Fleming v. Wilson
211 S.W. 73
Mo.
1919
Check Treatment
BOND, C. J.

I. Plaintiff sues to quiet the title to a certain eighty acres of unimproved timber land in Pemiscot County, Missouri, alleging that defendant claims some right, title, estate or interest adverse to him.

The answer, was a general denial, coupled with an allegation of title in defendant, and a plea of abandonment, estoppel and laches on the part of plaintiff..

Plaintiff’s claim of title dates from a patent to the State of Missouri, under an act of Congress, approved September 28, 1850, followed by a conveyance to Pemi-*576scot County by the State of Missouri. The next link is a patent from Pemiscot County to Alexander Barnes, and then follows a devise by said Barnes to bis wife Agnes, a.deed from Agnes Barnes (Cropper) and ber husband to H. G. Mcllravy, from whom Plaintiff Fleming purchased. This latter deed bears date of June 24, 1890, but was not filed for record until the nineteenth day of March, 1895, five years after plaintiff purchased the land.

Defendant Nettie Wilson claims title in this way: In 1889 H. G. Mcllravy morgaged the land to one Agnes Cropper, and on September 3, 1895, the land was sold for taxes to R. P. Michie and R. B. West. Thereafter West sold his interest to William Hunter, and on September 4, 1897, R. P. Michie purchased the interest of William Hunter. Later said Michie died and left defendant, Nettie Wilson, his widow, and she, electing to take a child’s part, this eighty acres of land was set apart to her.

The testimony of Plaintiff Fleming shows that he led a roving- life, going from Illinois to Missouri, thence to Arkansas, Texas and Alaska, but final] 5^' locating in Oregon in 1901, where he has lived until the present time; that he bought the land in controversy on June 24, 1890, from H. G. Mcllravy for one thousand dollars, and assumed a mortgage of about two hundred and fifty dollars; that later (about 1892) he exchanged eighty acres of this land with one Denham for land in Illinois, and at that.time it was discovered the Mcllravy deed had not been recorded; that Denham took both deeds with the understanding that he was to have them recorded; that he (plaintiff) was unable thereafter to get in touch with Denham, although he wrote to him at various times and addresses; that he left the land in charge of his sister and believed she or Denham would see that the taxes were paid, particularly as he had given Denham permission to use the balance of his land adjoining his eighty acres “if he would fix it up, clear it and pay the taxes until lie got it where *577it would pay, and when it would pay my sister would settle with him for whatever rent there might he coming for the use of the land;” that when he heard of his sister’s death he tried to find her papers and failing to do that he employed an attorney to look into the matter. This suit resulted.

Defendant’s testimony shows that H. G. McIlravy mortgaged the land in 1889 for two hundred and fifty dollars to one Agnes (not Eugene) Cropper; that on September 3, 1895, the sheriff sold the “interest of H. G. Mcllravy and Eugene Cropper, mortgagee” in said land, to one R. F. Michie and R. B. West, to cover taxes of the years 1890 and 1892, and' it is from this source that defendant’s title runs.

At the close of the evidence a verdict was directed in favor of plaintiff. Defendant duly appealed.

II. There are, in the ultimate analysis, only two questions presented by this appeal: first, whether or not plaintiff got the title to the land in controversy of the admittedly common ancestor, Mcllravy; second, if so, whether he Avas barred in the assertion thereof by laches, estoppel or abandonment:

Misprision. As to the first: the record shows that on June 24, 1890, H. G. Mcllravy executed a warranty deed, subject to a mortgage of two hundred and fifty dollars, conveying the land to plaintiff. This was done in St. Louis and the deed was acknowledged there before a notary public of that city, whose certificate shows that the grantor, a single man, acknowledged the deed on the “24th day of June, 1895” (italics ours); that his terms as a notary would expire on “March 31, 1893.” The deed further shows that it was filed for record March 19, 1895. Obviously the italicised figure “5” in the above statement of the date of the acknowledgment was a mere misprision, for the figure “0” so that the completed statement should have been written, “24th day of June, 1890.” This is apparent from the context which shows that the office *578of the attesting- notary expired on March 31, 1893, and the further showing that the deed as acknowledged was actually filed for record on March 19, 1895; both periods of time being antecedent to the erroneous date given by the notary. In addition to this contextual showing, the answer of the defendant admits “that he [plaintiff] obtained a deed to said land on the 24th daw of June, 1890.” The face of the deed, the foregoing recitals of its acknowledgment, the expiration of the office of the notary, the recited date of its filing for record, and the admission of the obtention of the deed in the answer, conclusively show that it was completed and delivered to plaintiff on June 24, 1890. This fact was determinable from the face of the deed and the admissions in the pleadings and, therefore, presented no issue for a jury.

Tax Sale. As against the record title thus established in plaintiff by the deed of the common grantor, the record title relied upon by defendant was wholly unavailing; ^or timt title was derived only from a sale for taxes, the date of which was after the recording of the deed. Hence it invested the purchaser with no title whatever as against the grantee in the prior recorded deed. [Sugg v. Duncan, 238 Mo. l. c. 426, et cases cited; Russ v. Sims, 261 Mo. l. c. 53.]

*579Estoppel *578It is uncontroverted that the sale for taxes was not made until September 3, 1895, hence about six months after the recording of the deed to plaintiff. The plaintiff was not a party to the suit for taxes, and the only defendants were Mcllravy and a misnamed mortgagee.. The real mortgagee was Agnes Cropper. The person named in the tax suit was Eugene Cropper. The muniment of title acquired by plaintiff by the deed to him from H. B. Mcllravy, vested plaintiff with the equitable ownership of the land therein described in fee, since the naked legal title had been conveyed to secure .the incumbrance of two hundred and fifty dollars, subject to which the land was sold. The land itself was not in the possession of any one; it was a' *579hole filled with water until about June of each year, not smsceptible of tillage and no improvements were made npon it by defendant or those under whom she claims. [Russ v. Sims, 261 Mo. l. c. 55.] The delay of plaintiff in the assertion of his rights of ownership has not prejudiced defendant in the proof of her title; for the defective records upon which it rests have not been destroyed and still exist and were adduced in evidence on the trial. [Toler v. Edwards, 249 Mo. 152.]

It is not pointed out that any element of estoppel has been created by the conduct of the plaintiff in this ease. [Dameron v. Jamison, 143 Mo. 491, 492; Bales v. Perry, 51 Mo. l. c. 453, 454; Blodgett v. Perry, 97 Mo. l. c. 273; Collins v. Rogers, 63 Mo. 515; Guffey v. O’Reilly, 88 Mo. 418.]

And we have been unable to find any substantial ground to support the defense of laches or abandonment: [Myers v. DeLisle, 259 Mo. 514.]

The judgment of the circuit court is, therefore, affirmed. ' It is so ordered.

All concur.