Senter v. Wisconsin Lumber Co.
Decision Date | 03 March 1914 |
Citation | 255 Mo. 590,164 S.W. 501 |
Parties | SENTER v. WISCONSIN LUMBER CO. |
Court | Missouri Supreme Court |
Appeal from Circuit Court, Dunklin County; J. L. Fort, Judge.
Action by Charles F. Senter against the Wisconsin Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.
Arthur L. Oliver, of Caruthersville, and Victor A. Remy, of Chicago, Ill. (Edgar A. Bancroft, of Chicago, Ill., of counsel), for appellant. J. L. Fort, of Dexter, for respondent.
Action under old section 650 to determine title to certain lands in Dunklin county. The petition is of the very shortest form under such section. The only clause in the petition out of the ordinary averments that plaintiff owns the land, and that defendant claims same title or interest therein, is the following clause: "That said lands are swamp, and not susceptible of cultivation; but plaintiff has been in possession thereof, paying taxes on the same, and exercising over them all the acts of ownership and possession of which the said lands are susceptible." The answer admits the corporate existence of defendant, and that it is empowered to transact business in the state, and further admits that it does claim an interest in the lands in suit, and avers that interest to be a fee-simple interest in all of such lands. The answer also denies that plaintiff, has any interest therein, and prays that defendant be dismissed, with its costs. Defendant's answer is a little out of the usual, in that it does not pray that the court adjudicate and determine title, a prayer usually found in answer filed in suits under this section of the old statute. Reply was a general denial. Upon the issues thus made the trial court found for the plaintiff, and adjudged that the title to all of such lands was in the plaintiff. From this judgment, the defendant has appealed.
It is conceded that the plaintiff is not entitled to a judgment for all the lands given him by the decree nisi; but, with the view we take of the law of the case, there is no necessity to go into the details of this question. It will suffice to say that both parties to this suit claim through Dunklin county as a common source of title, the plaintiff through a sheriff's deed, and the defendant through some three or four patents. Plaintiff begins to deraign his title by sheriff's deed made in 1860 and acknowledged in 1867.
This deed, among other things, recites: "Whereas, on the 16th day of May, in the year of our Lord 1860, a judgment was rendered in the circuit court of the county of Dunklin, in favor of Daniel B. Miller, against Dunklin county, for the sum of fifteen hundred and eighty-one dollars and ninety-one cents for debt, upon which judgment an execution issued from the clerk's office of said court in favor of said Daniel B. Miller against the said Dunklin county, dated the 18th day of October, 1860, directed to the sheriff of the county of Dunklin, and the same was to me delivered on the 20th day of October, 1860, by virtue of which said execution, I, the said sheriff, did, on the 20th day of October, 1860, levy upon and seize all the right, title, interest, and estate of said Dunklin county of, in, and to the following described real estate situated in my said county, to wit." After describing a large quantity of land, it then recites that all such land was sold to Daniel B. Miller on the 12th day of November, 1860, for the sum of $522.96, and then thus winds up:
This deed has the following acknowledgment:
It was filed for record on the same day. All of plaintiff's paper title, if any he has, comes through this deed. He offered a number of mesne conveyances, which we need not detail. In addition to this so-claimed paper title, the record, so far as plaintiff's title is concerned, then shows the following:
This suit was brought in 1909, March 9th, and we will not go into defendant's answer at this time further than to state, upon the question of taxes, that the record shows that it had also paid taxes upon these lands for five or six years prior to the date of the suit. For the present this sufficiently outlines the case.
I. Of first importance in this case is the validity of plaintiff's paper title. He must make a prima facie title before he can call the defendant into court, and have the court declare the alleged claim of the defendant invalid. In Wheeler v. Reynolds Land Co., 193 Mo. loc. cit. 291, 91 S. W. 1053, Valliant, J., has well said:
It is contended by the defendant that the sheriff's deed to Miller was and is void upon its face. In other words, that it purports to convey title to swamp land through a sale under a general judgment against the county, and that such lands are not and were not subject to sale in that way. This contention we think well taken. Swamp lands could not be sold under a judgment of the kind and character indicated by the sheriff's deed in this case. These swamp lands were held by the counties in trust for specified purposes, and were not such as could be subjected to the payment of the general county indebtedness by execution sale. When we say the lands were held in trust by the counties, we do not mean that there was a trust which ran with the land, and effected the title thereto, if sold in an attempted exercise of the power of sale given the county; but we mean that the funds obtained from such a sale were impressed with a trust as indicated by the purpose expressed in the act transferring the title from the federal government to the state. This is the doctrine of Simpson v. Stoddard County, 173...
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...the strength of their own title, and not upon the weakness of defendant's title. 32 Cyc. 1329; Parker v. Wear, 230 S.W. 78; Senter v. Lumber Co., 255 Mo. 590. (b) Said instruction further fails to recognize the fact that if the land in question was the old bed of the Missouri River, and tha......
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