Organ v. Bunnell

• Decision Date: 29 February 1916
• Docket Number: No. 17668.,17668.
• Citation: 184 S.W. 102
• Parties: ORGAN v. BUNNELL et al.
• Court: Missouri Supreme Court

184 S.W. 102

ORGAN v. BUNNELL et al.

No. 17668.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

Rehearing Denied March 30, 1916.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by J. B. Organ against Mary T. Bunnell and another. From a verdict for plaintiff, the defendants appeal. Reversed and remanded, with directions.

On September 9, 1908, plaintiff filed in the circuit court of Dent county, Mo., his petition to quiet title to lots 2 and 3 of the northeast quarter, and lots 2 and 3 of the northwest quarter, of section 4, township 34 north, range 2 west, situate in the county and state aforesaid. The petition alleges that said real estate is wild, uncultivated, and timbered land; that it is not in possessior of either plaintiff or defendants; that defendants claim title adversely to plaintiff. An order of publication was issued against defendants Nathan R. Porter, John Russell, David Bunnell, unknown heirs of John Russell, deceased, and Frank. C. Russell, and judgment by default was rendered against them.

On October 14, 1911, a petition was filed in said court to review the judgment aforesaid, which said petition on December 8, 1911, was sustained, said judgment set aside, and leave given defendants to answer, by the first day of April term, 1912. On April 15, 1912, defendants Mary T. Bunnell and Leslie C. Bunnell filed an answer, admitting that they claim title to said land, and admitting that it is wild and uncultivated. They deny each and every other allegation in petition. The answer then avers that defendant Mary T. Bunnell is the daughter of John Russell, who died in 1869; that Leslie C. Bunnell is her sole and only child and heir at law; that he is the only child and heir at law of her deceased husband, Daniel M. Bunnell; that Frank C. Russell conveyed a two-ninths interest in said land to Daniel M. Bunnell; that said Frank C. Russell, conveyed his other one-ninth interest in said real estate to Mary T. Bunnell; that Sarah E. Boal conveyed her three-ninths interest in said property to Mary T. Bunnell. It is averred that John Russell died in the year 1869, leaving as his sole and only children and heirs at law, Frank C. Russell, Sarah E. Boal (née Russell), and the defendant Mary T. Bunnell.

It appears from the record that Charles Pelfresne, on June 1, 1858, as shown by the plat book at Ironton, Mo., entered the land in dispute. Ten days after this entry, on June 10, 1858, but more than one year before a patent was issued, he executed a warranty deed to John Russell, and this deed was recorded April 5, 1859, in Dent county, Mo. The records of Dent county were destroyed in 1866, and Russell's deed was re-recorded October 19, 1878, in said county. The above deed to Russell describes the land in controversy. On July 1, 1891, Frank C. Russell and wife conveyed by warranty deed, a two-ninths interest in the land described in the patent aforesaid, to Daniel M. Bunnell. This deed was recorded July 30, 1891, in Dent county aforesaid.

The sole and only children and heirs at law of John Russell are Sarah E. Russell, who married Harry E. Boal, Frank C. Russell, and Mary T. Russell, who married Daniel M. Bunnell. The latter died September 14, 1910, leaving as his sole and only child and heir at law, Leslie C. Bunnell and his widow, Mary T. Bunnell. On November 14, 1911, Frank C. Russell and wife conveyed by quitclaim deed to Mary T. Bunnell a one-ninth interest in the land aforesaid. On November 14, 1911, said Sarah E. Boal and husband conveyed three-ninths interest in the land aforesaid to said Mary T. Bunnell.

Mary T. Bunnell testified that Daniel M. Bunnell was her husband, and that he died September 14, 1910; that Leslie C. Bunnell, then 22 years of age, is her child; that her father's name was John Russell; that he died in Ohio, December 16, 1860; that Margaret M. Russell was her mother; and that Mrs. Boal, Frank C. Russell and herself were the only children and heirs at law of John Russell, deceased.

Plaintiff's title is deraigned as follows: United States to Charles Pelfresne, patent, dated September 1, 1859. Charles Pelfresne to John Russell, deed, dated June 10, 1858 ; recorded April 5, 1859; re-recorded October 19, 1878. Charles Pelfresne to John Simpson, deed, dated November 15, 1872; recorded April 24, 1873. John Simpson to Nathan T. Porter, deed, dated June 3, 1873, recorded. John Russell and Nathan T. Porter to E. B. Sankey and E. L. Foote, sheriff's deed, dated April 5, 1892; recorded. E. B. Sankey and E. L. Foote to M. L. Organ, deed, dated July 9, 1908; recorded, April 18, 1909. John Russell, unknown heirs of John Russell, deceased, Frank C. Russell, David M. Bunnell, Nathan T. Porter, E. B. Sankey, and E. L. Foote to M. L. Organ, sheriff's deed for taxes, dated April 5, 1908; recorded August 6, 1908. M. L. Organ to J. B. Organ, deed, dated April 29, 1908; recorded September 5, 1908.

It is undisputed that John Russell died in 1860. The first tax deed therefore to Sankey and Foote is void on account of Russell's death. When the land was sold for taxes in 1908, the following parties were defendants in the tax suit: John Russell, unknown heirs of John Russell, deceased, Frank C. Russell, David M. Bunnell, Nathan T. Porter, E. B. Sankey, and E. L. Foote. The regularity of the petition in said last-named case, the order of publication and sale of the land aforesaid is not questioned, but the judgment upon which the sale is based is assailed, because it is against John Russell, the unknown heirs of John Russell, deceased, and David M. Bunnell. The sheriff's deed under the judgment of 1908 shows that only lots 2 and 3 of the northeast quarter of section 4, township 34, range 2 west, was sold to Martha L. Organ.

The court below found the issues for plaintiff and decreed that he was the owner of the land in controversy, but through oversight it is described as being in section 3, when it should read section 4. The instruction given by the court of its own motion, and the two instructions asked by defendants and refused by the court, will be considered in the opinion.

Defendants filed a motion for a new trial, which was overruled, and the cause duly appealed to this court.

G. C. Dalton and R. L. Horseman, both of Salem, and C. M. Buford, of Ellington, for appellants. Wm. P. Elmer, of Salem, for respondent.

RAILEY, C. (after stating the facts as above).

On June 1, 1858, Charles Pelfresne entered the land in controversy, at the government land office in Jackson, Mo., and received a patent from the United States therefor on September 1, 1859. On June 10. 1858, he conveyed said land by warranty deed to John Russell. The last-mentioned conveyance was recorded in the office of the recorder of deeds in Dent county aforesaid on April 5, 1859. The records of said county were destroyed by fire in 1866, but the recording of Russell's deed from Pelfresne imparted notice to subsequent purchasers, notwithstanding the destruction of the records of said county. Section 2419, R. S. 1889; section 692, R. S. 1879; section 25, G. S. 1865, p. 447; section 41, R. S. 1855, p. 364; Crane v. Dameron, 98 Mo. 567, 12 S. W. 251; Geer v. Missouri Lumber & Mining Co., 134 Mo. 85, 92, 34 S. W. 1099, 56 Am. St. Rep. 489; Weir v. Cordz-Fisher Lumber Co., 186 Mo. 388, loc. cit. 395, 85 S. W. 341; Williams v. Butterfield, 214 Mo. 412, 426, 114 S. W. 13.

The patent aforesaid was not recorded in Dent county, but was duly recorded at the General Land Office in Washington, D. C., at the time it was issued in 1859. There is no provision in our statute which requires a patent from the United States to be recorded in the county where the land lies. Wilcox v. Phillips, 260 Mo. loc. cit. 680, 169 S. W. 55; Mosher v. Bacon, 229 Mo. loc. cit. 358, 129 S. W. 680, and following; 2 Jones on Real Property, §§ 1377, 1378.

Pelfresne conveyed the land in controversy to John Simpson, by warranty deed, November 13, 1872, and said deed was recorded in Dent county, April 23, 1873. The deed from Pelfresne to Russell was re-recorded in said county October 19, 1878. It appears from the evidence that the above patent was found with the papers of John Russell, who died in 1860.

There is nothing in the record to indicate that Simpson paid a valuable consideration for the land, nor does it appear therefrom that he was not aware of the deed made by Pelfresne to Russell before the patent was issued. The record, however, shows that Russell received from Pelfresne a warranty deed for the land in controversy, on June 10, 1858, and recorded the same in Dent county, Mo., on April 5, 1859. John Russell, by virtue of said last-mentioned deed, became the absolute owner of the after-acquired title of Pelfresne. Wood v. Smith, 193 Mo. 484, 91 S. W. 85; Hammond v. Johnston, 93 Mo. loc. cit. 213, 6 S. W. 83; Callahan v. Davis, 90 Mo. 78, 2 S. W. 216; Waters v. Bush, 42 Iowa, 255; 32 Cyc. 1037, note 87; 32 Cyc. 1080 (k).

We accordingly hold that John Simpson acquired no title to the land in suit through his deed from Pelfresne supra, and that John Russell, through his warranty deed from said Pelfresne, became the absolute owner of the land in controversy.

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