Kline v. Groeschner

• Decision Date: 06 January 1920
• Docket Number: No. 20270.,20270.
• Citation: 280 Mo. 599,219 S.W. 648
• Parties: KLINE v. GROESCHNER.
• Court: Missouri Supreme Court

219 S.W. 648

280 Mo. 599

KLINE v. GROESCHNER.

No. 20270.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

Rehearing Denied March 13, 1920.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

Action by James M. Kline, heir and successor to Amos R. Phillips, against Herman C. Groeschner. From a judgment for plaintiff, defendant appeals. Affirmed.

E. F. Sharp, of Marston, and Oliver & Oliver, of Cape Girardeau, fox appellant.

R. L. Ward, of Caruthersville, and Gallivan & Finch, of New Madrid, for respondent.

WHITE, C.

This suit is under section 2535, R. S. 1909, to determine title to the southwest quarter of section 15, township 22, range 13, in New Madrid county, Mo. The answer, after a general denial and an averment of title in the defendant, pleads the 10-year statute of limitations, the 30-year statute of limitations, laches, and estoppel, and facts which it is claimed bar the action by limitation under section 1900, R. S. 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 the 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 not accounted for; and because, in the absence of the original patent, the next best evidence was the record of the patent which is required to be `kept in the county clerk's office. These objections were overruled and the copy was admitted in evidence; around, this alleged erroneous ruling the principal argument and contest of the case revolves.

The defendant then offered in evidence the record in the county clerk's office of patent No. 310, showing that the land covered by it was in section 15, township 22, range 15.

The plaintiff offered the list of swamp lands in New Madrid county which was required to be filed in the office of the clerk of the county court, called the "Swamp Land Abstract of New Madrid County," showing that section 15, township 22, range 15, was not listed as swamp land. Plaintiff further offered evidence to show that the southwest quarter of section 15, township 22, range 15, was entered by Shapleigh R. Phillips in 1836 and was an improved farm, and had always been known as such, and was not therefore, swamp land; and could not have been patented to Shapleigh R. Phillips in 1859 as such.

Murray Phillips was sworn on behalf of plaintiff, and testified that he was the grandson of Shapleigh R. Phillips; said he once saw the original patent No. 310; he found it among his grandfather's papers. He was aware then that "the title was being claimed," and he went to the office of the county clerk and compared the original patent with the record which appeared there of patent No. 310. He found the record in the county clerk's office showed the land in range 15, when the original patent showed it was in range 13, indicating that the 15 was written in the record by mistake, otherwise the record was an exact copy of the original. This original patent was then delivered by him to Amos R. Phillips, and the latter had it recorded in the office of the recorder of deeds. Just when this occurred does not clearly appear from the evidence. The courthouse in New Madrid was burned in 1904-05, and it was inferred that the patent was burned at that time.

The land in controversy was wild land, had never been in cultivation, had never been in the possession of any person, nor fenced, nor any improvements placed on it. The only acts of ownership shown by either party was that it had been visited and looked at, and both parties and their grantors had executed several mortgages and other conveyances affecting it. Some evidence was offered by both parties as to payment of taxes, and this will be noticed in considering the defenses of the statute of limitations.

I. The law which the appellant claims determines the rights of the parties in this case is the act the General Assembly of Missouri approved February 27, 1857, Laws of Missouri 1856, pp. 271, 272, entitled "An act in relation to the disposal of swamp lands." The first section of the act provides that when the county courts of certain counties, including New Madrid, shall be satisfied that full payment has been made for swamp lands under the act authorizing the same, they shall cause patents to be issued to the purchasers. Section 2 of the act provides the form of the patent, the manner of its execution, and that such patent shall convey to the grantee therein named all the title the county has acquired under the several acts of the General Assembly and the act of Congress of 1850. Section 3 of the act is as follows:

"3. Such patent shall be recorded before delivery in the office of the clerk of the courts issuing the same, and such patent, and the record thereof, by such clerk, or by any other officer authorized to record deeds and other instruments of writing, and copies of such records, duly authenticated, shall be received in evidence in all courts, and other places, in the same manner, and with like effect, and may be used as fully for all purposes as patents for lands issued by the United States, or deeds duly proven or acknowledged, or the record of the same are received, or can be used in `this state, and shall at all times, and in all courts, and other places, be received as prima facie evidence of title to the lands and real estate therein named."

Section 4 is as follows:

"It shall be the duty of the Governor of this state to cause to be furnished to each of said counties, as soon as practicable, a list of all the swamp lands in the county, which list shall be recorded in the office of the recorder of deeds, and filed in the office of the clerk of the county court and shall be a public record, and copies of said list, or of the record thereof, shall be prima facie evidence that the lands therein described are lands granted by Congress to this state as aforesaid, and by said state donated to the several counties by the said several acts, and shall be received in evidence as such, in all courts and other places."

The appellant claims that, under section 3, patent No. 310 was of no force or validity until recorded in the county clerk's office; that it was not required to be recorded anywhere else, and the only evidence of the existence of a patent and its terms would be either the original patent, or the record of the same, or a copy of such record as it appears in the office of the clerk of the county court; that therefore the copy of patent No. 310 offered by the plaintiff was incompetent a does not appear by whom this copy was made and certified. The questions thus presented to the court were whether the loss of the original was accounted for; whether the purported copy was a correct copy; and whether the record in the county clerk's office was better evidence of the contents of the original patent than any other' copy however proven.

It is conceded that the patent was not required to be recorded in the recorder's office. It was held by this court in case of Mosher v. Bacon, 229 Mo. 338, 129 S. W. 680, where land belonging to a county is sold by the county, and paid for, and the purchaser receives a certificate of purchase, thereafter the county is powerless to convey it to another person. The purchaser receiving the certificate of purchase would have an equitable title which would be good against all the world. It was further decided in that case (loc. cit. 349 of 229 Mo., 129 S. W. 683) that a purchaser has no control over the land office, nor over the state officers, whose duty it is to issue a patent and conform to the requirements of the law, and the failure of such officer to do his duty in that respect would not affect a purchaser's right or title.

The objection that the loss of the original patent was not accounted for is not well taken. It was shown that the owner of the patent, Amos R. Phillips, was dead. Murray Phillips testified that both he and Mr. Kline, the plaintiff, searched for the patent and were unable to find it; that he made the search at the request of Mr. Kline, and the last time he saw it it was in the recorder's office; that he was adviser and attorney of Amos R. Phillips; that the courthouse burned, probably while the patent was lodged in the...