Kline v. Groeschner
| Decision Date | 13 March 1920 |
| Citation | 219 S.W. 648,280 Mo. 599 |
| Parties | JAMES H. KLINE, Heir and Successor to AMOS R. PHILLIPS, v. HERMAN C. GROESCHNER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Court of Common Pleas. -- Hon. John A Snider, Judge.
Affirmed.
E. F Sharp and Oliver & Oliver for appellant.
(1) The act under which the patent to Shapley R. Phillips in 1859 was issued made no provision for its being recorded in the recorder's office. The execution of that patent was not acknowledged before any officer, nor was the execution of it required to be "proven according to law." It was not entitled to registration in the recorder's office. A copy of it, therefore, was not admissible in evidence for any purpose. It is only copies of deeds or conveyances that have been "acknowledged or proven and recorded" according to law that are admissible in evidence under Sec 6310 and 6314, R. S. 1909. Sec. 10381, R. S. 1909; Mosher v. Bacon, 229 Mo. 357; Jones on Law of Real Property and Conveyancing, p. 269; Secs. 2792, 2799, 2800, 2803, R. S. 1909. (2) Nor was a copy of it admissible in evidence under Secs. 2818, 2819, R. S. 1909. It was not "acknowledged or proven, certified and recorded, in the manner prescribed by law." Hammond v. Johnson, 93 Mo. 208; Secs. 2818, 2819, R. S. 1909. (3) The act approved February 27, 1857, made the record in the county clerk's office or an authenticated copy of that record the legal equivalent of the original patent for evidentiary purposes. The patent itself recites the act which authorized its issuance, defines its limitations and the conditions under which title passed to the grantees. Section 3 of that act is mandatory. It provides that the patent shall be recorded "before delivery in the office of the clerk of the courts issuing the same." The same section makes the record on which the patent is recorded, or an authenticated copy from that record, evidence in all courts. So, in the absence of the original patent the record of it in the county clerk's office or an authenticated copy from it was and is the best evidence, and the court erred in admitting a copy of it from the recorder's office. (4) An examination of the swamp land patent record book of New Madrid County discloses the fact that on the 30th day of November, 1859, Shapleigh R. Phillips bought 480 acres of land in section 15, township 22, range 15 -- not 13. That record shows that the certificate of the purchase was number 310, the identical number given the patent recorded in the recorder's office, December 15, 1902. The county court's record of that patent is in a perfect state of preservation. There is no erasure, mutilation, blur, spoliation or other change on it whatsoever. The statute under which this patent was issued makes the record of it in the county clerk's office evidence in all courts. It is, therefore, in the absence of the original patent, the best evidence, and the court erred in admitting an alleged copy of it from the recorder's office made December 15, 1902. The copy in the recorder's office and the copy in the county clerk's office are identical as to date, number of certificate, quantity of land conveyed, and in every other respect except the record in the county clerk's office. The record in the county clerk's office puts the land in range 15, while the copy of the patent from the recorder's office puts it in range 13. The record in the county clerk's office should prevail. Laws 1857, p. 271. (5) Assuming (without admitting it as a fact) that the copy from the recorder's office might, under certain circumstances, be used as evidence, still there was not a sufficient showing made on the part of the plaintiff of the loss or destruction of the original patent as would authorize the introduction of the copy in this case. Barton v. Murrian, 27 Mo. 240; Christy v. Cavanaugh, 45 Mo. 375, 377; Pierce v. Georger, 103 Mo. 540, 543. (6) Under the Act of 1857, it was made the duty of the county clerk to record this patent "before it was delivered." This is shown to have been done at the time and by the officer designated by the statute, and we insist that in the absence of the original patent the record in that office or an authenticated copy of it is the best evidence, if not the only record evidence now available. An examination of the statute will show that no authority is given for the recording of a patent from the county court. Laws 1855, p. 163; Sec. 10390, R. S. 1909; Mosher v. Bacon, 229 Mo. 356. (7) The statute to quiet title was enacted in 1897. Plaintiff did not bring this suit until 1910. The ten-year statute is a complete bar to prosecuting it now. Sec. 3225, R. S. 1909; Powell v. Bowen, 279 Mo. 280. (8) This defendant is estopped and barred by reason of his conduct from asserting title to this land in 1910. Horrell v. Shelton, 261 Mo. 243; Powell v. Bowen, 279 Mo. 280. (9) Phillips' patent was entitled to record in the recorder's office under the statute it was entitled to record therein when made in 1859. If it was entitled to record under the provision of Section 2809 it was entitled to record as soon as made. If it was entitled to record and was not recorded in the recorder's office then it was and is absolutely void as to Luce and to Himmelberger-Luce Land & Lumber Company and their grantee, under the provision of Sec. 2511, R. S. 1909. Phillips v. St. Louis Union Trust Co., 214 Mo. 682; Ladd v. Anderson, 133 Mo. 625; Kelly v. Vandiver, 75 Mo.App. 438.
R. L. Ward and Gallivan & Finch for respondent.
(1) Suit brought under Section 2535 is legal or equitable, depending upon the issues made by the pleadings. Toler v. Edwards, 249 Mo. 159; Lee v. Conran, 213 Mo. 412. The mere pleading of equitable defense without the prayer for affirmative relief will not convert the case from one at law to a suit in equity. Toler v. Edwards, 249 Mo. 159; Shafer v. Deedy, 191 Mo. 388; Withers v. Railroad, 226 Mo. 397; Kaustub v. Miller, 137 Mo. 172. (2) Chilton v. Nichie, 261 Mo. 243; Hayes v. Schall, 229 Mo. 124; Lumber Co. v. McCable, 220 Mo. 182; Terry v. Groves, 258 Mo. 478; Dunnivant v. Cooperage Co., 188 Mo.App. 95; Harrstick v. Gabriel, 200 Mo. 249. (3) The defendant cannot defeat this action on the plea of the one-year Statute of Limitations, that is, a dismissal of the suit first filed and not re-filing it within a year, because that is not a bar to recovery. It is a saving clause to prevent the ten-year Statute of Limitations from running out and that is its only purpose. There is no ten-year Statute of Limitations here to save and it cannot defeat the action. It was made for the benefit of the party against whom the statute of limitations was running and cannot be taken advantage of by the other side. Tate v. Jacobs, 47 Mo.App. 218; Carnes v. Insurance Co., 144 Mo. 417. (4) The county, by its court, only acts as agent for the State in disposing of swamp lands, and, when they have once sold the land and received $ 1.25 an acre for it, that power ends, and the purchaser is not responsible for the errors of the officers or their failure to do their duty in recording the patents or report of sale. Mosher v. Bacon, 229 Mo. 348, 357; Russ v. Sims, 261 Mo. 27.
WHITE, C. Railey and Mozley, CC., concur.
This suit is under Section 2535, Revised Statutes 1909, to determine title to the southwest quarter of Section 15, Township 22, Range 13, in New Madrid County, Missouri. The answer, after a general denial and an averment of title in the defendant, pleads the ten-year Statute of Limitations, the thirty-year Statute of Limitations, laches and estoppel, and facts which it is claimed bar the action by limitation under Section 1900, Revised Statutes 1909. There was a judgment for plaintiff determining title in him, and defendant appealed.
It appears from the record and briefs that both parties to the controversy claim through New Madrid County as the common source of title, the land having been patented by the United States to the State of Missouri in 1856, under the Swamp Land Act of 1850, and by the State of Missouri to New Madrid County in 1857.
Plaintiff claims under Patent No. 310, executed by New Madrid County, November 30, 1859, conveying the east half and the southwest quarter of Section 15, Township 22, Range 13, to Shapleigh R. Phillips. Shapleigh R. Phillips died intestate and on partition proceeding among his heirs the land was set off and adjudged to Amos R. Phillips. Amos R. Phillips died after the institution of this suit, and James Kline, his only heir, succeeded him as plaintiff.
The defendant claims title from two sources: under a commissioner's deed, executed by a commissioner for New Madrid County, November 10, 1881; also under a patent issued by New Madrid County to John Himmelberger, June 29, 1899. These, together with the proceedings leading up to the issuance of the commissioner's deed and patent, were offered in evidence; also mesne conveyances and subsequent proceedings by which, it is claimed, title from both sources was vested in the defendant.
When the plaintiff offered in evidence Patent No. 310 from New Madrid County to Shapleigh R. Phillips, the offer was a certified copy of the patent. This was objected to by the defendant as incompetent on several grounds; because the law required a patent issued by the county to be recorded in the office of the county clerk as a condition precedent to its delivery, and the patent, a copy of which was now offered in evidence, had never been recorded in that office and therefore conveyed no title to the patentee; because the copy was not the best evidence and the original was...
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