Weir v. Cordz-Fisher Lumber Company

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

85 S.W. 341

186 Mo. 388

WEIR v. CORDZ-FISHER LUMBER COMPANY, Appellant

Supreme Court of Missouri, First Division

February 15, 1905

Appeal from Shannon Circuit Court. -- Hon. W. N. Evans, Judge.

Affirmed.

Orr & Luster for appellant.

(1) The tax deed based on the judgment for taxes against David Vinton, who was the record owner when said taxes were assessed, suit brought, judgment rendered, and sale had, is sufficient to vest in defendant the legal title as against plaintiff, who claims under said David Vinton by deed dated in 1859, the record of which was burned, it not appearing that either the collector or the purchaser at the tax sale had any notice of said deed. Allen v. Ray, 96 Mo 547; Payne v. Lott, 90 Mo. 676; Evans v Roberson, 92 Mo. 192; Vance v. Corrigan, 74 Mo 94. (2) Whether the sheriff's deed passed the legal title or not, plaintiff by his laches is estopped from setting up his title at this late day. Hequemborg v. Edwards, 155 Mo. 522; Bales v. Perry, 51 Mo. 449; Austin v. Loring, 63 Mo. 22; Bispham's Principles of Equity (6 Ed.), secs. 39 and 284; Tiedeman on Real Property (Ed. 1883), p. 544. (3) Whether the tax deed under which defendant claims title is sufficient to pass the legal title to defendant or not, it constitutes color of title, and defendant having taken actual possession of a part of the tract covered by one deed, its possession will be held to extend to the limits of the land covered by such deed. Sec. 4226, R. S. 1899; Benne v. Miller, 149 Mo. 228; Pharis v. Bayless, 122 Mo. 123; Stevens v. Martin, 68 S.W. 374; Ozark Land Co. v. Hayes, 105 Mo. 143; McElhenney v. Kraus, 10 Mo.App. 218; Menkins v. Overhouse, 22 Mo. 75; Collins v. Pease, 146 Mo. 139; Harbison v. School Dist., 89 Mo. 187; Callahan v. Davis, 103 Mo. 450; Goltermann v. Schiermeyer, 125 Mo. 301. (4) It is admitted that neither plaintiff nor David Vinton was ever in possession of the land or any part thereof, although it was patented in 1860. It is also admitted that neither Vinton nor plaintiff has paid any taxes since 1869, more than thirty years prior to the institution of this suit. Then if defendant has been in possession for one year next before the bringing of this suit, as above stated, plaintiff is barred and the legal title vested in defendant. Sec. 4268, R. S. 1899; Pharis v. Bayless, 122 Mo. 116; Collins v. Pease, 146 Mo. 135; Shumate v. Snyder, 140 Mo. 77.

John C. Brown and W. D. Isenberg for respondent.

(1) The judgment of the circuit court should be affirmed. Defendant's title is void. Crane v. Dameron, 98 Mo. 567; Geer v. Lumber and Mining Co., 134 Mo. 85; secs. 923 and 924, R. S. 1899; Gravel Road v. Renfroe, 58 Mo. 265; Keen v. Schnedler, 92 Mo. 516; Webb on Record of Title (1 Ed.), sec. 23. (2) Defendant's contention that plaintiff's title is barred by the thirty-year Statute of Limitations is without merit. Schultz v. Lindell, 30 Mo. 310; Tayon v. Ladew, 33 Mo. 205; Leeper v. Baker, 68 Mo. 400; Herbst v. Merrifield, 133 Mo. 267; Rothrock v. Lumber Co., 80 Mo.App. 510. (3) Defendant pleaded no estoppel and there is no element of estoppel in this case. Bishop on Code Pleading (2 Ed.), sec. 364; Noble v. Blount, 77 Mo. 235; Throckmartin v. Pence, 121 Mo. 50; Casler v. Gray, 159 Mo. 598; Sanders v. Chartrand, 158 Mo. 352; Thompson v. Cohen, 127 Mo. 215; Garasche v. Inv. Co., 156 Mo. 436; Mylar v. Hughes, 60 Mo. 105; Black on Tax Titles (2 Ed.), secs. 509 and 513; Blackwell on Tax Titles (4 Ed.), pp. 53 and 68; Rowe v. L. & C. Co., 99 Mo.App. 158.

OPINION

MARSHALL, J.

This is a suit, under section 650, Revised Statutes 1899, to ascertain and determine the rights of the respective parties to the southeast quarter of section twenty-seven, township twenty-six north, range five west, in Shannon county. The suit was begun on March 13, 1902, in the manner provided by section 793, Revised Statutes 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, Revised Statutes 1899, touching a matter in difference between them regarding the title to the southeast quarter of section twenty-seven, township twenty-six, range five west, in Shannon county, Missouri, each party hereto claiming 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 enclosed 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, on July 21, 1869.

"That the record of the said deed from Vinton to plaintiff, together with all the deed records of Shannon county, 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 first 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, and is dated the fifth 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 tram road 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 tram road 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 tram road, 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 the sheriff's deed based on the judgment of the justice of the peace is void, but this fact is stated as bearing on the question of the non-payment of the taxes.

"It is admitted that plaintiff has tax receipt for the year 1869, but for no subsequent year, and that he would swear as a witness that he thinks he paid the taxes up to the year 1875, but it is not admitted that he did so.

"Defendant admits that it has threatened and is about to cut and remove all of the pine timber from the land in controversy and if the court finds that the plaintiff is the owner of the land in controversy, in addition to decreeing the plaintiff to be such owner, it shall enjoin the defendant from cutting or removing the timber therefrom.

"Upon the above facts the parties hereto pray the court to determine and decree the title of the parties in and to said lands.

"Jno. C. Brown, Attorney for Plaintiff.

"L. B. Shuck and W. J. Orr, Attorneys for Defendant.

"J. C. Brown, attorney for plaintiff, and W. J. Orr, attorney for defendant, being duly sworn, say the above stated controversy is real, and this submission is made in good faith, for the purpose of determining the interests of the parties herein.

"Jno. C. Brown,

"W. J. Orr.

"Sworn to and subscribed before me this 12th day of March, 1902.

"S. A. Cunningham,

"Clerk Circuit Court."

The circuit court adjudged that the plaintiff is the owner of the land and that defenda...