Wilcox v. Phillips

• Decision Date: 21 November 1906
• Parties: WILLIAM A. WILCOX et al. v. PHILLIPS et al., Appellants
• Court: Missouri Supreme Court

97 S.W. 886

199 Mo. 288

WILLIAM A. WILCOX et al. v. PHILLIPS et al., Appellants

Supreme Court of Missouri, Division One

November 21, 1906

Appeal from Sullivan Circuit Court. -- Hon. Jno. P. Butler, Judge.

Reversed and remanded.

Wattenbarger & Bingham, Calfee & Eubanks and Campbell & Ellison for appellants.

(1) Section 9187, Revised Statutes 1899, provides as follows "Government lands entered or located on or prior to the first day of June, shall be taxable for that year, and for every year thereafter." This statute has been on our books for many years and never until this decision, to our knowledge, has the right of a State to tax lands from the date of entry been questioned. The following cases seem to us to settle the question beyond cavil: Witherspoon v Duncan, 4 Wall. 210; Railroad v. Price County, 133 U.S. 692; Carroll v. Stafford, 44 U.S. 441; Widdecombe v. Childers, 124 U.S. 404; Egbert v Bond, 148 Mo. 23; Hadrick v. Beeler, 110 Mo. 91; Wilhite v. Barr, 67 Mo. 284; Callihan v. Davis, 90 Mo. 78; Johnson v. Fluetsch, 176 Mo. 470; Wirth v. Branson, 98 U.S. 118; Stark v. Starr, 73 U.S. 402. (2) At the time the suit for taxes was brought, the apparent record owner of the land in controversy was William H. Brownlee. The patent issued by the Government to this land in 1860 was not placed on record until 1902, almost two years after the land was sold for taxes. Neither was the assignment of the certificate of entry placed on record until that time. Brownlee, the only apparent and record owner of this land, was made a party to this suit and was personally served with summons. Appellants bought the land at the tax sale and received a title paramount to the holder of an unrecorded patent of which appellants had no notice, actual or constructive. We, therefore, stand on the doctrine laid down in Vance v. Corrigan, 78 Mo. 94; Allen v. Ray, 96 Mo. 542; Payne v. Lott, 90 Mo. 676; Lucas v. Land & Cattle Co., 186 Mo. 456; St. Joseph v. Forsee, 110 Mo.App. 127. The tax collector has a right to resort to the plat book on file in the recorder's office to ascertain the ownership of lands. State ex rel. v. Sack, 79 Mo. 661; Watt v. Donnell, 80 Mo. 195; Cowell v. Gray, 85 Mo. 169. The plat book being made admissible in evidence means that it must be of some importance in determining the ownership of lands. Wilhite v. Barr, 67 Mo. 284. (3) The deeds offered in evidence by respondent from Montgomery to Martin, and from Martin to Bradbury, and from Bradbury to Wilcox were outside the chain of title and did not impart notice of title to any one. Tidings v. Fitcher, 82 Mo. 379; Becker v. Strother, 167 Mo. 306; Bank v. Bank, 171 Mo. 327; 16 Am. and Eng. Ency. Law (1 Ed.), 800.

Wilson & Clapp and A. W. Mullins for respondents.

(1) The fee of land disposed of by the United States remains in the Government until the patent issues. Carmon v. Johnson, 20 Mo. 108; Le Beau v. Armitage, 47 Mo. 138; Sands v. Davis, 40 Mich. 14. (2) A patent is a better legal title than an entry. Delassus v. Winn, 174 Mo. 636. (3) The patent was recorded in the General Land Office. This was notice to the world, and was conclusive that the legal title vested in the patentee. R. S. U.S. sec. 458; Evitts v. Roth, 61 Tex. 81; 20 A. & E. Enc. Law (1 Ed.), 530; David v. Rickabaugh, 32 Iowa 540; Webster v. Clear, 49 Ohio St. 392. (4) A judgment recovered in a suit begun and prosecuted against a dead person is void. Graves v. Evart, 99 Mo. 13. (5) The heirs of Abbie D. Wilcox, not having been made defendants in the tax suit, the tax proceedings did not divest their interest, and they are entitled to recover in this action. Walcot v. Hand, 122 Mo. 621. (6) Brownlee was not the apparent owner of the land within the meaning of the statute; Abbie D. Wilcox was the apparent owner, and her heirs the real owners. Sec. 9303, R. S. 1889; Vance v. Corrigan, 78 Mo. 94; State ex rel. v. Sack, 79 Mo. 661; Allen v. Ray, 96 Mo. 542. (7) The deeds of Montgomery, Martin and Mrs. Bradbury, being recorded, imparted notice to all persons of the contents thereof, and the defendants purchased with notice. Secs. 923, 924, R. S. 1899. (8) United States patents may be recorded in the county where the land is situated. Recording them, however, is not compulsory and their recording does not impart notice as in the case of deeds. Secs. 923, 924, 9077, 9078, R. S. 1899. (9) The purchasers at the tax sale bought only the right, title and interest of Brownlee, who never was at any time the owner of the land; and a sheriff's deed conveying his right, title and interest conveyed nothing in reality. Watt v. Donnell, 80 Mo. 195; Powell v. Greenstreet, 95 Mo. 13; Blevins v. Smith, 104 Mo. 583; Moore v. Woodruff, 146 Mo. 597; Wood v. Smith, 91 S.W. 85.

OPINION

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 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, 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 in 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 3rd, 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 31879, for one hundred and 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 2nd of August, 1902.

"And plaintiff then showed a conveyance of the land from James Montgomery and wife to Leroy 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 7th, 1879, recorded January 13th, 1879.

"The plaintiffs also offered 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 defendants 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, Missouri, showing that on June 13th, 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...