Missouri And Southwestern Land Co. v. Quinn

• Citation: 73 S.W. 184,172 Mo. 563
• Parties: MISSOURI AND SOUTHWESTERN LAND COMPANY, Appellant, v. QUINN
• Decision Date: 17 March 1903
• Court: United States State Supreme Court of Missouri

73 S.W. 184

172 Mo. 563

MISSOURI AND SOUTHWESTERN LAND COMPANY, Appellant, v. QUINN

Supreme Court of Missouri, Second Division

March 17, 1903

Appeal from Butler Circuit Court. -- Hon. J. L. Fort, Judge.

Affirmed.

E. R Lentz for appellant.

(1) When Butler county, by its officers and agents, sold the lots in controversy to Poplin, accepted his notes in payment of the purchase money, caused suit to be brought on said notes obtained a decree foreclosing Poplin's equity of redemption and ordering the lots sold for the payment of the debt, caused a special execution to be levied upon said lots and the lots to be sold thereunder, and appropriated the purchase money thereof, it renounced all claim to said lots, and estopped itself from thereafter claiming any title thereto. Austin v. Loring, 63 Mo. 23; Wilcoxen v. Osborn, 77 Mo. 631; Chouteau v. Goddin, 39 Mo. 250; Pockman v. Meatt, 49 Mo. 398; Chase v. Williams, 74 Mo. 437; Stroble v. Smith, 8 Watts 280; Com. v. Sherman, 6 Har. 343; Smith v. Worden, 7 Ill. 424. (2) By the sale to Poplin, by the decree of foreclosure, and sale thereunder to Bradley, and by the payment by him of the purchase money therefor, Bradley became invested with the full equitable title to the said lots, and the county thereafter held the legal title as trustee for him and those claiming under him. Ten Eyck v. Simpson, 1 Sandf. Ch. 245; Champion v. Brown, 6 Johns. Ch. 400; Goveneur v. Lynch, 2 Paige Ch. 300; Widdicombe v. Childers, 84 Mo. 394; Perry on Trusts (2 Ed.), sec. 231; Ibid, sec. 236. (3) Defendant Quinn admits that he had full knowledge of all these facts before he received his deeds from the county for these lots. He therefore stands precisely in the same relation as Butler county would if it had not conveyed to him. Austin v. Loring, 63 Mo. 22. (4) Quinn was a trustee for the plaintiff, in possession of the trust property -- he must account for all rents and profits coming into his hands. The burden of accounting for the actual profits rests upon him; he has not furnished evidence of them; hence he invites the application of the rule that will most nearly approximate the actual gains. Perry on Trusts (2 Ed.), sec. 471; Cruce v. Cruce, 81 Mo. 684; Pomeroy v. Benton, 77 Mo. 84; Bobb v. Bobb, 89 Mo. 422. (5) The case of Missouri and Southwestern Land Company v. L. F. Quinn and Butler County was begun in 1892, and continued on the docket until July, 1898, when a voluntary nonsuit was suffered. Plaintiff had one year from that time in which to commence another suit. The first suit was begun within ten years, and this suit begun before the other was dismissed; therefore there is nothing in defendant's plea of the statute of limitations. R. S. 1899, sec. 4285.

L. D. Grove for respondent.

(1) Estoppel in pais or by conduct can never be invoked against a county by acts of its officers. Heidelberg v. St. Francois Co., 100 Mo. 76; Johnston v. Dist., 67 Mo. 319; Maupin v. County, 67 Mo. 327; Sturgeon v. Hampton, 88 Mo. 203. (2) By the statute, title can only pass by some act of the county-seat commissioner. His powers under that act can not be delegated to any other officer; yet the matters here claimed to estop by conduct are acts of other officers. State ex rel. v. Murphy, 134 Mo. 575; Mathews v. Alexander, 68 Mo. 119; 15 Am. and Eng. Ency. of Law, 1045. (3) Laches could have been well urged at the commencement of the suit in 1892; it was then seven years stale. (4) The statute of limitation pleaded had barred this case. Plaintiff claims relief from this bar by the provisions of section 4285, Revised Statutes 1899; but this statute does not in terms permit suits to be commenced from time to time, in contemplation of suffering a voluntary nonsuit after the commencement of a new suit. This suit was commenced before dismissal of the first, and plaintiff is not within the saving terms of that statute, either by his pleadings or his proof. The rulings of this court in the cases of Briant v. Fudge, 63 Mo. 489, and Wood v. Nortman, 85 Mo. 298, do not apply in this case, as in those cases the nonsuits were taken after notice given that nonsuits would be taken, and which notices were given before the commencement of the second suit. (5) Green L. Poplin had no title which was liable to sale under execution at which Bradley bought, of all of which Bradley had notice. Block v. Morrison, 112 Mo. 351; McIlvaney v. Smith, 42 Mo. 45.

OPINION

FOX, J.

This suit was commenced by filing petition in the Butler Circuit Court on July 23, 1898. It is necessary to a clear understanding of the questions involved in this case, to quote the pleadings, which is done. Omitting the captions, they are as follows:

Petition.

"Plaintiff says that it is a corporation duly organized under the laws of the State of Missouri and doing business in the city of Poplar Bluff, Missouri.

"Plaintiff for cause of action, says, that heretofore, to-wit, on or about the 12th day of February, A. D. 1871, the defendant, the County of Butler, being the owner of the fee simple title to lots one hundred and ten and one hundred and twelve, in the original town of Poplar Bluff, Missouri, sold both of the said lots to one Green L. Poplin; and on or about the same day the said Green L. Poplin executed and delivered to the county of Butler his certain promissory note for the sum of one hundred dollars, with John R. Poplin and John S. Varner as sureties thereon, which said promissory note was given for a part of the purchase money for said lot one hundred and ten above described. And also, on or about the same date, the said Green L. Poplin made, executed and delivered to the said county of Butler his certain other promissory note for the sum of one hundred dollars, with John R. Poplin and John S. Varner sureties thereon, which said note was given for a part of the purchase money for the said lot one hundred and twelve as above described and set out. Copies of both of which said notes are herewith filed, marked exhibits 'A' and 'B,' and prayed to be made a part of this petition.

"That afterwards, to-wit, at the May term, 1879, of the circuit court of said county, the said county of Butler proceeded to and did obtain a judgment on the said first-mentioned promissory note, and also a decree foreclosing the lien of the county on the said lot, for the unpaid balance of the purchase money due them from the said Green L. Poplin to the county of Butler; which said judgment was, in conformity with the prayer of said petition, made a special lien on said lot one hundred and ten, and special execution was ordered, to sell said lot to pay said judgment, and that under said judgment and special execution the said lot was sold, and at the sheriff's sale was purchased by Theophilus H. Bradley; and the sheriff of said county, in pursuance to said judgment and special execution, and the sale thereunder made, executed and delivered to the said Theophilus H. Bradley a deed to the said lot. A copy of which sheriff's deed is hereby filed, marked exhibit 'C,' and asked to be taken as a part of this petition.

"And afterwards, to-wit, at the May term, A. D. 1879, the said county of Butler obtained a judgment on the second note above mentioned, and a decree of foreclosure of the said lien of the said county, for the unpaid balance of the purchase money due from the said Green L. Poplin to the said county of Butler; and by the said judgment the same was ordered to be a lien on said lot number one hundred and twelve, and special execution was ordered to sell said lot to satisfy said judgment, and in pursuance to said judgment and special execution, the then sheriff of Butler county proceeded to levy on and sell said last mentioned lot, and did sell the same, and Theophilus H. Bradley was the purchaser thereof, at said sale; and the said sheriff made, executed and delivered to said Theophilus H. Bradley a deed, a copy of which is herewith filed, marked exhibit 'D,' and made a part of this petition, conveying to him the said lot one hundred and twelve, in pursuance of said sale made under said special execution.

"That afterwards, to-wit, on the 18th day of April, A. D. 1881, the said Theophilus H. Bradley sold said lots 110 and 112 before described, to W. A. Kendall, and by his warranty deed of that date conveyed the said lots to the said W. A. Kendall, for and in consideration of two hundred dollars to him paid; a copy of which said deed is herewith filed, marked exhibit 'E,' and prayed to be taken as a part of this petition.

"That afterwards, to-wit, on the third day of July, A. D. 1883, the said W. A. Kendall sold said lots to the plaintiff herein, and the said W. A. Kendall conveyed the same, together with a large amount of other real estate, by his warranty deed of that date, to the Missouri and Southwestern Land Company, the plaintiff, a copy of which conveyance is herewith filed, marked exhibit 'F,' and made a part of this petition. And from that time hitherto the said company has owned said lands.

"That all said conveyances above herein set out were duly placed on record on the land record of said county. That plaintiff has since that time paid the taxes, both state and county, on the same. That by reason of the said sale of the said lots to the said Green L. Poplin, as aforesaid, and by reason of the said action by the said county of Butler, in bringing its said suit in the said circuit court against the said Green L Poplin, for the foreclosure of its lien upon the said lots for the unpaid balance of the purchase money of the said lots due to it from the said Green L. Poplin, and by reason of the said decree of foreclosure and special execution issued thereon, and the sale thereunder by the sheriff of the said county, and by reason of the said purchase...