Hooke v. Chitwood

127 Mo. 372 | Mo. | 1895

Macfaklane, J.

In the year 1888, defendant Chitwood purchased from defendant Jasper county, certain swamp land described as the west half of lot 1, northwest quarter of section 6, township 29, range 33, in said county. Plaintiffs, as the heirs- of Henry M. Hooke, deceased, prosecute this suit in equity to set aside this deed and to vest the title to the land in themselves.

They charge in their petition that in February, 1858, one George E. Ward purchased of said county a large quantity of swamp land, including that in question, for which he received a certificate. The terms of the contract were that, when said Ward should pay the purchase price and interest on said land, or any portion of it, deeds should be made to himself or his assigns. In 1859, the said Ward sold to the said Henry M. Hooke, plaintiffs’ ancestor, with other land, the tract-in controversy. After plaintiffs, as the heirs of said Hooke, had made full payment, according to the terms of the contract, the county by deed in due form undertook to convey the land to plaintiffs, but by mistake omitted therefrom the land in question. This deed was dated in 1868. They charged further, that they had paid taxes on the land since their purchase in 1859, and up to 1888, the date of defendant Chitwood’s purchase from the county. They charge, further, that, on the twenty-fourth day of May, 1888, the county sold and by deed conveyed to defendant Chitwood who had full notice of their equity.

On the trial the records of the county court, setting out the sale to Ward, and the deed from the county to plaintiffs, were read in evidence. In neither of these was the land in question described. Evidence was introduced tending to prove that the land was known in the neighborhood as a part of the Hooke tract, and also that plaintiffs paid the taxes thereon for the time claimed in their petition, of which defendant had notice when he purchased. Plaintiffs nor their ancestor ever had the actual possession of the land, nor was any kind of improvements made thereon by them. There was no evidence tending to prove that this land was included in that purchased by Ward from the county, or that this tract was omitted from the order of the county court by mistake. The only evidence that could have a possible bearing on the question was the fact that the purchase of Ward included over seventy-five thousand acres of land.

The fact upon which plaintiffs chiefly rely for the relief demanded, is that the deed declared the quantity of land conveyed as being three hundred and ten acres, for which they paid the stipulated price per acre, when, as they say, the land conveyed fell short of that quantity some twenty acres. Defendants on the other hand claim that by including this land plaintiffs will have eleven acres more than the quantity called for in their deed. The sections are fractional, and the quantity of land is not given.

We are of the opinion that plaintiff made- no case for equitable relief, and that the judgment of the circuit court, which was for defendants, should be affirmed. The right of plaintiffs to a conveyance from the county is derived from the contract of sale by the county court to Ward. They can claim no more than Ward, their assignor, acquired from the county. The land in question was not included in that contract, nor was there a particle of evidence that it was in fact included in the sale, but- omitted from the order of the court through mistake or inadvertence.

Nor is there any evidence that, when the county made the-deed to plaintiffs, it intended to convey this land also. The only evidence that it intended to convey more land than was actually described is found in the recital contained in the deed that the land thereby conveyed contained three hundred and ten acres more or less, and that they paid ninety cents per acre for that quantity. Such recital may aid in construing a deed in which the description is ambiguous or doubtful, as in Davis v. Hess (103 Mo. 36), but can not be held sufficient, standing alone, not only to prove that the intention was to include other lands, but also to identify the land intended. The land as described in the deed was the “E. \ lots 1 and 2 of N. W. qr. sec. 5, T. 28, R. 33; and the S. -§- N. E. qr. sec 32, the E. -J- N. W. sec. 32 and the E. -§■ S. W. sec. 32, tp. 29, range 33. Containing 310 acres more or less.” In this description it is impossible to find an intention to convey thirty-one acres in section 6.

It may be that the neighbors, and plaintiffs themselves, thought the land in question was described in the deed and understood it to be apart of the tract, and the repute thus given it may have become important in proving notice on defendant Chitwood, if plaintiffs had shown themselves vested with an equity which they could enforce, but it is not evidence that the county had sold and intended to convey it to plaintiffs.

The lands belonging to the county could only be sold and conveyed in the manner pointed out by the statute. For the purpose of managing and selling swamp land the county court is not the general agent of the county. The statutes constitute the warrant of •authority. Sturgeon v. Hampton, 88 Mo. 213. Much less could the county be estopped to assert title by the fact that the county court had levied, and the collector had collected, taxes upon the lands over which the court is given control. Judgment affirmed.

All concur,.