Weir v. Cordz-Fisher Lumber Co.

• Decision Date: 15 February 1905
• Citation: 186 Mo. 388,85 S.W. 341
• Parties: WEIR v. CORDZ-FISHER LUMBER CO.
• Court: Missouri Supreme Court

85 S.W. 341

186 Mo. 388

WEIR v. CORDZ-FISHER LUMBER CO.

Supreme Court of Missouri, Division No. 1.

February 15, 1905.

DEEDS—RECORD—DESTRUCTION OF RECORD—TAX SUIT—SALE—RIGHTS ACQUIRED AGAINST OWNER—POSSESSION OF LAND—POSSESSION FOLLOWING TITLE—THIRTY-YEAR LIMITATIONS.

1. Where the record of a deed of wild and vacant land to plaintiff was destroyed by fire, and thereafter defendant purchased the land at a tax sale under a judgment in a suit against plaintiff's grantor, to which suit plaintiff was not a party, and plaintiff did not know of the destruction of the record until after the purchase at tax sale, plaintiff's rights were not affected by the judgment or sale of the land, and would not have been even if he had known of the destruction of the record.

2. Plaintiff was not estopped by laches from setting up his title 16 years after the tax sale.

3. The possession of wild and vacant land follows the record title.

4. Where a tax judgment and sale of wild and unoccupied land thereunder are void, the purchaser takes no record title affording presumptive possession.

5. The 1 year mentioned in the 30-year statute of limitations was merely a saving clause in favor of persons who might be affected by the statute, and was intended to give them such time after the statute went into effect in which to bring suit, and did not contemplate that possession for 1 year only before suit was brought would impair any right of the claimant.

6. The mere cutting of timber by a person from wild and unoccupied land adjoining his land is not sufficient, alone, to constitute possession thereof.

7. Where the agreed facts showed that plaintiff had a tax receipt for certain lands for the year 1869, and that he would swear that he thought he paid taxes up to 1875, it amounted to some evidence that plaintiff paid taxes within 30 years prior to 1902.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Suit by Robert Weir against the Cordz-Fisher Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Orr & Luster, for appellant. John C. Brown and Warren D. Isenberg, for respondent.

MARSHALL, J.

This is a suit, under section 650, Rev. St. 1899, to ascertain and determine the rights of the respective parties to the southeast quarter of section 27, township 26 north, range 5 west, in Shannon county. The suit was begun on March 13, 1902, in the manner provided by section 793, Rev. St. 1899, by the parties voluntarily entering their appearance and filing the following agreed statement of facts:

"Come now the parties, and submit the following agreed statement of facts, under section 793, Rev. St. 1899, touching a matter in difference between them regarding the title to the southeast quarter of section 27, township 26, range 5 west, in Shannon county, Mo.; each party hereto claiming title adversely to the other. It is agreed that the facts and records regarding said title are: That said lands were entered by David Vinton, August 20, 1859, and a patent for same duly issued by the United States and delivered to said Vinton on August 1, 1860, but that said patent has never been recorded in Shannon county. That said lands are wild timber lands, no part of which has ever been inclosed or in cultivation, and no improvements are thereon. That both parties claim title through the patentee, David Vinton, as hereinafter set out. That plaintiff claims said lands under a general warranty deed made by David Vinton to plaintiff, for a valuable consideration, on September 24, 1859, which deed was duly executed, acknowledged, and delivered by said Vinton, and duly filed and recorded in the office of the clerk of the circuit court and ex officio recorder of deeds of Shannon county, Mo., on July 21, 1869. That the record of the said deed from Vinton to plaintiff, together with all the deed records of Shannon county, Mo., were, without fault of plaintiff, destroyed by fire on December 31, 1870. That said deed was never thereafter recorded in Shannon county, and the destruction of said records was not known to plaintiff until the 1st day of January, 1890. That plaintiff never owned or claimed title to any other lands in township 26, range 5, in said county. That defendant claims title as follows: First. Under a deed duly executed and acknowledged, dated August 6, 1886, recorded March 17, 1887, from David Vinton to the Central Land Company. Second. Under a sheriff's deed dated September 15, 1887, based on a judgment of the Shannon county circuit court in a back-tax suit against said lands and David Vinton, as owner, against whom said taxes were assessed. Said judgment was rendered September 17, 1886, for the taxes for the year 1884. Said deed purporting to convey all of the interest of said David Vinton in and to said lands. That plaintiff was not named as a defendant in said tax proceedings. That defendant claims under said sheriff's tax deed by mesne conveyances from the grantee therein. That the deeds to the defendant purporting to convey said lands also include all the lands indicated on the plat hereto attached, marked `X,' and is dated the 5th day of March, 1897; recorded March 10, 1897. That more than one year prior to the commencement of this suit the defendant constructed and had in operation a tramroad across the lands covered by its deed in township 26, range 5, as shown on the plat by red lines also indicated on said plat, but said tramroad does not touch or cross the land in controversy. That it built on section 10, as also indicated on the plat, about 75 tenant houses which have been continuously occupied by its tenants for more than three years last past. That the tenants occupying said houses are employed in cutting and hauling timber from the lands shown on said plat, but are not now cutting or hauling timber from the lands in section 27, but have cut within the last year about 20,000 feet of timber from the land in controversy. That all of the lands shown on the plat are principally valuable for the pine timber thereon, and not for general farming. That the defendant is the owner of a large saw and planing mill at the end of said tramroad, and owns large bodies of pine lands adjoining the lands in township 26—5, from which it gets its timber for said mill. That defendant and those under whom it claims, except Vinton, have paid all the state, county, and school taxes levied against the lands in dispute since 1884. That in 1879 judgment was rendered before justice of the peace against said lands in dispute to enforce the lien of the state for taxes for the years 1871 to 1878, inclusive, and the said lands thereafter were sold under said judgment, and defendant's grantor became the purchaser of the same, and said purchaser and his grantees have paid all taxes on said lands up to the year 1883, and subsequent to the year 1878. It is admitted that...