Mosher v. Bacon

• Decision Date: 13 May 1910
• Citation: 229 Mo. 338,129 S.W. 680
• Parties: MOSHER v. BACON.
• Court: Missouri Supreme Court

129 S.W. 680

229 Mo. 338

MOSHER v. BACON.

Supreme Court of Missouri.

May 13, 1910.

Rehearing Denied June 21, 1910.

PUBLIC LANDS (§ 61)—SWAMP LANDS—SALE BY COUNTY—EQUITABLE TITLE.

Under Act Cong. Sept. 28, 1850, c. 84, 9 Stat. 519, donating swamp lands to the state, under Act Feb. 23, 1853 (Laws 1852-53, p. 108), donating such lands to the counties in which they lay, and under Act March 1, 1855 (Laws 1854-55, p. 154), providing for sales of the lands, and requiring the county register and the receiver to certify the same to the state register whose duty it is to issue patents to the purchasers, plaintiff's predecessor acquired equitable title to swamp lands by purchasing from the register and paying the price to the receiver, precluding a resale or issuance of a patent to any one other than him or his grantees, though through official neglect no patent was issued to him.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Mattie B. Mosher against Ernest Bacon. From a judgment for defendant, plaintiff appeals. Reversed, with directions.

The facts of this case are few, and in so far as they are material, as I view it, are undisputed. They are as follows, as stated by counsel for appellant:

"This suit is brought under section 650 to quiet title to the S. ½ of lot No. 1 of the S. W. ¼ (sometimes described as S. E. ¼ of S. W. ¼) of section 7, township 22 N., of range 5 E., Butler county, and containing 40 acres. The petition further pleaded actual notice of appellant's adverse claim of ownership by respondent at the time he obtained a commissioner's deed from Butler county to the land involved in suit, and also equitable estoppel. The answer set up claim of ownership in respondent, and, further, a general denial. The land in suit is what is known as `Swamp Land,' and was donated to the state of Missouri by an act of Congress dated September 28, 1850. The land in suit is located on the east side of what is known as Little Black river, and was prior to January 21, 1864, located in Ripley county. Since said date the land has been located in Butler county. On October 14, 1858, the land in suit, together with other lands, was sold to one George W. York by the register of lands of Ripley county. Said York paid for said land in full on said date, and received a certificate of purchase from said register, and also a receipt from the receiver of said county showing full and complete payment for the same. An entry in the Ripley county register of lands sold at private sale kept by the county clerk of said county who by law was made ex officio register of the swamp lands of said county was duly entered, showing said sale to said York, and the full payment of same. On October 15, 1858, said York sold and conveyed by general warranty deed the land in suit and certain other lands to one Peter M. Brown, and said deed was duly filed and recorded in the deed records of Ripley county on said date. On February 21, 1878, a certified copy of said deed from said York to said Brown was duly filed and recorded in the deed records of Butler county. Said Brown died seised of the land in suit, together with other lands located in both Butler and Ripley counties, leaving surviving him James S. Brown and Francis H. Brown. The testimony shows: That said Francis H. Brown thereafter died, and his interest in said lands descended to his brother, said James S. Brown. Said James S. Brown thereafter sold and conveyed the land in suit, together with other lands, to the appellant Mattie B. Mosher, Fannie C. Jerome, and Doris Brown. That thereafter said Fannie C. Jerome and Doris Brown sold and conveyed their interest in the land in suit to appellant. All of the various named deeds of conveyance were soon after the making of the same duly recorded in the deed records of Butler county. On November 17, 1888, the land in suit was sold to one I. M. Davidson by Butler county for taxes for the year 1883. Soon thereafter said Davidson sold and conveyed all of his title under the sheriff's deed to said James S. and Francis Brown, heirs of said Peter M. Brown, deceased. The sheriff's deed to said Davidson and the deed from said Davidson to the said Browns were duly recorded in the deed records of Butler county. The respondent, Bacon, claims title to the land in suit through purchase and sale from Butler county, dated January 23, 1902, he having received a commissioner's deed from the county. The proof shows that respondent at the date of the pretended purchase of the land in suit from Butler county was engaged in the business of buying and selling real estate in Butler county, and was the owner of a set of abstract books to all the lands in said county. The trial court held that the swamp land record of sales kept by the county clerk, who was ex officio register of lands in Ripley county, at the date of the sale to said York, did not impart notice to respondent of the sale of the land in suit to said York, and, further, that actual notice of all of the recorded deeds and sheriff's sale by Butler county was not notice to respondent of appellant's equitable claim of ownership, and therefore gave a decree in favor of respondent. Appellant requested four declarations of law, all of which the court refused to give, and which are set out in full in appellant's abstract of the record. In respondent's contract with Butler county for the purchase of the land in suit, together with many other tracts, it is provided that, in case the title to any land sold respondent fails, the county is to refund the purchase price paid by respondent. The court entered its decree in favor of respondent, and, after an unsuccessful motion for a new trial, appellant brings the cause to this court for review, having fully complied with all conventional requirements to entitle her to same."

Jno. M. Atkinson, for appellant. Jas. F. Green and Ernest A. Green, for respondent.

WOODSON, J.

1. Briefly stated, this land, with vast other bodies of swamp lands, was donated to the state of Missouri by an act of Congress approved September 28, 1850 (Act Sept. 28, 1850, c. 84, 9 Stat. 519). At that time, and down to the 21st day of January, 1864, the land in controversy was located in Ripley county. On February 23, 1853, by an act of the Legislature, all the swamp lands located in Ripley, Butler, and other counties named therein were donated to the counties in which they were located. Laws 1852-53, p. 108. On October 14, 1858, Ripley county, in pursuance to an act of the Legislature approved March 1, 1855 (Laws 1854-55, p. 154), regularly sold, at private sale, the land in suit to one George W. York. Said York paid for the land, and on the same day received a certificate of purchase from the register of swamp lands of said county, and also a receipt from the receiver of public moneys of said county, showing full payment of the purchase price. The register of swamp lands duly entered the sale of this land to York in record book 2 of his office. By an act of the Legislature approved January 21, 1864, the boundary line between Butler and Ripley counties was so changed as to place the land in controversy in Butler county. On October 15, 1858, York, without procuring a patent therefor, sold said land to Peter M. Brown, and by mesne conveyances appellant acquired and is now the owner of the interest purchased by York from Ripley county. The respondent claims title to the same land through a purchase made by him from Butler county, dated January 23, 1902. He received a commissioner's deed therefor from said county.

The first section of the act of February 23, 1853, donating these swamp lands to the various counties, reads as follows:

"Sec. 1. That all swamp lands, lying in the counties of Scott, New Madrid, Pemiscot, Mississippi, Cape Girardeau, Stoddard, Dunklin, Ripley, Butler and Wayne, are hereby donated to the counties in which they lie, upon the terms and provisions of the act entitled `An act donating certain swamp and overflowed lands to the counties in which they lie,' approved March 3, 1851; provided that the amount appropriated for the reclamation of said overflowed and swamp lands, in the counties specified in this section, be refunded to the state."

Section 1 of said act of March 1, 1855, made the county clerk of each named county ex officio register of the swamp lands in his county.

Section 2 made the county treasurer of each county named ex officio receiver of public moneys received from the sale of swamp lands in his county.

Further pertinent provisions of said act are as follows:

"Sec. 4. When any of said lands shall be sold in any of the modes pointed out in this act, the register shall make triplicate certificates of the fact, describing the land so sold by its numbers and quantity, to whom sold, and the amount of the purchase money per acre, and in the aggregate—one of which certificates he shall deliver to the purchaser, file one in his office, and transmit the other to the register of lands at Jefferson City, with an abstract containing the number of the certificate, the name of the purchaser, the number of the land, and the amount of purchase money.

"Sec. 5. When a certificate of purchase shall be presented to the receiver of public moneys, and the money paid, he shall issue triplicate receipts to the purchaser, stating the numbers and quantity of the land, the name of the purchaser, and the amount paid per acre, and in the aggregate—one of which receipts shall be delivered to the purchaser, one filed in his office, and the other transmitted to the register of lands at Jefferson City, with such an abstract as is required to be transmitted by the register in the next preceding section. * * *"

"Sec. 13. The county courts of the several counties in this act named, have power to fix the times of the sales of the land in their respective counties—and when they shall have fixed the time of sale, they shall direct the following things to be done:

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