Jasper Cnty. v. Wadlow

• Citation: 82 Mo. 172
• Parties: JASPER COUNTY v. WADLOW et al., Appellants.
• Decision Date: 30 April 1884
• Court: United States State Supreme Court of Missouri

82 Mo. 172

JASPER COUNTY

v.WADLOW et al., Appellants.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Lawrence Circuit Court.--HON. M. G. MCGREGOR, Judge.

REVERSED.

C. H. Krum and William Thompson for appellants.

Appellants have a fee simple title to the land in controversy. 1st, Under the statute of limitations; 2nd, Under sheriff's deed for taxes, dated March 29th, 1879. The certified copy of the report of the Secretary to the Register of Lands of Missouri, and the patent from the State to Jasper county was not a sufficient showing of legal title in the county to entitle it to recover. Stephenson v. Stephenson, 71 Mo. 127; U. S. Rev. Stat., § 2479 to § 2481; Ib., § 2484; Funkhouser v. Peck, 67 Mo. 31. The tax deed under which appellants claim title entitled them to a judgment. DeTreville v. Small, 98 U. S.; Welshear v. Kelley, 69 Mo. 343; Raley v. Guinn, 76 Mo. 263; Ewart v. Davis, 76 Mo. 129; R. S., § 6839; 2 Wag. Stat., p. 1206, § 219. The judgment against T. C. H. and Lucy W. Smith was rendered without notice, is, therefore, void, and may be attacked collaterally. Napton v. Leaton, 71 Mo. 366, 367; R. S., §§ 3494, 3500; Bobb v. Woodward, 42 Mo. 482; Higgins v. Peltzer, 49 Mo. 152; Cravens v. Moore, 61 Mo. 178.

Phelps & Brown and T. B. Haughawout for respondent

The patent from the state vested in plaintiff the legal title to the land. R. S. § 6204. The objection to the proceeding to enforce the vendor's lien that the order of publication was defective, is not available here. The judgment recites that the defendant had been duly notified, and is conclusive upon the parties and cannot be set aside in a collateral proceeding. Bradley v. Ramey, 67 Mo. 280; Kane v. McCowan, 55 Mo. 181. The order of publication was sufficient; it notified the defendant to appear at the “next regular term of the court,” and the law fixed the time for holding the court of which the defendant was bound to take notice when the order of publication was silent as to commencement of the term. The purchase money being due and unpaid, the plaintiff could maintain ejectment to recover possession of the premises against Lucy W. Smith, the vendee, or any person claiming under her, even if her equity had not been foreclosed, and the action could only be defeated by offering to pay for the lands. Sedgwick & Wait on Trial of Title to Land, §§ 306, 307; Home Mfc. Co. v. Gough, 2 Brad. (Ill.) 477; Hill v. Winn, 60 Ga. 339. The defendant claiming under Lucy W. Smith, the vendee of plaintiff, he cannot dispute the title of plaintiff. Sedgwick & Wait on Trial of Title to Land, § 317; Pershing v. Canfield, 70 Mo. 140; Lesher v. Sherwin, 86 Ill., 420; Lenbury v. Stewart, 22 Ala. 207; Jackson v. Bard, 4 John. (N. Y.) 230; Harvey v. Morris, 63 Mo. 475. The defendant acquired no interest in the land by his purchase at the tax sale. At the time the tax suit was brought the interest of Lucy W. Smith having been purchased and owned by Jasper county, the land was not subject to taxation. R. S. § 6659. If, however, it should be held that the land was subject to taxation, still Jasper county, not being a party to the tax suit, her interest in the land could not be sold and did not pass by the tax sale. Only the parties to the suit can be affected by the judgment and sale thereunder.

NORTON, J.

This is an action of ejectment commenced in the circuit court of Jasper county and taken by change of venue to Lawrence county. The suit was brought against James M. and E. D. Wadlow for the recovery of the possession of 280 acres of land in the petition described. Wm. Thompson was on his own application made defendant as the landlord of defendant Wadlow. The petition is in the usual form; the answer, after admitting that defendant was in possession of the premises, denies all the other allegations of the petition and sets up adverse possession for more than ten years before the suit was brought. The reply put in issue the new matter. On the trial plaintiff obtained judgment from which defendants appealed to this court.

On the trial, plaintiff, in support of her title, put in evidence a certified copy of the report of the Secretary of the Interior to the Register of Lands of Missouri confirming the selection of the lands as swamp land. Plaintiff next put in evidence a patent from the State of Missouri conveying to Jasper county the land in dispute. Plaintiff then offered S. G. Franklin as a witness who testified that about 35 acres of the land occupied by defendant, Wadlow, was in cultivation. This witness, on cross-examination, stated that the land sued for “was not wet, swampy or overflowed land; that it was high rolling prairie; that the entire section was high, dry, rolling prairie;” other evidence was offered as to the rental value and plaintiff rested. Whereupon defendant asked the court to give an instruction that, “upon the evidence plaintiff could not recover,” which the court refused to give, and this action is complained of as being erroneous.

The court did not err in this ruling. The selection of the land in controversy, as swamp land, having been confirmed to the State by the report of the Secretary of the Interior, and a patent for the same having issued from the State to Jasper county, plaintiff was invested with a complete title, behind which defendant could not go, and show by parol or otherwise, that the land, in fact, was not swamp land, and that the Secretary of the Interior had made a mistake in confirming the selection of the same as swamp land. Funkhouser v. Peck, 67 Mo. 19; Stephenson v. Stephenson, 71 Mo. 127. Besides this it is expressly provided in Revised Statute, section 6204 that all patents issued, as required by that act, shall be received and read as evidence in all courts in this State as prima facie evidence of title in the counties where overflowed or swamp land lies.

The defendant then put in evidence an order of the county court of Jasper county made on the 11th of February, 1858, authorizing the sale of the swamp lands of the county to one George E. Ward, including the land in controversy. This order authorized the sale of said land on twelve months' time, the purchaser to give his note with security for the purchase price, and contained the further provision that the purchaser should be entitled to a deed from the county when the purchase price was paid. Defendant, also, put in evidence an order of said court made on the 27th of February, 1858, approving the report of sale made by the commissioner in conformity with the said order of the 11th of February, 1858, and directing the commissioner to make deeds to the purchasers of the lands whenever the purchase money was fully paid. The defendant then put in evidence various deeds which had the effect of passing to one Lucy W. Smith whatever interest said Ward took in the lands by virtue of his purchase from the county, which was nothing more than a right to a deed from Jasper county when the purchase money was paid.

It, also, appeared in evidenee that Jasper county had, in 1873, contracted the land in controversy with other land to said Lucy W. Smith, taking her note for the unpaid purchase money in the sum of $2,005.75. Defendant, also, put in evidence a tax deed conveying the interest of Lucy W. Smith to E. G. Thompson, and also a deed from the heirs of E. G. Thompson to defendant, William Thompson, it having been shown that said E. G. Thompson had died. Said tax deed was dated the 28th of March, 1879. Defendant then read in evidence the record of a judgment rendered in October, 1878, in a suit by the State ex rel Wakefield, collector of Jasper county, v. T. C. H. Smith and Lucy W. Smith for the enforcement of the State's lien for delinquent taxes for the years 1875 and 1876. Defendant, also, put in evidence a promissory note of said Lucy W. Smith to Jasper county and order of publication as to Lucy W. Smith and T. C. H. Smith in a suit instituted by Jasper county against said Smiths to enforce the lien of the county upon said land for the payment of the purchase money. It was then admitted that the land was neither swampy, wet or overflowed, and witness, Mickey, testified that she had lived on the land for more than ten years before this suit was brought as the tenant of said Smith, and then as the tenant of said Thompsons.

In rebuttal, plaintiff put in evidence the judgment in the case of Jasper county v. T. C. H. and Lucy Smith, foreclosing the vendor's lien upon the land in suit, and also a sheriff's deed, made in pursuance of an execution which issued upon the...