In re Goode

• Decision Date: 23 January 1877
• Citation: 3 Mo.App. 226
• Parties: In re FANNY W. GOODE, Appellant.
• Court: Missouri Court of Appeals

3 Mo.App. 226

In re FANNY W. GOODE, Appellant.

Court of Appeals of Missouri, St. Louis.

January 23, 1877

An act approved March 28, 1873, entitled " An act to establish evidence of title to real property, and to restore the records of the same, and to provide for the recording of deeds," is unconstitutional and void in so far as it provides for proceedings which are to culminate in a final judgment; being in conflict with section 32, article 4, of Missouri Constitution of 1865.

APPEAL from St. Louis Circuit Court.

Affirmed.

E. P Johnson, for appellant, cited: City v. Tiefel, 42 Mo. 578; The State v. Matthews, 44 Mo. 523; The State v. Miller, 45 Mo. 495; Ensworth v. Allen 46 Mo. 454; Fletcher v. Peck, 6 Cranch 87; Dartmouth College v. Woodward, 4 Wheat. 625; The State v. Cape Girardeau & State Line R. R. Co., 48 Mo 468; The State v. Clark, 54 Mo. 17; Shewalter v. Pimer, 55 Mo. 218; Orr v. How, 55 Mo. 328; McPike v. Allmon, 51 Mo. 551; Webster v. Blount, 39 Mo. 500; Vasques v. Richardson, 19 Mo. 96; 1 Ter. Laws Mo. 47, sec. 8, p. 138, sec. 56, p. 423, sec. 2; Acts 1815, p. 414, sec. 58; Springer v. McSpadden, 49 Mo. 299.

Cline, Jamison & Day, for respondents, cited: Const. Mo., art 4, sec. 32; The State v. Saline County Court, 51 Mo. 377; Fowle v. City of St. Joseph, 37 Mo. 228; The People v. Hadden, 3 Denio 226; Sedgw. on Stat. & Const. Law, 2d ed., 271-275; Benjamin v. Benjamin, 1 Seld. 383; Acts 1873, p. 48, sec. 13; Jones v. Carter, 56 Mo. 403; Long v. Higginbotham, 56 Mo. 245; Springer v. McSpadden, 49 Mo. 299; 1 Ter. Laws Mo. 348, secs. 8, 9, p. 350, sec. 18, p. 414, sec. 58, p. 423, sec. 2, p. 444, sec. 3; Geyer's Dig. 49, 119, 122, 128, 404; Speck v. Wohlien et al., 22 Mo. 314; Wolff & Speck v. Wohlien, 33 Mo. 124; Bishop v. Schnaider, 46 Mo. 472; Musick v. Barney, 49 Mo. 458; Joeckel v. Easton, 11 Mo. 125; Bennett v. Hollman, 44 Miss. 323; The State v. Auditor, 41 Mo. 25; Routsong v. Wolf, 35 Mo. 174.

OPINION

LEWIS P. J.

This is a proceeding instituted under " An act to establish evidence of title to real property, and to restore the records of the same, and to provide for the recording of deeds," approved March 28, 1873. The petitioner, substantially following the terms of the act, sets out a claim of title under which she claims the real estate described, embracing a number of deeds, some of which, she alleges, have been lost or destroyed. Her prayer is as follows:

" Wherefore your petitioner prays the honorable court to hear and determine this petition, and adjudge, determine, and decree that the title to the said undivided one-twenty-seventh part of said survey of land belongs to your petitioner, and that the same be vested in her in fee-simple absolute."

The 1st section of the act, with great particularity and much verbiage, provides, in effect, that any person claiming an estate or interest in any lands, whose deeds have been lost or destroyed, may apply by petition to the Circuit Court of the proper county, setting forth a description of such lands, the nature of his interest therein, and a description of the lost deeds, by dates, contents, and parties therein. He shall also set forth the manner in which his deeds were lost or destroyed, and may pray the court to " hear and make a record of such evidence as the said petitioner or petitioners shall produce, touching or concerning his, her, or their alleged estate or interest in and to said lands described in his or their petition." Nothing here follows indicating that the court is to make any such record as is prayed for. But, in lieu thereof, " upon hearing such testimony and proof of title as is produced by the said petitioner or petitioners, * * * the estate or interest of the said petitioner shall be adjudged and determined by the said court, according to the evidence adduced," etc.

The 2d section provides for notices by newspaper publication, addressed to " " all whom it may concern," and by service on such persons as may be in possession of the lands, and for a submission of proofs at the next term of the court.

The 3d section allows any person claiming adverse interest in the lands to appear and answer the petition; when, " if upon a final hearing * * * the court shall find the allegations of said petition to be substantially proved, it shall order a decree * * * adjudging said petitioner or petitioners to be seized of an interest and estate in said lands, according to the allegation and prayer of said petitioner or petitioners, which said decree shall be conclusive against all persons and parties who may appear and answer in said cause, or who shall have been personally served with notice, and shall be prima-facie evidence against all other persons claiming said premises, from the time of entering of the said decree."

By the 4th section it is provided that any person claiming an interest in the lands adverse to the decree, who has not been personally notified, and has not appeared and answered, may, upon twenty days' notice, move to open the proceedings; whereupon, proofs shall be heard, and " the court shall adjudge the ownership and title of said lands according to the evidence adduced," etc. If no such motion be made within two years, the decree becomes conclusive against all persons whomsoever, except infants, lunatics, and married women, who may appear within two years after a removal of disability, etc.

The 5th section provides for a recording of the decree, and makes a certified copy evidence, etc.

The 6th section requires the proceedings to conform, " as near as may be, to the rules and practice in civil cases."

The 7th section authorizes a second recording of any deeds, etc., when the first record has been lost or destroyed.

From this synopsis of the entire act two things are apparent First, that, in all the judicial proceedings contemplated, the only possible result is a judgment or decree of title; which judgment is to be prima facie conclusive against some persons, absolutely conclusive against some others, and, in certain conditions, conclusive against all the world. Second, that in none of these proceedings is any action to be taken for " establishing...