96 S.W.2d 376 | Mo. | 1936
Lead Opinion
General American Life Insurance Company, a corporation, plaintiff below, appeals from a judgment adjudging title to Lots Three (3) and Six (6), otherwise described as the East half (E½) of the Northwest quarter (N.W.¼) of Section Twenty-eight (28), Township Eighteen (18) North, Range Eight (8) East, lying, being and situate in the County of Dunklin and State of Missouri, in said County of Dunklin, defendant below.
The case was instituted on November 20, 1935, and the pleadings sufficiently present the issues hereinafter discussed.
The agreed statement of facts upon which the case was submitted, insofar as deemed material, establishes the following:
The land involved is a portion of the swamp and overflowed lands within said county of Dunklin, being swamp and overflowed land on September 28, 1850, the date of the original enactment of an Act of Congress entitled "An Act to enable the State of Arkansas and other states to reclaim the `Swamp Lands' within their limits." [9 Stat. 519, 520; now Secs. 2479, 2480, 2481, R.S.U.S. 1873-1874, 43 U.S.C.A., secs. 982, 983, 984.] The provisions of said act, material here, are as follows:
"Sec. 2479. To enable the several States (but not including the States of Kansas, Nebraska, and Nevada) to construct the necessary levees and drains, to reclaim the swamp and overflowed lands therein — the whole of the swamp and overflowed lands, made unfit thereby for cultivation, and remaining unsold on or after the twenty-eighth day of September, A.D. 1850, are granted and belong to the several States respectively, in which said lands are situated: . . ."
"Sec. 2480. It shall be the duty of the Secretary of the Interior, to make accurate lists and plats of all such lands, and transmit the same to the governors of the several States in which such lands may lie, and at the request of the governor of any State in which said swamp and overflowed lands may be, to cause patents to be issued to said State therefor, conveying to said State the fee-simple of said land. . . ."
By acts of General Assemblies of the State of Missouri provisions were made for the passing of the right, title and interest vested in *292 the State of Missouri in and to overflowed and swamp lands under said Act of Congress to the several counties in which said lands were respectively situated. [See: Laws 1851, p. 238; Laws 1853, p. 108; Laws 1855, pp. 154, 160; Laws 1857, p. 32; Laws 1868, p. 68; Laws 1869, p. 66.] Plaintiff relies on a patent to the land here involved issued by the county of Dunklin, Missouri, to W.F. Shelton, Jr., under date of July 16, 1903, and subsequent mesne conveyances vesting the right, title and interest of said Dunklin County, if any, in plaintiff. Article 3 of Chapter 122, Revised Statutes 1899 — the law governing said county patent (now Art. 5 of Chap. 66, Secs. 11128-11164, R.S. 1929, Mo. Stat. Ann., pp. 4873 et seq., referred to, infra) is, insofar as material, to the following effect.
By Section 11128 all of the overflowed and swamp lands granted the State of Missouri by the aforesaid Act of Congress "are hereby donated to the counties in which they may be respectively situated, and shall be the absolute property of such counties for the purposes hereinafter designated. . . ."
By Section 11129 the several county courts are authorized to have said lands drained and reclaimed, etc.
"Sec. 11130. Whenever, in the judgment of said county court, it shall be to the interest of said counties to do so, they shall order the sheriff to sell the same at public vendue. . . . Such lands shall be sold . . . with or without draining or reclaiming the same, as in their discretion they may think most conducive to the interest of their respective counties; . . . and providedfurther, that the county courts of the several counties in this state may, if in their judgment it is deemed advisable, sell any of the swamp or overflowed lands in their counties at private sale, without advertisement as provided in this section, at a price not less than one dollar and twenty-five cents per acre. . . ."
"Sec. 11131. Whenever full payment shall be made for any of said land . . . the county clerk (court) shall cause the clerk of said court to issue to the purchaser . . . a patent for the same. . . ."
"Sec. 11156. In order to convey to the different counties in the State of Missouri a complete title to all the swamp and overflowed lands which have been granted and patented to the State of Missouri . . . (under the aforesaid Act of Congress), the secretary of state is hereby directed to prepare a patent or patents, embracing all the swamp or overflowed lands lying within the limits of the several counties of this State, conveying thereby all the title and interest of the state of Missouri in and to such lands, to the counties in which such lands may lie. . . ."
Section 11158 makes it the duty of the officers named in Section 11156 "to convey by patent or patents, as herein provided, all such *293 overflowed and swamp lands as may hereafter be patented to the state of Missouri by the government of the United States, to the respective counties in which the same may lie."
The land here involved was not surveyed at the time of the original Government survey for the reason it was covered with water at that time. Under the supervision and direction of the Commissioner of the General Land Office of the Department of the Interior of the United States of America, said land, as well as other swamp and overflowed land, was surveyed by the cadastral surveyor appointed by the Commissioner subsequent to the year 1928, and a plat thereof was filed in the General Land Office, Washington, D.C., September 24, 1930.
On December 28, 1933, the United States of America issued its patent to said lands to the State of Missouri under the aforesaid Act of Congress of September 28, 1850; and on January 24, 1934, the State of Missouri issued its patent to said county of Dunklin for said lands.
All of the conveyances aforementioned were duly recorded.
W.F. Shelton, Jr., paid to said county of Dunklin $1.25 per acre for said land at the time the patent was issued to him, and he and his successors in title paid all taxes levied against said land until the year 1927, when the title came into question.
The county of Dunklin claims title to said land under and by virtue of the patent of January 24, 1934, from the State of Missouri, and the patent of December 28, 1933, from the United States of America to the State of Missouri.
[1] Plaintiff contends that a present beneficial interest in and to said lands passed from the United States to the State of Missouri under said Act of Congress of September 28, 1850, and from the State of Missouri to said county of Dunklin at the time of the original enactment of the laws (Laws 1853, p. 108; Laws 1855, pp. 154, 160; Laws 1868, p. 68 — for the development of said law see: Simpson v. Stoddard County,
Defendant contends said Act of Congress of September 28, 1850, did not, ipso facto, pass title as a grant in praesenti; and with the title remaining in the United States until said land was surveyed and platted (and patented to the State of Missouri and to said county of Dunklin) under the authority conferred by said Act of Congress (and laws of the State of Missouri) no interim conveyance thereof passed any title thereto; and that, therefore, said patent of the county of Dunklin to W.F. Shelton, Jr., was (and remains) wholly void, and if not void, operated as a quitclaim deed and did not convey the after-acquired fee-simple title of said county.
The litigants agree that the Federal law governs the determination of when title passed out of the United States.
In the instant case, prior to the institution of the litigation, the land in question had been listed and platted and a patent therefor issued by the United States of America to the State of Missouri in accord with Section 2480, supra, and by the State of Missouri to the county of Dunklin under the provisions of the applicable Missouri law; and consequently for the purposes of this review it stands officially determined that the land involved is swamp and overflowed land within the provisions of the aforesaid Act of Congress and laws of the State of Missouri.
By the express words of Section 2479, supra, "the whole of the swamp and overflowed lands . . . are granted and belong to the several states respectively, in which said lands are situated." The words "are granted and belong" carried the grant and vesting of a beneficial interest in praesenti to and in the State of Missouri of the whole of the swamp and overflowed lands within its boundaries; and the subsequent action of the Secretary of the Interior, under Section 2480, supra, in accurately listing and platting said lands and causing patents conveying the fee-simple title thereto to issue to the State of Missouri operated merely to furnish official documentary and record evidence of the identification and title of the State of Missouri in and to said swamp and overflowed lands. Such is the interpretation placed on said Act of September 28, 1850, by the Supreme Court of the United States. Wright v. Roseberry,
Counsel for defendant cite a large number of authorities. Some state general propsitions of law not controverted by plaintiff; for instance: Before legal title becomes perfected under the Congressional grant of 1850, the lands are to be listed, platted and patented as provided by Section 2480, supra. As stated above, all this occurred prior to the institution of the instant litigation. A number of defendant's authorities involve Acts of Congress other than said Act of September 28, 1850, the specific rulings on which control here. In the Hannibal St. Joseph Railroad Co., Little, and Rogers Locomotive Machine Wks. cases, supra (cited by both parties), and Hemphill *296
Lumber Co. v. Parker,
This brings us to a consideration of the applicable Missouri law, hereinabove set out. The land here involved was "donated to" and made "the absolute property" of the county of Dunklin "for the purposes hereinafter designated" (Sec. 11128). No issue is presented, that the land was used for any unauthorized purpose. The county court of said county was authorized to sell the land at private sale for a price of not less than $1.25 per acre, with or without draining or reclaiming the same (Sec. 11130), and upon receipt of payment to issue a patent to the purchaser (Sec. 11131). The rulings of this court appear to be in harmony with the letter and spirit of said law. Linville v. Bohanan,
[2] Defendant also contends the doctrine of relation back or inurement is not applicable because the patent issued by Dunklin County operated as a quitclaim deed, or a certificate of purchase, and a covenant of warranty is essential to the passing of an after-acquired title. Under the authorities, supra, the county of Dunklin had an inchoate or equitable title in and to said land as of the date of the enactment by the Missouri General Assembly donating said land to said county and, under said Swamp Land Acts of Congress and said General Assembly, said land only needed to be listed, platted and patented to said county in accord with said acts to identify the same and vest the legal fee-simple title thereto in said county. The patent of said county to said Shelton and subsequent conveyances transferred this inchoate or equitable title of said county to plaintiff, and operated as a transfer of the rights of said respective grantors in and to said subsequently perfected fee-simple title, issuing upon said inchoate or equitable title, to said respective grantees as of the date of the respective investitures in said grantors (subject to any intervening prior rights) of said inchoate or equitable title. [See: Callahan v. Davis,
The judgment is reversed and the cause remanded with directions to enter judgment in accord herewith. Cooley and Westhues,CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur. *298