Senter v. Wisconsin Lumber Co.

Decision Date03 March 1914
Citation255 Mo. 590,164 S.W. 501
PartiesSENTER v. WISCONSIN LUMBER CO.
CourtMissouri 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.

GRAVES, J.

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:

"In witness whereof, I, Leander J. Taylor, sheriff of the county of Dunklin, have hereto set my hand, and affixed my seal, this the fifteenth day of November, 1860. Leander J. Taylor, Sheriff of Dunklin County, Mo. [Seal.]"

This deed has the following acknowledgment: "State of Missouri, County of Dunklin—ss.: Be it remembered, that on this 7th day of September, 1867, personally appeared in open court Leander J. Taylor, whose name appears to the foregoing instrument of writing as a party thereto, and who was at the date of said deed sheriff of Dunklin county, Missouri, and he acknowledges the same to be his voluntary act and deed as such sheriff for the uses and purposes therein mentioned and expressed. Given under my hand and seal of the circuit court at office in Kennett this 7th day of September, 1867. Leonard T. Bragg, Clerk, by Wm. G. Bragg, Deputy."

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:

"The plaintiff then offers in evidence certain tax receipts of the collector of Dunklin county purporting to show that: Respondent and his grantors paid the state, county, and special taxes on the fractional southwest quarter (S. W. ¼) of section nine (9), township sixteen (16), range nine (9), for 1879 to 1886, inclusive, 1892 and 1894 to 1909, inclusive. Respondent and his grantors paid state, and county taxes on the fractional southeast quarter (frac. S. E. ¼) of section nine (9), township sixteen (16), range nine (9), for 1893. Respondent and his grantors paid state, county, and special taxes on the northwest quarter (N. W. ¼) of section eleven (11), township sixteen (16), range nine (9), for 1880, 1883 to 1886, inclusive, and 1892 to 1909, inclusive. Respondent and his grantors paid taxes on the west half (W. ½) of section thirty (30), township seventeen (17), range ten (10), for 1879, 1882 to 1886, inclusive, and 1892 to 1909, inclusive. Respondent and his grantor paid taxes on the fractional south half (frac. S. ½) of section twenty-eight (28), township eighteen (18), range ten (10), for 1880, to 1882 to 1886, inclusive, and 1892 to 1909, inclusive. To the introduction of said tax receipts, the defendant objected, on the ground that they were incompetent, irrelevant, and immaterial, and that the receipt of taxes by the officers of Dunklin county could not estop the county. The court reserved its ruling. The plaintiff offered in evidence tax records of Dunklin county, Mo., to show that the lands were assessed to R. C. Allen in 1879, 1880, 1881, 1882, 1883, 1884, and 1885, and also to show that the lands were assessed to C. R. Allen during the years for which tax receipts have not been offered, and that taxes were paid by R. C. Allen until the year 1889, when he died. Plaintiff also offered said tax records to show that taxes were paid on those lands by the administrator of R. C. Allen and by the grantees of Wm. A. Allen and T. C. Allen, for 1889, 1890, and 1891. The defendant objected to the foregoing, on the ground that no foundation had been laid by showing that the records were in existence.

"The Court: Subject to the objection. What is next?

"The plaintiff then rested."

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: "No one has a right to require another to come into court and show his title who cannot himself show at least prima facie title, and no plaintiff is entitled to a decree declaring the claim of another invalid until he has shown that he himself has a better claim; in equity, as at law, if one recovers at all, it must be on the strength of his own title. Therefore, when the plaintiff calls this defendant into court to answer and show what title it has, he is not entitled to a decree declaring that the defendant's claim of title is invalid until he first shows prima facie a valid title in himself, even though the defendant offers no proof of his own title. If, therefore, the defendant's proof goes no farther than to show that the plaintiff's title is invalid, the plaintiff is not entitled to a decree. If the plaintiff has no valid title, it is no concern of his to know whether or not the defendant's claim is valid."

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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27 cases
  • Cullen v. Johnson
    • United States
    • Missouri Supreme Court
    • 3 Junio 1930
    ...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......
  • Cullen v. Johnson
    • United States
    • Missouri Supreme Court
    • 3 Junio 1930
    ...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. Said instruction further fails to recognize the fact that if the land in question was the old bed of the Missouri River, and that th......
  • Bostwick v. Freeman
    • United States
    • Missouri Supreme Court
    • 26 Febrero 1942
    ...has no title. [Cullen et al. v. Johnson, 325 Mo. 253, 29 S.W.2d 39, l. c. 46; Senter v. Wisconsin Lumber Co., 255 Mo. 590, l. c. 601, 602, 164 S.W. 501; Wheeler Reynolds Land Co., 193 Mo. 279, l. c. 291, 91 S.W. 1050; Parker v. Wear et al. (Mo.), 230 S.W. 75, l. c. 78.] The judgment entered......
  • Wetmore v. Berger
    • United States
    • Missouri Supreme Court
    • 2 Julio 1945
    ... ... Freeman, ... 160 S.W.2d 713; Cullen v. Johnson, 325 Mo. 253, 29 ... S.W.2d 39; Senter v. Wisconsin Lbr. Co., 255 Mo ... 590, 164 S.W. 501; Wheeler v. Reynolds Land Co., 193 ... Mo ... ...
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