Stonum v. Davis

• Decision Date: 03 April 1941
• Docket Number: 37233
• Citation: 152 S.W.2d 1067,348 Mo. 267
• Parties: Lizzie A. Stonum, Appellant, v. Sam Davis
• Court: Missouri Supreme Court

152 S.W.2d 1067

348 Mo. 267

Lizzie A. Stonum, Appellant, v. Sam Davis

No. 37233

Supreme Court of Missouri

April 3, 1941

Rehearing Denied June 10, 1941. Motion to Transfer to Banc Overruled July 25, 1941.

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Affirmed.

McKay & McKay for appellant.

(1) The Swamp Land Act of September 28, 1850, gave an inchoate title to the State but the identification of the lands by the Secretary of the Interior was necessary before the title became perfect or the State was entitled to a patent which vested the fee simple title. 6 Fed. Stat. Anno., secs. 2479, 2480, 2481. (2) Congress has the sole power to declare the dignity and effect of titles eminating from the United States and the whole legislation of the Federal government, in reference to the public lands declares the patent the conclusive evidence of legal titles. Until it issues the fee is in the government which by the patent passes it to the grantee and he is entitled to recover the possession in ejectment. Bagnell v. Broderick, 13 Pet. 242, 10 L.Ed. 449; Irvine v. Marshall, 20 Howe, 558, 15 L.Ed. 994; Fenn v. Holme, 21 Howe, 481, 16 L.Ed 198; United States v. Schurz, 102 U.S. 167, 26 L.Ed. 378; Wright v. Roseberry, 121 U.S. 488, 30 L.Ed. 1039; Tubbs v. Wilhoyt, 138 U.S. 134, 34 L.Ed. 887; Chandler v. Calumet Mining Co., 149 U.S. 79, 37 L.Ed. 657; Rogers Locomotive Machine Works v. American Emigrant Co., 164 U.S. 552, 41 L.Ed. 553; Michigan Land & Lbr. Co. v. Rust, 168 U.S. 591, 42 L.Ed. 588; Brown v. Hitchcock, 173 U.S. 772, 43 L.Ed. 471; Niles v. Cedar Point Club, 175 U.S. 300, 44 L.Ed. 171; Little v. Williams, 231 U.S. 335, 58 L.Ed. 256; Ogden v. Buckley, 116 Iowa 352; Carr v. Moore, 119 Iowa 152; Kittel v. Trustees of Internal Improvement Fund, 139 F. 941; Kearns v. Lee, 142 F. 985; United States v. Chi., M. & St. P. Ry. Co., 160 F. 818; Burch v. Gillis, 67 Mo. 102; Hamilton v. Badgett, 293 Mo. 324; General Am. Life Ins. Co. v. Dunklin County, 96 S.W.2d 380; Hamilton v. Badgett, 293 Mo. 324; General American Life Ins. Co. v. Dunklin County, 96 S.W.2d 380. (3) The patent of the United States is the conveyance by which the Nation passes its title to portions of the public domain. For the transfer of that title the law has made numerous provisions designating the persons who may acquire it and the terms of its acquisition. Braden v. Northern Pac. Ry. Co., 154 U.S. 288, 38 L.Ed. 992; Redfield v. Parks, 132 U.S. 239, 33 L.Ed. 327; St. Louis Smelting Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534; Stimpson Land Co. v. Rawson, 62 F. 426; 50 C. J. 1095, sec. 491. (4) As a general rule the issuance of a patent is necessary to divest the United States of legal title to any of the public lands and vest said title in an individual. 50 C. J. 1095-6, sec. 492; Carman v. Johnson, 20 Mo. 108; Brown v. Hitchcock, 173 U.S. 473, 43 L.Ed. 772. (5) Under the Swamp Land Act, the legal title passes only on delivery of the patent, and so long as the legal title remains in the government all questions of right to these lands should be solved by appeal to the Land Department and not to the courts. Brown v. Hitchcock, 173 U.S. 473, 43 L.Ed. 772. (6) The title conveyed by the grant of the United States to the State of Missouri under the Swamp Land Act of September 28, 1850, at the time of the grant, passed only the inchoate or equitable title, subject to be converted to the fee simple or legal title by the survey and designation and the request for patent and issuance of the patent from the government to the state and from the state to the county. All authorities previously cited. (7) The legal title to lands confirmed under Act of Congress on March 3, 1908 (Second U.S. Stat. 401), remains in the United States until the government issues its patent. The confirmation therefore vests in the confirmee nothing more than an equitable title and such title constitutes no defense in a suit in ejectment as a matter of evidence unless pleaded and some way set up as an equitable bar to the action. Carman v. Johnson, 20 Mo. 108; Burgess v. Gray, 16 How. 48; Hooper v. Scheimer, 23 How. 235. (8) The word "Deed" in Missouri homestead law includes a patent and that law provides that a homestead shall be subject to execution upon all causes of action existing prior to the filing in the recorder's office the deed of such homestead when the party holds title by deed (which also includes when a party holds title by patent). Stimpson v. Hall, 163 Mo. 363. (9) While the State has no right to control the primary disposal of the public lands belonging to the United States, yet when the title passes from the government to the state and from the state to the county, courts have jurisdiction to determine the controversy between the adverse claimants thereto. Johnson v. Fleutsch, 176 Mo. 470; McGuire v. Tyler, 40 Mo. 406; Hedrick v. Bealer, 110 Mo. 91; Carman v. Johnson, 20 Mo. 108. (10) A state has no power to declare any title less than one derived from a patent valid against a claim of the United States or against a title granted under a patent of the United States. 50 C. J. 1097, sec. 492; Wilcockson v. Jackson, 13 Pet. 490, 10 L.Ed. 264. (11) The Statute of Limitations did not begin to run until the legal title has passed out of the United States Government and into the State of Missouri and from the State of Missouri to Dunklin County. (a) The Government of the United States is not amenable to Statute of Limitations nor the doctrine of laches. The Statute of Limitations does not begin to run until the date of the Government Patent for the land. Redfield v. Park, 132 U.S. 239, 33 L.Ed. 327. (b) Plaintiff in ejectment must recover on the legal title and cannot maintain an action in ejectment until the execution of a patent for the land by the United States to the state and from the state to the county. Redfield v. Park, 132 U.S. 239, 33 L.Ed. 327; Finley v. Babb, 144 Mo. 403; Finley v. Babb, 173 Mo. 261; Beal v. Harmon, 38 Mo. 436; Gibson v. Chouteau, 39 Mo. 537; Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 535; McIlhiney v. Fiecke, 61 Mo. 329; Miller v. Dunn, 62 Mo. 216; Hammond v. Johnson, 93 Mo. 198; Cummins v. Powell, 97 Mo. 524; Smith v. McCorkle, 105 Mo. 135; Marshall v. Hill, 246 Mo. 23; General American Life Ins. Co. v. Dunklin County, 96 S.W.2d 380; Hamilton v. Badgett, 293 Mo. 324; Tegerman v. LeMarchel, 129 F. 487; Godkin v. Cohn, 80 F. 485; Adkins v. Adams, 256 Mo. 13; Clay v. Mayr, 144 Mo. 376; Kingman v. Seivers, 143 Mo. 519 Turner v. Dixon, 150 Mo. 422; Nalle v. Thompson, 173 Mo. 614; Ables v. Webb, 186 Mo. 247. (c) The statute begins to run against a grantee of the sovereignty (United States Government) only from the time when the purchaser acquired title; in view of the rule excluding the government from the operation of the statute an occupancy prior to that time will not be deemed adverse and can have no effect to give title by adverse possession against grantees of the Federal or State Governments. 2 C. J. 216, sec. 448; Sparks v. Pierce, 115 U.S. 408, 29 L.Ed. 428; Palmer v. Low, 98 U.S. 1, 25 L.Ed. 60; Acksmith v. Johnson, 92 U.S. 343, 23 L.Ed. 682; Burgess v. Gray, 16 How. 48, 14 L.Ed. 839; Jordan v. Barrett, 4 How. 169, 11 L.Ed. 924; Lindsey v. Miller, 6 Pet. 666, 8 L.Ed. 538; Tyee Cons. Min. Co. v. Langstedt, 136 F. 124; Smith v. McCorkle, 105 Mo. 135; Shapleigh v. Cowan, 52 Mo. 559. (d) On the ground that the title of the United States does not pass until the issuance of a patent it is held by one line of cases that the statute runs against a purchaser from the Federal government only from the date of his patent. 2 C. J. 216, sec. 450; Astiazaran v. Santa Anita Land Co., 148 U.S. 13, 37 L.Ed. 376; Redfield v. Parks, 132 U.S. 239, 33 L.Ed. 327; Simmons v. Ogle, 105 U.S. 271, 26 L.Ed. 1086; Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534; Lindsey v. Miller, 6 Pet. 666, 8 L.Ed. 538; Tyee Cons. Min. Co., v. Langstedt, 136 F. 124; Tegarden v. LeMarchel, 129 F. 487; Godkin v. Cohn, 80 F. 458; Marshall v. Hill, 246 Mo. 1; Smith v. McCorkle, 105 Mo. 524; Cummins v. Powell, 97 Mo. 524; McIlhiney v. Fiecke, 61 Mo. 329. (e) The Statute of Limitations begins to run from the time when a complete cause of action accrued and such is in the substance the language of the Statute of Limitations in most jurisdictions; that is when a suit may be maintained. 37 C. J. 807, sec. 152; Boyd v. Buchanan, 176 Mo.App. 56; Stark Bros. v. Gooding, 175 Mo.App. 353. (f) The accrual of a cause of action means the right to institute and maintain a suit and whenever one person may sue another a cause of action has accrued and the statute begins to run, but not until then. 37 C. J., 810, sec. 152; United States v. Southern Pac. Co., 222 F. 197; State v. Logan, 195 Mo.App. 171; Aachen, etc., F. Ins. Co. v. Morton, 156 F. 654; Central Pac. Railroad Co. v. United States, 138 U.S. 84, 34 L.Ed. 951; Landis v. Saxton, 105 Mo. 486; Beaty v. Cruce, 200 Mo.App. 199; Brinsmade v. Johnson, 192 Mo.App. 684.

W. L. Proffer and James A. Bradley for respondent.

(1) The Act of Congress (known as the Swamp Land Act) on September 28, 1850, granted and donated all the swamp and overflowed lands in Missouri, to the State of Missouri, in praesenti, with full power vested in the State of Missouri to dispose of said swamp lands. General Am. Life Ins. Co. v. Dunklin County, 96 S.W.2d 380; Wilson v Beckwith, 140 Mo. 359; Sexton v. Dunklin County, 246 S.W. 195; Simpson v. Stoddard County, 173 Mo. 421; 2 C. J., p. 217; Natl. Cypress Pole & Piling Co. v. Hemphill Lbr. Co., 31 S.W.2d 1059; Linville v. Bohanan, 60 Mo. 558; United States v. Railroad, 146 U.S. 570; Francouer v. Newhouse, 43 F. 236; Deseret Salt Co. v. Tarpey, 142 U.S. 241. (2) The State of Missouri, by its...