188 Mo. App. 71 | Mo. Ct. App. | 1915
This is an action to recover damages for an alleged trespass upon about 400 acres of land in Butler county, Missouri, and cutting1 and carrying away the timber thereon. The trial in the circuit court concerned the title to this land. The trial court found that the plaintiffs had no title and so instructing the jury the trial resulted in a judgment for defendants and plaintiffs have appealed. The plaintiffs claimed
I. It must he held that plaintiffs have the legal title to this land unless the same has been lost to them by reason of these tax suits, judgments and deeds, above mentioned. The land is timberland and has been unoccupied during all these years. No question of any Statute of Limitation or title by adverse possession is raised. It is shown that William B. Dorn, patentee of all these lands, died a resident of South Carolina in 1876, leaving a last will which was admitted to probate in that State in 1877. He devised his real estate, including this land, to his wife for .life with remainder to his children, these plaintiffs. Some objection is made to the regularity of the probate of this will'and the proof of same, but that is immaterial here. If the will is invalid for any reason or not properly probated, these plaintiffs acquired the land by descent. [Graves v. Ewart, 99 Mo. 13, 17, 11 S. W. 971.] The only difference the will makes is that if valid it gave the mother of these plaintiffs a life estate in these lands and cast on her the duty, as life tenant, to pay the taxes and her failure to do so cannot be charged against these plaintiffs, the remaindermen, as laches.
As just stated, the tax suits resulting in the tax deeds under which defendants claim title are against Amzi Rudolph and only his interest in the land was sold. There has never been any tax suit against William B. Dorn or these plaintiffs, his heirs. Their interest in this land has never been sold. They have never had their day in court. How then have they lost and defendants acquired their legal title1? The statute in force at the time the tax suits were brought, section 9303, Revised Statutes 1809', provides that such suits should be brought in the name of the State, at the relation of the collector, “and against the owner of the property.” This statute has been amended and is
It follows from this that unless-the plaintiffs or their ancestor, Dorn, were derelict in their duty in failing to file for record in Butler county, Missouri, where this land is situate, the muniments of their title, to-
The patents in question, based on an assignment of the certificate of location from, the entryman to the patentee as recited in the patent, made the patentee, Dorn, the first owner of the-fee simple title and de prived the entryman, Rudolph, of any equitable title he had in the land. Had this patent been recorded in Butler county, Missouri, then unquestionably the tax suits to have had any affect on Dorn’s title must have been against him both as the true and last record owner unless the same were brought against these plaintiffs, his heirs, after his death. This would have been true even under the decisions invoked by defendants, to the effect that, in ascertaining the last record owner for the purpose of bringing suit for delinquent taxes, the tax collector may look to the duly certified plat book, obtained by the county court from the United States land office as provided by section 11363, Revised Statutes 190:9', and a suit resulting in a sale of the land to an innocent purchaser is good when brought against the entryman shown by such plat book to be the last record owner as against one claiming under an unrecorded deed from such entryman. [Payne v. Lott, 90 Mo. 676, 681, 3 S. W. 402.] Nolan v. Taylor, 131 Mo. 224, 228, 32 S. W. 1144, was decided on the authority of Payne v. Lott, supra, though the unrecorded instrument in that case was a patent and that case might be binding here if it was the last decision of the Supreme Court on this point.
We find, however, that, under the last decision of the Supreme Court, Wilcox v. Phillips, 169 S. W. 55, it is held that a United States'patent to land is not such an instrument as is required to be recorded in the local land records for any purpose and is not such an instrument as is void as to subsequent purchasers in
. This holding is in accord with the decisions elsewhere. In Evitts v. Roth, 61 Texas, 81, 86, the court said: “A patent is notice to the world; the record of it is in the general land office.” In Sands v. Davis, 40 Mich. 14, 18, this language is used: “The record of the patent in the proper office in Washington is declared by law to be of the same force as the patent itself. [See McGarrahan v. Mining Co., 96 U. S. 316.] While our recording laws allow and encourage the record of patents in .our county registries, the failure so to record them cannot operate to injuriously affect their validity or operation.” [See also, David v. Rickabaugh, 32 Ia. 540; Sayward v. Thompson, (Wash) 40 Pac. 379; Patterson v. Langston, (Miss.) 11 So. 932; Webster v. Clear, 49 Ohio St. 392, 31 N. E, 744; 32 Cyc. 1031; 24 Am. & Eng. Ency. of Law (2 Ed.), 86.]
II. There is another view of this case equally fatal to defendants’ title. In all the cases in which it has been held that the collector in bringing tax suits could resort to the plat book of entries obtained from the land office by the county court, such plat book was one duly certified by the proper officer and admissible in evidence. It is conceded that when the tax suits in question were
III. Something is said in the briefs and arguments about the injustice of permitting those who have not paid taxes on land for forty years or more to recover in this action. The legal title to land, however, is not lost in that way. In the recent case of Chilton v. Nickey, 261 Mo. 232, 169 S. W. 978, the Supreme Court permitted the heir of the patentee of land to recover the same, although it was shown that the taxes had not been paid by his father or his heirs since 1875, a period about equal in duration to- that shown in this case. In that case the court said: “Appellant insists that the plaintiff: is barred by laches. The doctrine of laches is only applied to defeat a claim for some equitable relief. It is no bar to a claim made under a legal title. It was expressly so held in Hayes v. Schall, 229 Mo. l. c. 124, 129 S. W. 222. In no case in this State has it been held that laches is a bar to a claim made under a legal right as distinguished from an equitable claim or title. ’ ’
For the errors herein noted in not sustaining plaintiffs ’ title to this land, the case will be reversed and remanded.