Laster v. Cunningham Land & Improvement Co.

• Decision Date: 02 June 1919
• Docket Number: No. 19912.,19912.
• Citation: 213 S.W. 89
• Court: Missouri Supreme Court
• Parties: LASTER et al. v. CUNNINGHAM LAND & IMPROVEMENT CO. et al.

213 S.W. 89

LASTER et al. v. CUNNINGHAM LAND & IMPROVEMENT CO. et al.

No. 19912.

Supreme Court of Missouri, Division No. 1.

June 2, 1919.

Appeal from Circuit Court, Pemiscot County; H. E. Doerner, Special Judge.

Action to declare and define title to certain lands by Callie Laster and others against the Cunningham Land & Improvement Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Duncan & Brewer, of St. Louis, for appellants.

Arthur L. Oliver and Wm. M. Fitch, both of St. Louis, for respondents.

GRAVES, J.

Action to declare and define title to an undivided one-third interest in certain lands in Pemiscot county. Plaintiffs claim a fee-simple title to this one-third interest through their grandmother, Susan L. Harbert. They rely upon a paper title, averring that a deed made by the grandmother, Susan L. Harbert, was void, because her husband did not join therein. This was a deed to one John Wilks, whose title, if any he got, has passed to defendant Cunningham Land & Improvement Company. Plaintiffs offer to pay into court one-third of $250, with interest thereon at 6 per cent. from the 10th day of April, 1862, the date of the deed from Susan L. Harbert to Wilks. They also ask an accounting for rents and profits. Title to the other two-thirds of the land is admitted,, to be in defendant Cunningham Land & Improvement Company. The defendant Cunningham Land & Improvement Company claims through two distinct lines of paper title, and undertook to prove each. One line of paper title has as one of its links the Susan L. Harbert deed, as indicated above. The other was through patents issued through Pemiscot county. In addition several equitable defenses, as well as the 30-year statute of limitations, were invoked. On trial nisi judgment was for defendants, and plaintiffs have appealed. Other defendants were holders of mortgages or deeds of trust on the land, with other lands. They filed appropriate answers, but the real issues are those made by the answer of the investment company.

Material dates for consideration are: (1) April 10, 1862, the date of the deed from Susan L. Harbert to John Wilks. (2) Susan L. Harbert died in November, 1871, and her husband, William T. Harbert (who failed to join in the deed of 1862), died in the fall of 1871, some time prior to the death of Susan L., the wife. (3) At the death of Susan L. Harbert, in November, 1871, she left a widowed daughter, Mrs. Strickland, from whom, by her first and a second marriage came the plaintiffs in this action. (4) Mrs. Strickland (mother of plaintiffs) was single at the death of her mother, in November, 1871, but married William Henderson in December, 1871. (5) Mrs. Henderson (the mother of plaintiffs) died in 1883. (6) Wm. Henderson, father of all plaintiffs, except one, which one was the child of Strickland, the first husband, died in November, 1907. (7) This suit was brought in 1914.

The evidence tends strongly to show that neither Mrs. Susan L. Harbert nor any of her heirs at law have ever been in the possession or paid any taxes upon this land since the date of the deed in April, 1862; nor was there any claim made to the land by any of them until shortly before the institution of this suit. Other facts, so far as required, can be drawn from the record in the course of the opinion.

I. Defendants urge that plaintiffs relied upon a paper title, both in their proof and pleadings, and this is true. They further urge that, under such condition, it was incumbent upon plaintiff to show a complete paper title (perhaps we had better say legal title) from the government to them. This they say the plaintiffs have failed to do, in that they failed to show a patent from the state to these swamp lands. No such patent appears in plaintiff's line of title, but in lieu thereof the plaintiffs offered in evidence entries from the register's and receiver's books showing that this land was purchased from Pemiscot county June 4, 1855, by one Robert B. Turner, at the price of $200, and was paid for in scrip. These books and the entries therein were duly objected to by defendants, and the point preserved as to their non-admissibility in evidence. They urge that they were not public land records, authorized to be kept by law, and cite us to the cases of Nall v. Conover, 223 Mo. 477, 122 S. W. 1039, Whitman v. Giesing, 224 Mo. 600, 123 S. W. 1052, and McGrew v. Byrd (C. C. A.) 255 Fed. 759. These cases so hold. The writer wrote the opinion of the court in Nall's Case, which was followed by the United States Circuit Court of Appeals for the Eighth Circuit in the McGrew Case, supra. In the latter case the federal court found the condition of our laws just as we found it in Nall's Case, and thus speaks:

"The certified copy, of the register's certificate of purchase by William Pruett was clearly inadmissible, as there is no statute of the state requiring such a record to be kept. The statute provided that one of the original certificates of purchase was to be kept in the register's office, but no provision is made by this or any other statute of the state of Missouri, to which our attention has been called, requiring such certificates to be recorded in a book or record. Nall v. Conover, 223 Mo. 477, 122 S. W. 1037; Whitman v. Giesing, 224 Mo. 600, 123 S. W. 1052; Chamberlayne on Modern Law of Evidence, § 1693."

In a petition for rehearing in the McGrew Case the court wrote a further opinion, in which it discusses the later cases of Mosher v. Bacon, 229 Mo. 338, 129 S. W. 680, and Russ v. Sims, 261 Mo. 27, 169 S. W. 69, relied upon by plaintiffs in this case, and said:

"Counsel now claim that the Missouri cases cited by us have since been overruled by the Supreme Court of that state in Mosher v. Bacon, 229 Mo. 338, 129 S. W. 680, and Russ v. Sims, 261 Mo. 27, 169 S. W. 69. We cannot agree with counsel in this contention. These were equitable actions to quiet title under the statutes of the state of Missouri. In neither of these cases were the cases cited by us in the opinion referred to."

So that the federal court wound up by adhering to the rule in Nall's Case, supra, and this, too, after a full consideration of the Mosher and Russ Cases. I agree with the federal court that the rule announced in the Nail and Whitman Cases is well founded, and that it should have been adhered to by this court; but I do not agree to the proposition, announced by the federal court, that we have not in effect overruled the Nall and Whitman Cases upon the admissibility of these records. The separate opinion of Valliant, J., in the court en banc (229 Mo. loc. cit. 362, 129 S. W. 686), put the matter at rest, but over my dissent. He had the concurrence of four other judges:

"I concur in all that is said in the opinion of my learned Brother Woodson in this case, and there is one other point that I wish to mention. There are certain links in the chain of title to overflowed lands in Missouri of which every one purchasing such land is charged with notice, viz.: That the title in the beginning was in the United States. That the title passed by a public act of Congress to the state of Missouri. That it passed by a public act of the General Assembly to the several counties in which the lands were situated; that is to say, although at the date of the sale of the land in question the state still retained the legal title, yet the state had constituted the counties its agents, authorized to sell on the terms and in the manner prescribed by law, the patent to be issued by the state pursuant to a sale by the county.

"The officers intrusted with these sales in the several counties were required by law to keep a record of their acts. All these public laws the purchaser was bound to take notice of, and he was bound to know what the books and...