National Cypress Pole & Piling Co. v. Hemphill Lumber Co.

• Decision Date: 03 July 1930
• Docket Number: 28575
• Citation: National Cypress Pole & Piling Co. v. Hemphill Lumber Co., 325 Mo. 807, 31 S.W.2d 1059 (Mo. 1930)
• Parties: National Cypress Pole & Piling Company v. Hemphill Lumber Company, Appellant
• Court: Missouri Supreme Court

31 S.W.2d 1059

325 Mo. 807

National Cypress Pole & Piling Company v. Hemphill Lumber Company, Appellant

No. 28575

Supreme Court of Missouri

July 3, 1930

Motion for Rehearing Overruled October 13, 1930.

Appeal from Iron Circuit Court; Hon. E. M. Dearing, Judge.

Reversed and remanded.

Orville Zimmerman for appellant.

(1) A covenantee will not be permitted to recover substantial damages for a breach of the covenant of seizin or of warranty of title until there has been an eviction, either actual or constructive or until he has been compelled to yield to a paramount title to prevent actual eviction or that there has been an extinguishment of his title. Leet v. Gratz, 124 Mo.App. 394; Carter v. Butler, 264 Mo. 306, 174 S.W. 399; Mumford v. Keets, 65 Mo.App. 502; Pence v. Gabbert, 63 Mo.App. 306; Crosby v Evans, 195 S.W. 516; Buren v. Hubbel, 54 Mo.App. 617; Cartwright v. Culver, 74 Mo. 179; Hunt v. Marsh, 80 Mo. 396; Morgan v. Railroad Co., 63 Mo. 129; Lambert v. Estes, 99 Mo. 604; Eaker v. Harvey, 179 S.W. 985. (a) The record does not show that there has ever been any assertion by any holder of any title paramount to the title of Hemphill Lumber Company, and the Supreme Court never made any finding in the case decided by it, and referred to as the case of Hemphill Lumber Company v. Parker, as to who the holder of the paramount title was. Hemphill Lumber Co. v. Parker, 254 S.W. 698. (b) The trial court found as a fact, and so decided in Instruction 6 given for defendant, that Parker had no interest in or title to lands in suit. Declaration of Law No. 6 for Defendant. (c) The defendant acquired the legal title to the lands in suit and this title was conveyed to plaintiff. (d) If it be ruled that the legal title did not pass to defendant, appellant still contends that it gave plaintiff, by warranty deed, an equitable title to the lands in suit, and that it held this title at the date of the institution of this suit. (e) The character of the lands at the date of the swamp land grant determines whether or not the lands in controversy were within the grant. 32 Cyc. 904. (f) Parol evidence is admissible to show the character of the land when it appears that the Secretary of the Interior has refused to take any action relative to same. Palmer v Boorn, 80 Mo. 99. (g) Unsurveyed swamp lands should not be considered as excluded from the swamp land grant because not in the list filed by the Department of the Interior embracing such lands. People v. Warner, 116 Mich 228, 74 N.W. 705; Cummings v. Powell, 97 Mo. 524. (h) A state can make binding contracts relative to lands included in swamp land grants prior to identification. Kerns v. Lee, 142 F. 985; Carr v. Moore, 119 Iowa 152, 93 N.W. 52, 79 Am. St. 292. (2) No recovery can be had for substantial damages for breach of covenant of warranty where covenantee obtained an equitable title by the conveyance unless a disturbance of its possession by a holder of a paramount title is shown. Frank v. Organ, 151 S.W. 504; Falk v. Organ, 160 Mo.App. 218; Evans v. Fulton, 134 Mo. 653; Bircher v. Adams, 13 Mo. 522. (3) Declaration of law No. 21 given at the request of plaintiff is erroneous because it permits plaintiff to maintain this action, even though it was placed in possession by defendant, without any eviction or assertion of a paramount title. All authorities supra. (4) The decisions of the Department of Interior upon questions of fact and upon the character of land involved are conclusive and binding upon the courts. 32 Cyc. 1020 (15); 32 Cyc. 1025 (b); 32 Cyc. 1028 (b); Hodges v. Oil Co., 20 F.2d 1022; Edenborn v. United States, 5 F.2d 815; Daniels v. Wagner, 35 S.Ct. 744; Edward R. T. Co. v. Farrell, 21 S.Ct. 328. (5) The court erred in refusing defendant's declaration of law number 5 because the testimony shows that plaintiff voluntarily yielded and surrendered the seizin and possession of the land and alleged the title to be in the United States Government. Gardnier v. McPike, 184 S.W. 956; Evans v. Fulton, 134 Mo. 653; Morgan v. Railroad, 63 Mo. 129; Lambert v. Estes, 99 Mo. 604; 15 C. J. 1310; Thompson v. Conran's Estate, 181 S.W. 594. (6) The Douglass Survey and the Randol Survey offered in evidence were legal and binding upon the County of Dunklin and those claiming under it. Sexton v. Dunklin County, 246 S.W. 195; R. S. 1919, secs. 7029, 7030, 7032, 7033. (7) The court erred in giving plaintiff's requested declarations of law numbered 22, 23, 24, 25, because: (a) The undisputed testimony in this case shows that defendant and its grantor had exercised all the acts of possession over the lands in suit of which they were capable. Norton v. Kowazek, 193 S.W. 556; Benne v. Miller, 149 Mo. 288; Golderman v. Schiermeyer, 125 Mo. 291; Golderman v. Schiermeyer, 111 Mo. 404; Lepper v. Baker, 68 Mo. 400; Draper v. Shoot, 25 Mo. 197. (b) Cutting timber, patrolling and keeping off trespassers and payment of taxes are acts of ownership which are evidences of possession. Herbst v. Merrifield, 133 Mo. 270; Himmelberger-Harrison Lbr. Co. v. Craig, 248 Mo. 319; Thompson v. Stillwell, 253 Mo. 89; Turner v. Hall, 60 Mo. 271; Pharis v. Jones, 122 Mo. 125. (c) It is not necessary that lands be fenced or that buildings be erected thereon. Lepper v. Baker, 68 Mo. 405; Norton v. Kowazek, 193 S.W. 556; Brown v. Hartford, 173 Mo. 192. (8) The judgment of the court is excessive, because: (a) If there was a failure of title to part of the land, it is clear from the facts that there could not be a failure as to all the title found by the court to be defective. Sexton v. Dunklin County, 246 S.W. 195; (b) Defendant should have credit for value of timber cut and removed from land during plaintiff's occupancy and before it voluntarily yielded title and possession. Hutchins v. Roundtree, 77 Mo. 500; Stead v. Rosier, 157 Mo.App. 300; Pence v. Admr., 70 Mo.App. 201; 15 C. J. 1329, par. 237; 15 Cyc. 1380, par. 238.

Glenn N. Venrick and Langdon R. Jones for respondent.

(1) At the time of the purported conveyance, appellant had no title to any part of the land. (a) The land at the time of the U.S survey, was "overflowed and swamp land" within the meaning of the Swamp Land Grant of 1850, and the conveyance from the United States of the land bordering the land in question did not convey anything beyond the actual boundaries of the government survey. The land involved in this appeal, being without such surveyed boundaries, title thereto remained in the United States. U.S. Comp. St. 1916, secs. 4598, 4959; Hemphill Lumber Co. v. Parker, 254 S.W. 698; Producers Oil Co. v. Hanzen, 238 U.S. 325; State v. Nolegs, 40 Okla. 479, 139 P. 943; Howard v. Ingersoll, 13 How. 381, 14 L.Ed. 189; 32 Cyc. 905, 901; Niles v. Cedar Point Club, 175 U.S. 301; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338; Chapman & Dewey Lbr. Co. v. Levee District, 232 U.S. 186; Little v. Williams, 231 U.S. 335; Lee Wilson & Co. v. United States, 245 U.S. 24; Berch v. Gillis, 67 Mo. 102; Stephenson v. Stephenson, 71 Mo. 127; Prior v. Lambeth, 78 Mo. 538; Cramer v. Keller, 98 Mo. 279. (b) The trial court found as a matter of fact that the lands involved were of the kind and character designated as swamp and overflowed lands and were of the class and character of lands contemplated by the Swamp Land Grant Act of 1850, and that said lands were subject to the provisions of said act. Not only was there substantial evidence to support this finding, but it was supported by the overwhelming weight of the evidence. A jury having been waived, the findings of the court in this regard are conclusive and established the fact upon which the law of the case must operate. Slicer v. Owens, 241 Mo. 323; Minor v. Burton, 228 Mo. 564; Sec. 1398, R. S. 1919. (2) Appellant contends that respondent's action was prematurely brought since, appellant asserts, respondent had possession and did not plead or prove an eviction from the lands, or a disturbance of title or possession, or yielding to a paramount title. This contention must fail, because (a) Even though respondent had possession of the lands involved (which, as a matter of fact, it did not), no eviction, or disturbance of title or possession or yielding was necessary as a prerequisite to the commencement of an action for the recovery of substantial damages. The United States are always seized of their lands; that the same cannot lawfully be the subject of sale and conveyance by individuals, so as to confer any right; a grantee of such land from a grantor other than the United States cannot take possession without becoming a wrongdoer; therefore, an eviction, a disturbance of title or possession, or a yielding is not necessary and a covenant of warranty and seizin in such case is deemed broken when made. Ferguson v. Dent, 8 Mo. 479; Whatcom Timber Co. v. Wright, 173 P. 724; Seldon v. Jones Co., 74 Ark. 348; Dillahunty v. Railway Co., 59 Ark. 629; Cover v. McAden, 183 N.C. 641; McGary v. Hastings, 39 Cal. 360; Kansas Pac. Ry. Co. v. Dunmeyer, 19 Kan. 539; Harrington v. Clark, 56 Kan. 644; Pevey v. Jones, 71 Miss. 647; Beecher v. Tinnin, 189 P. 44. (b) Assuming that title to the lands was not in the United States, but was in the riparian owners, nevertheless, since appellant had neither title nor possession and since respondent acquired from the appellant neither title nor possession, the covenants of title and seizin sued on were broken when made and respondent can maintain this action for substantial damages without pleading or proving an eviction, a disturbance of title or possession, or a yielding to a paramount title. Adkins v. Tomlinson, 121 Mo. 487; Jeffords v. Driesbach, 168 Mo.App. 577; Falk v. Organ, 160 Mo.App. 218; Frank v. Organ, 167 Mo.App. 493; Murphy v. Price, 48 Mo. 250. (c) Appellant, before execution of the deed, and res...