying county swamp or island land, but this purported deed is insufficient to meet the requirements of any applicable statute. Silvers Missouri Titles (2 Ed.), page 17; Josephine Hospital Corp. v Modac Realty Co., 270 S.W. 638; Grafaman Dairy Co. v. Northwestern Bank, 288 S.W. 360; Sturgeon v. Hampton, 88 Mo. l. c. 202; City of Kansas v. Ry. Co., 77 Mo. l. c. 188. (2) The trial court did not err in failing to reform the purported deed because neither the pleadings nor the evidence were sufficient to warrant such action. Emerson-Brantingham Imp. Co. v. Rogers, 229 S.W. l. c. 781; Gamble v. Daugherty, 71 Mo. 599; 53 C. J., p. 1023, note 7; Feeler v. Gholson, 71 S.W.2d l. c. 729; 56 C. J. 1036. (3) The trial court did not err in failing to hold that respondent was estopped to question the validity of the purported deed, because appellant took it with notice of the limitations upon the power and authority of the County Court of Howard County. 3 McQuillin Mun. Corps., sec. 1268, p....