Kennett v. Plummer

• Decision Date: 31 January 1859
• Citation: 28 Mo. 142
• Parties: KENNETT et al., Appellants, v. PLUMMER et al., Respondents.
• Court: Missouri Supreme Court

28 Mo. 142

KENNETT et al., Appellants,

v.PLUMMER et al., Respondents.

Supreme Court of Missouri.

January Term, 1859.

1. Whatever may be the nature of the title acquired by the state of Missouri by virtue of the act of Congress of June 10, 1852, granting lands in aid of the construction of certain railroads--whether the state acquired the fee simple title to the lands clothed in a political trust for the execution of which the faith of the state was pledged by the acceptance of the grant, or whether the act of Congress created an estate upon condition subsequent--a mere trespasser can not defend against a grantee of the estate by invoking a supposed right of the United States to enter for condition broken.

2. Until entry by a mortgagee for condition broken, or until foreclosure, the mortgagor is the owner of the mortgaged estate and may lease the same, or otherwise deal with it as owner.

Appeal from Newton Circuit Court.

This was an action, under the act to prevent certain trespasses (R. C. 1855, p. 1552), to recover damages for an alleged carrying away by defendants of a large amount of lead ore from the land of plaintiffs. The land upon which the alleged trespasses were committed is section six, township twenty-five, range thirty west, situate in Newton county. Plaintiffs claim said land by virtue of a lease from the Pacific Railroad, dated June 11, 1857, for a term of ten years. The petition sets forth the title of the plaintiffs as follows: 1st, act of Congress of June 10, 1852, entitled “An act granting the right of way to the state of Missouri, and a portion of the public lands, to aid in the construction of certain railroads in said state;” 2d, an act of the general assembly of the state of Missouri, approved December 25, 1852, entitled “An act to accept a grant of land made to the state of Missouri by the Congress of the United States to aid in the construction of certain railroads in this state and to apply a portion thereof to the Pacific Railroad,” (Sess. Acts, 1853, p. 10); 3d, an act of Congress of August 3, 1854, entitled “An act to vest in the several states and territories the title in fee simple of the lands which have been or may be certified to them;” 4th, the approved list of the commissioner of the General Land office; 5th, the lease above mentioned from the Pacific Railroad to plaintiffs. Plaintiffs also alleged the due incorporation of Pacific Railroad; that the requirements of the laws in regard to survey, location of road, selection of lands, &c., had been complied with; also, that under the act of December 10, 1855 (Sess. Acts, 1855, Adj. Sess. p. 472), a mortgage had been executed by plaintiffs to the treasurer of the state of Missouri, embracing the land upon which the trespass was committed.

The defendants demurred to this petition. The court sustained the demurrer.

Stevenson, for appellants.

I. Appellants were the legal owners of the land by virtue of their lease, and as such had a right to sue respondents for the trespass complained of. The title of the Pacific Railroad is the title of the appellants, and under that title the Pacific Railroad had a clear right of action. (Tuck. Com. 86, 88; Lomax Dig. 332.) A less estate than a fee simple known as a qualified fee carries with it, until the estate is defeated, the same rights and privileges over the estate as if it were a fee simple. (Lomax Dig. 23.) Until the consideration is broken the estate is an estate of freehold. (Tuck. Comm. 89.) If there was any doubt about the title of the railroad to the lands in controversy, the act of Congress of August 3d, 1854, confirms in the state a fee simple. The state having granted the lands to the Pacific Railroad on the conditions contained in the act of Congress, the act of August 3, 1854, enured to the benefit of Pacific Railroad, the donation by the state to the Pacific Railroad being alone hampered by the original restrictions imposed by Congress. No one but the donor and the privies of the donor can take advantage of a defeasance of the estate; and whether the estate is conditional or not, it is not to be taken advantage of by defendants. (Tuck. Comm. 88, 90; Lomax's Dig. 333, 363 & 364; 4 Kent, Comm. 131.) The statutory trespass is given to the owner of the land, and it is not essential to aver or prove any thing beyond the ownership of the land. The acts of Congress and the legislature of Missouri only direct the manner in which the lands may be sold, and in nowise limit the rights of the Pacific Railroad to the land granted so as in anywise to debar the Pacific Railroad from all rights incident to the estate granted. The execution of the mortgage does not divest the mortgagor of his ownership of the property until after forfeiture and foreclosure. (1 Hilliard on Mort. 137-9.) A mortgagor may make a lease and it is good against all the world but the mortgagee. (Lomax Dig. p. 432; Tuck. Com. 107.) The intestate of a mortgagee is only in the nature of a security; the...