Wilcox v. Phillips

• Decision Date: 30 June 1906
• Citation: 97 S.W. 886,199 Mo. 288
• Parties: WILCOX et al. v. PHILLIPS et al.
• Court: Missouri Supreme Court

97 S.W. 886

199 Mo. 288

WILCOX et al. v. PHILLIPS et al.

Supreme Court of Missouri. Division No. 1.

June 30, 1906.

Rehearing Denied November 21, 1906.

1. COURTS — JURISDICTION — CLAIMS TO PUBLIC LANDS—STATE COURTS.

Though the state has no right to control the primary disposition of public lands belonging to the United States, yet, when the title passes from the government, the state court has jurisdiction to determine controversies between the adverse claimants thereto.

2. PUBLIC LANDS — BOUNTY WARRANTS — ASSIGNMENT.

Bounty warrants issued in recognition of service to the government are assignable.

3. SAME—ENTRY—EFFECT.

After entry of public land under a military bounty land warrant, the holder thereof is the equitable owner; the mere naked title remaining in the government until the issuance of a patent.

4. TAXATION — PROPERTY TAXABLE — PUBLIC LANDS—BOUNTY WARRANTS.

Where land has been entered under a military bounty warrant, the state is authorized to tax the same.

5. SAME.

Rev. St. 1899, § 9187, providing that government lands entered or located on or prior to the 1st day of June shall be taxable for that year, and every year thereafter, contemplates the assessment of such lands in the name of the entryman.

6. SAME—LEVY—OWNERSHIP OF LAND.

For the purpose of ascertaining the ownership of land for the purpose of taxation, the officers are not confined to what is disclosed by the registry of deeds, but may resort to the duly certified copies of entries made on the books of any register of any United States land office on file in the county, and the person who appears from such copy to have entered the land will be taken as the true owner, unless other records of the county show the title to be in some other person.

7. SAME—SALE OF LAND—TITLE OF PURCHASERS.

Within the meaning of the registry act, a patent from the government is not different from any other muniment of title, and, like a deed, must be filed and recorded; and if, by failure to so file and record, the property is assessed to the entryman, the rights of the purchaser at a tax sale must prevail.

Appeal from Circuit Court, Sullivan County; Jno. P. Butler, Judge.

Action by William A. Wilcox and others against J. E. Phillips and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Wattenbarger & Bingham, Calfee & Eubanks, and Campbell & Ellison, for appellants. Wilson & Clapp and A. W. Mullins, for respondents.

GRAVES, J.

The facts in this case were elaborately and correctly stated in the opinion first filed, by Marshall, J., which statement, after careful examination, we adopt. The statement follows:

"This is an action in ejectment to recover the south half of the northwest quarter, and the northeast quarter of the southwest quarter of section 3, township 63, in Sullivan county. The ouster is laid as of the 15th of March, 1902. The answer admits the possession of the premises by the defendants, but denies all the other allegations in the petition. The action was originally instituted against the defendants Phillips and Reed. Afterwards, on their own application, John M. and Arthur D. Campbell were made parties defendant, and filed a separate answer, in which they admitted that the defendants Phillips and Reed were in possession at the commencement of the suit, deny all the other allegations of the petition, and then affirmatively plead that, on the 19th of October, 1900, the land was sold by the sheriff, under a judgment for back taxes, in a suit against William H. Brownlee, and that the said defendants (Campbells) became the purchasers at said sheriff's sale, and afterwards, on the 15th day of March, 1902, sold the land to the defendants Phillips and Reed, and that by virtue of their purchase at the sheriff's sale they became the owners of the land. The cause was tried on the 10th of April, 1902, by the court, a jury being waived, and judgment was rendered for the plaintiffs for possession, and for $20 damages, and $3 a month rental value. After proper steps the defendants (Campbells) appealed.

"To sustain the issues on their behalf, the plaintiffs proved that they are the heirs of Abbie D. Wilcox, who was the wife of William Lucas Wilcox. Abbie died October 26, 1884, and William died in June, 1889. The plaintiffs next introduced into evidence a patent to the land in controversy from the government of the United States, dated the 16th of June, 1860, which recites that: `In pursuance of the act of Congress, approved March 3d, 1855, entitled "An act in addition to certain acts granting bounty lands to certain officers and soldiers, who have been engaged in the military service of the United States," there has been deposited in the General Land Office, warrant number 31,879, for one hundred twenty acres, in favor of Charles Jones, private, Captain Alsbery's company, Kentucky Militia, War of 1812, with evidence that the same has been duly located upon the northeast quarter of the southwest quarter, and lot numbered 1, of the northwest quarter of section 3, in township 63, of range 18, in the district of lands formerly subject to sale at Milan, now Boonville, Missouri, containing one hundred and twenty acres, according to the official plat of the survey of the said land returned to the General Land Office by the Surveyor General, the said warrant having been assigned by the said Charles Jones to William H. Brownlee, in whose favor the said tract has been located and the certificate of said location having been assigned by him to James Montgomery. Now, know ye that there is therefore granted by the United States unto the said James Montgomery as assignee as aforesaid and to his heirs, the tract of land above described, to have and to hold the said tract of land with the appurtenances thereof, unto the said James Montgomery as assignee as aforesaid and to his heirs and assigns forever.' This patent was recorded in the office of the Recorder of the General Land Office, and was filed for record in the office of the recorder of deeds for Sullivan county on the 2d of August, 1902. And plaintiffs then showed a conveyance of the land from James Montgomery and wife to Leroty Martin, on the 18th day of May, 1864, which was recorded in Sullivan county on the 11th of March, 1866; and likewise a conveyance from Martin, a single person, to Hercillia G. Bradbury, on the 11th of June, 1878, recorded on the 13th of June, 1879; also a conveyance from said Bradbury to Abbie D. Wilcox, dated January 7, 1879, recorded January 13, 1879. The plaintiffs, also ordered evidence showing that they, or their ancestors, paid taxes on the land for the years 1882, 1883, 1885, 1886, 1887, 1888, 1889, 1891, 1892, 1893, and 1894. They further introduced evidence tending to show that the land was never fenced, but is what is denominated `brush land,' and that the defendant Phillips and Reed, since they entered into possession, fenced some of it, cleared a portion of it, and put a part into cultivation and perhaps built a house upon it. This was all the evidence offered by the plaintiffs in chief.

"To sustain the issues on their behalf, the defendants introduced a certified copy of the tract book of the Register of the Land Office at Boonville, Mo., showing that on June 13, 1857, William H. Brownlee entered the land, and that a copy of such entry was recorded in the recorder's office of Sullivan county. The plaintiffs objected thereto upon the ground that the patent issued by the United States to James Montgomery was superior to the entry of the land as shown by the certificate. The court overruled the objection, and the plaintiffs excepted. Defendants next offered in evidence the files in the tax suit, which ran in the name of the Treasurer and Ex Officio Collector of Revenue, against James Montgomery, William H. Brownlee, and Abbie D. Wilcox, and which was filed on the 5th of December, 1899, for the taxes for the years 1895, 1896, 1897, and 1898; also the summons and return thereon, showing personal service on William H. Brownlee, on the 26th of February, 1900; also the judgment role from which it appeared that no service of any kind was ever had on the defendant James Montgomery, and that the service was by publication on Abbie D. Wilcox, who had, as previously stated, died on October 26, 1884; the order of publication being based upon the allegation that she was a nonresident of the state. The defendant also introduced the deposition of William H. Brownlee, a man 70 years of age, who testified that he entered land in Sullivan county in 1857, but that he could not state the section, township, or range of the land entered by him. He also stated that he had received patents for the land entered by him. He likewise stated that he had no recollection of the sheriff serving the summons in the tax suit upon him, but that he did not doubt the truth of the sheriff's return. The defendants then read in evidence the sheriff's deed in the back tax suit, purporting to convey the interest of James Montgomery, William H. Brownlee and Abbie D. Wilcox, to the defendants John M. and Arthur D. Campbell—the deed being dated October 20, 1900. The plaintiffs objected to the deed upon various grounds, among them that the judgment roll and the files in the back tax suit showed no service upon the defendant James Montgomery, and that the services by publication as to Abbie Wilcox was void, because she had died in 1884, some 15 years before the suit was instituted; and, further, on the ground that the certificate of location of the land conveyed no title to Brownlee, but that the title remained in the United States, until the patent was issued, and that as that patent was issued to Montgomery, as assignee of Brownlee, who was the assignee of Jones, the soldier who was entitled to make the entry, the title never passed out of the government until the patent was issued. The court overruled the objection, and the plaintiffs excepted. The defendants also...