*1 Yol. 1919.
Kline v. Groeschner. ex rel. v. Pedigo Court announced Banc State the it is our to dismiss duty S. Robertson, 181 W. ;. ease. All concur. is so ordered. to AMOS H. Heir Successor KLINE, JAMES Ap GROESCHNER, HERMAN C. PHILLIPS, . pellant Two, 1920. March
Division Conveyance. Subsequent Certificate 'to Purchase: LAND: 1. COUNTY county county paid belonging the a is sold Where land county purchase, for, purchaser the receives a certificate of and the person. powerless convey will it another Nor is there after patent, it to issue the failure of the officer whose is statutory requirements, purchaser’s title affect conform to right. that -: of Patent. Where is shown Proof Loss dead; patent for it 1859 is that search issued in owner made; in the recorder’s the last time it was seen was burned, office; at a time when court house was lodged patent probably office, that all recorder’s patent destroyed papers fire, the loss were such sufficiently for. accounted County 3. -: Record Clerk’s Office:Mistake in Record. Patent: (Act 1857) The statute makes the record of title; only prima-face evidence of land in the clerk’s office adversely patentee, defendant, claiming to the- offers and where evidence, attempt uncertified show an record proof has offered of his as correctly conveyed by does not -the lost describe land description er- in the record can shown that roneous, showing may testimony, and -that made oral be by. showing corroborated the later list lands therein; land be- described was not included question ing a and the evidence fact in an action at law sub- stantial, finding by the trial court that the lost described do- and its record in the clerk’s office . scribing mistake, in Section not be disturbed as 15 was a will appeal; nor will it be no other ruled that long was admissible as as the clerk’s office record in accessible. patents 4. -: 'Two Patents. Where two issued for the same are regular face, prior lands, pre- on their one both must subsequent over vail one. MISSOURI. COURT OF SUPREME Kline Groeschner. regard general Recording statutes in -: Patent: Notice. apply recording affecting land do not the title to instruments recorded, conveyances may State. Such *2 affecMng vesting not de- notice is but their effect in title and as pendent upon being are their Where successive recorded. land, question priority county for the same issued right not is one of notice. Validity: Affecting by County Recording
6. Clerk: -: Patent patent county duty for Notice. It is the of the to to office it is delivered lands recorded before (in his vality, patentee, prerequisite nor it the its is but that is not a to recorded, patentee correctly see that the is to necessary purpose nor for to make a record for is him any imparting notice, court nor constructive has power paid convey swamp for cor- which has .been rectly incorrectly described but described county élerk’s record. Swamp Showing 7. -: Land 'statute Abstract: Patentees. The requiring in a filed abstract of land® to be office, require to show does not the. abstract patented by county, to whom the land was to show but_ county acquired. the lands which for LIMITATIONS: Suit Within Ten A Years. failure sue years right accrued, lands within ten does after the to sue has not bar an action under Statutes Revised quiet title. action, 9. -: Dismissal: not Not Renewed a Year. An Within within, brought recovery year one after a former action for the action, dismissed, barred, of the same lands is not if dismissal, without such would not be Re- barred. Section saving simply prevent vised Statutes clause applicable. bar which otherwise would be Thirty-Year 10. -: Under Statute. To bar an action under the thirty-year (Sec. 1909) Statute of Limitations S. .R. necessary prove plaintiff possession for has out of been thirty years, possession that defendant has been in lawful for year plaintiff paid thirty at least one has not taxes for years. wild, Where the lands are one no has ever been possession, apply. the statute not does applied only 11. LACHES: Action at Law. Laches is to defeat a equitable claim recovery some , relief. To an action at law for the land, against in his defendant answer asks equitable relief, for no laches is not a defense. 12. ESTOPPEL: No Alteration of Positions. If it not is- shown defendant, something did which misled or-that defendant OCTOBER TERM, Yol.
Kline v. Groeschner. thereby upon something done altered relied position, estoppel plaintiff’s righjt recover. does affect Placing mortgages debts, and the lands to secure individual securing drainage a contract ditches from to construct affecting estoppel. land, element of contain no Appeal Cape from of Common Girardeau. Court Pleas. Judge. Snider,
—lion. JoJin A.
Affirmed. appellant. Sharp
E. <&Oliver for F. and Oliver (1) Shapley The act under which the Phillips provision no made in 1859 for. being recorded in the recorder’s office. execution acknowledged officer, before required “proven nor was the of it to be ac execution *3 registration cording in It not entitled to law.” copy therefore, was not of it, recorder’s office. A any purpose. It is in for evidence admissible conveyances “ac that have been copies or of deeds according lawto knowledged proven or and recorded” and under Sec. in evidence are admissible . 1900; Mosher 10381, R. R. S. 1909 Sec. S. 6314, Property of Real on Law 357; 229 Mr. Jones Bacon, Conveyancing, p. 2792, 2799; 2800; 2803, Secs. ;269 copy in (2) it admissible was a Nor R. S. It 1909. was R. 2818, S. 2819, under Secs. evidence “acknowledged proven, in the recorded, certified v. Johnson, prescribed law.” Hammond manner (3) act The R. 2819, S. Mo. Secs. 208; 185(7, February in the made the record approved copy county of that authenticated or an clerk’s office patent original legal equivalent record patent evidentiary purposes. act itself recites the The its limitations issuance, defines which authorized grantees. passed to the under conditions which mandatory. provides that is that act of3 delivery in patent “before recorded shall . same,” issuing the courts office SUPREME COURT MISSOURI. OP Kline v. Groeschner. patent
same section makes the record which the copy or an recorded, authenticated record, from origi in all courts. in of the So, absence patent county nal the record of it in the clerk’s office ' from) copy or an authenticated is the best admitting copy and the evidence, court erred of it (4) from the recorder’s office. An examination patent County record book Madrid of New day discloses the fact that on 30th November, Shapleigh Phillips bought 480 acres of land range township section 15, 15—not 13. That record purchase that the shows certificate of the number given identical 310, the number recorded in county office, December recorder’s 1902. The perfect court’s record of that is in a state of preservation. There no erasure, mutilation, blur, spoliation change or other iton whatsoever. The stat ute under the rec issued makes ord of it office evidence all courts. It is, in the of the therefore, absence best and the court erred in evidence, admit from) ting alleged copy of it the recorder’s office 1902,. copy made December 15, recorder’s office clerk’s office are iden quantity tical as to number of date, of land certificate, conveyed, every respect except other the record clerk’s office. The puts range clerk’s office the land in 15', while the puts range from the recorder’s office it in pre lo. The record in the clerk’s office should *4 p. (5) (without Assuming vail. Laws 1857, 271. ad mitting copy it a fact) that the from as the recorder’s might, office under certain circumstances, used as showing still evidence, there was not a sufficient made part on of the loss or destruction of original patent as authorize the would introduction Murrian, of the in this case. Barton v. 27 Mo. Christy Cavanaugh, 240; v. Mo. 375, 377; 45 Pierce Georger, (6). Mo. v. 103 543. Under the Act of the made 1857, it was to record . 603 Vol. 1919.
Kline Groeschner.
v.
is
this
it
delivered.” This
shown
“before
desig
to have been
officer
done at
the time
by the
absence
nated
insist
in the
statute,
we
in that office or an
record
best
if not the
evidence,
is the
authenticated
only record
available. An examination of
now
authority
given
will
for
statute
show that no
is
recording of a
from the
court. Laws
p.
v.
163;
1909;
Bacon,
Mosher
Sec.
S.
quiet
(7)
en
Kline v. Groescliner.
estoppel
only applied
a claim for some
defeat
made,
equitable relief.
It is no bar
a claim
under a
legal
Hayes
title.” Chilton v.
Mo.
v.
243;
Nichie,
Schall, 229
124;
Mo.
Lumber Co. v.
229'Mo.
McCable,
Terry
182;
v.
258 Mo.
droves,
478;
v.
Dunnivant
Cooperage
App.
Co., 188 Mio.
95; Harrstick v. dabriel,
(3)
WHITE, is under C. This Section Re vised to determine title Statutes to the southwest quarter Township Range of Section 13, New County, general Madrid Missouri. The after a answer, pleads denial and an averment of title defendant, ten-year thirty-year Statute Limitations, estoppel, laches and Limitations, Statute of and facts it is claimed bar the action limitation under Revised Statutes 1909. There was a judgment plaintiff determining title in him, de appealed. fendant appears from the briefs that both controversy
parties through claim New Madrid County having as the common source of the title, Yol.
Kline Groesctmer. patented by tbe State *6 been tbe United States 1850, Swamp Act Missouri in under the Land 1856, County by in and the Madrid of Missouri to New State by executed Patent No. 310, claims under Plaintiff conveying County, the 1859, Madrid November 30', New quarter Town 15, Shapleigh east half the southwest of Section and Phillips. Shapleigh ship Range R. IS, 22, R., partition proceeding Phillips died intestate and adjudged to among set his was off and heirs the Phillips Phillips. the in after Amos R. died Amos R. heir, James Kline, this suit, stitution of plaintiff. him as succeeded un- from two claims
The defendant sources: by deed, a commissioner executed der a commissioner’s County, un- also 10', 1881; for New Madrid November County by to John Madrid der Himmelberger, issued New a together with These, June leading up com- the to the issuance the^proceedings missioner’s patent, evidence; in offered were deed subsequent proceedings conveyances also mesne was vested both sources it is title from which, claimed, the defendant. in No. Patent offered evidence
When the Phillips, County Shapleigh MaJrid 310 from New patent. copy This was offer was certified incompetent objected on several as the defendant required grounds: the law because the office to be recorded delivery, precedent clerk as a condition copy evidence, now which offered was and therefore recorded that office had never been patentee; conveyed because title to the no not ac- was best evidence and was origi- of the and because in absence for; counted the record of the best evidence next nal required kept in the which is objections overruled were office. These alleged around errone- evidence; admitted SUPREME COURT MISSOURI.. OF Kline Groeschner. ruling principal argument
ous contest case revolves. (cid:127)
The defendant offered then showing clerk’s office of Patent No. 310, Township that the land covered Section Range 15. swamp list lands in offered County required New Madrid to be filed in officeof court, called, “The Swamp County,” Abstract of Land Madrid show- New ing Range Township as land. Plaintiff further evi- listed offered quarter dence to show that southwest of Section 15, *7 Range Township by Shapleigh R. was entered Phillips improved in 1836i and had farm, and was an always therefore, been known as and such, not, was swamp patented land; could been Shapleigh Phillips R. in as such.
Murray Phillips of was sworn behalf grandson Shapleigh testified that he was the of R. Phillips: original patent said he once saw No. papers. among grandfather’s 310; he found it He being aware then that “the title was was claimed” and compared he went to office original patent appeared with the record which there of Patent No. 310. He found the record in Range office showed the when 15', in original 'patent Range showed was in 13, indicat- ing was written in mistake; the 15 the record original. otherwise, exact This then delivered him to Amos Phillips latter had it recorded the office (cid:127) the recorder of deeds. Just when this occurred does clearly appear from evidence. courthouse Madrid burned New it was 1901-1995, and that the was burned at that inferred time. controversy The land in was wild never land, had possession never been cultivation, had been any improvements placed person, fenced, nor nor Yol.
Kline Groeschner. ownership either oil it. shown acts of party at, looked that it had visited _been grantors parties several executed had both and their affecting conveyances mortgages it. Some and other parties payment toas both offered considering de- noticed this will taxes, and Limitations. of the Statute fenses appellant claims determines I. The law which parties rights act the is the case, February approved Assembly of Missouri General pp. “An entitled, 271-272', of Missouri Laws Swamp Disposal of Relation Act Copy provides act Lands.” The first section of the of Patent. courts of certain coun- when the including ties, New be satisfied Madrid, shall payment full has lands un- been made authorizing they der the shall cause act the same, purchasers. be issued to provides 2 of the form of the act manner of shall and that such execution, convey grantee to the named the title the therein all acquired under the acts Gen- has several Congress Assembly eral of 1850. ánd the Act of Sec- tion the act S' of is as follows: delivery
“3. shall be recorded before Such *8 issuing the same, the of of the courts in office the clerk clerk, by such and such the record thereof, and by any deeds, or other officer authorized to record and writing, copies of and of rec- other instruments such duly ords, shall be received evidence authenticated, ‘places, and courts, mariner, in all other the same and may fully pur- be used as for all and effect, like with by poses States, as for lands United the proven acknowledged, duly or or the record or deeds State, received, the or can be used this of same are courts, and in all and other times, shall at all and prima-facie places, of as evidence title to be received named.” estate therein the and real lands follows; as Section MISSOURI. SUPREME COURT OF
Kline Groeschner. this State “It shall of of the the Governor be as counties, to to of cause be furnished to each said practicable, in the soon lands as a of all list the county, in the of list be recorded office which shall of deeds, of recorder filed the office public copies county record, be a court, shall prima- be thereof, said or of record shall list, are lands lands therein facie evidence described by granted by Congress aforesaid, as to this State by said said donated the several counties State such, 'as several be received acts, shall places.” other all courts and appellant that under Patent claims validity or until in the was of no force recorded No. 310 required not be re- office. That clerk’s was anywhere and the evidence of the ex- else, corded of a and its terms be either the istence would copy original patent, or record of same, ^ appears the office of the clerk such as record copy of Patent court; that therefore incompetent. No. 310 offered appear whom this made and cer- does presented questions thus court were tified. for; whether the loss was accounted copy; purported and, correct whether was a in the bet- whether the office original patent of the contents than ter evidence proven. copy, however other required is conceded that .It recorder’s office. It be recorded held v. Bacon, Mosher 229 Mo. where court case belonging county, is sold land purchaser pur paid receives certificate of for, and powerless convey "it thereafter chase, receiving purchaser person. The the certificate another equitable purchase would would against all the world. It was further decided good purchaser has no c. control l. case, in that over the state nor whose office, officers, over duty *9 patent require- conform to the a issue is to Yol. 280] OCTOBER TERM, 4919.
Kline Groeschner. ments of the law, failure do the of officer such respect purchaser’s in that a affect would right or title. n objection original patent that the loss of the was not accounted for is not taken. It well was shown that the Phillips, owner of the Amos R. was dead. Murray Phillips testified that both he and Mr. Kline, plaintiff, the patent searched for the and were unable to request that it; find he made the search at the of Mr. Kline, and that the last time he it it was in saw the re- attorney corder’s office; that he adviser and was of Phillips, Amos probably R. that the courthouse burned, patent lodged the while the recorder’s officewhen papers destroyed. all appears such were Thus it persons right custody patent who had a to the unable were find it.
Appellant, however, asserts that no other could long be admissible as as record officewas' accessible. record of Patent No. 310' produced clerk’s officewas in evidence appellant himself. The Act of 1857 makes such record a only prima-faeie evidence title. Such record is not conclusively open correct. to show n Murray Phillips erroneous. it was testified original compared patent among he which he found Shapleigh papers Phillips with that record and of Patent No. exact of the record original patent, exception with word “fifteen” range, giving the number of whereas the range patent number thirteen. showed This swamp on its showed that was a face Swamp Land Act. land under In corroboration of testimony Phillips shown that Township Range 15, contained no land, not have and, therefore, could described the land Patent No. 310 for question clerk’s office. It was fact to determine whether trial court er- roneously in clerk’s office. recorded There *10 COURT MISSOURI. SUPREME OF Kline Groesclmer.
was sufficient it evidence before tbe court from which very properly general finding plain- for could as the find, did, i Shap- it that tiff shows the delivered to leigh correctly Phillips in suit, described the land recording the it clerk made a mis- range. purely being take as to the number of the This finding upon binding action at law this court. original we the loss of the accounted Here have proof for. We that the record a correct of office is therefore not erroneous, and patent., the secondary Then we must be remitted to next best copy, supported
evidence—the certified testimony Murray Phillips of Mr. saw who exactly by compari- patent and knew what contained copy produced son with the record swears copy. is a correct patents II. issued two for the same Where are regular upon prior land, both their must face, the one subsequent [Simpson prevail one. over v. Kil patrick, regard 148 Mo. 507.] statutes Recording recording to affecting title to instruments Patent. apply conveyances by land do not the State. conveyances may Such but their effect in recorded, vesting affording dependent upon title and notice is not being their Phillips, [Wilcox recorded. 260 Mo. question, l. c. 681.] The where successive are for the same land, not one of notice. As stated J., case Mosher v. Woodson, clearly Bacon, 229 Mo. l. c. 362: am, therefore, “I opinion question that it is not a either notice, that, actual constructive, in this is involved case, but power authority part one of register on the lands to sell such lands a second time; cannot do.” he point, is “Swamp made that the A Land Abstract County” of New Madrid does that the show land in dispute patented anybody. however, Section require of the Act of “Swamp' 1857, does not Land Abstract” filed the officeof the show to whom Yol. 280] y.
Kline Groeschner. to show connty, patented land was acquired. the county
list which duty act Under recorded. have the delivery clerk before plain- validity. That was not prerequisite describing correctly tiff’s ancestor received there perform He no land. had re- correctly seeing he could do nothing failure responsible he corded, officer, neces- -not It was duty. perform for the purpose of it him to make sary for *11 the coun- power of of constructive notice. affording of act by the was exhausted with the to deal land ty that patent. issuing commis- subsequent follows that necessarily
It under by deed sioner’s validity pass of no claims were the defendant no title. himself avail appellant cannot Obviously
III. it stands because ten-year Limitations, Statute of of the land no actual possession there was admitted at any time controversy by either party would start possessory acts which no Limitations. operation statute. Appellant, however, claims Stat that, 2535, under Revised Section utes 1909, enacted action accrued 1897, cause plaintiff years title more than ten successors to the he prior of this and therefore suit, bringing barred. He cites the v. 279 Mo. Bowen, case Powell by at the Banc. April term, 1919, Court decided case, there actual adverse however, posses In sion title in the years which, ten vested course, land, this case was wild possessor. by has held party possession. neither been this court the failure to sue with both divisions of after has right in ten accrued does years sue an under Section v. 253 Prey, bar action [Armor Powell v. l. 476; Powell, 267 Mo. Mo. l. c. c. 129.] MISSOURI. SUPREME COURT OF
Kline
Groeschner.
ac
plaintiff’s
claims that
Defendant further
IY.
operation
he terms
what
tion
one-year
barred
pleaded
He
of Limitations.
Statute
brought
plaintiff previously
action
had
action,
that said
land;
same
this
collcerninS'
Nonsuit: Suit Within
voluntarily dis
determination,
before
Year.
present
ac
and the
missed
year
thereafter,
tion
within one
commenced
to main
could not be
and therefore
heard
Appellant
refers to Section
tain
-suit.
doubtless
this
has
however,
That section,
1900, Revised
Statutes
simply saving
court
be
clause
been construed
applicable:
prevent
would be
otherwise
bar which
bringing
purport
suits,
limit
doesn’t
“It
time
nonsuit,
year after
for one
statute,
from
but
save
provisions,
be
would
barred.”
but for its
which,
actions
Overly,
231;
Mo.
l. c.
Karnes
[Meriwether v.
413.]
Mo.
Co.,
Ins.
Appellant
is barred
claims that action
further
V.
thirty-year
Limitations,
Statute of
de
order to maintain this
1909. In
Revised Statutes.
necessary
prove that
fense it
would
possession for thir
had
out of
Thirty-year Statute.
been
Plaintiff
*12
ty years
had been “in
that
defendant
possession”
year
lawful
for at
one
thereafter and
least
plaintiff
paid
thirty years.
that
had not
taxes for
possession
There was no lawful
the defendant within
[Brannock
the intent of that term
the statute.
v.
McHenry,
9;
252 Mo. l. c.
Lumber
186
Co., Mo.
Weir v.
388;
Graves,
v.
VI. recovery estoppel. right because of laches and The any equitable not ask in does relief his an defendant purely swer, that the action remains so action Lac hes. law, at such laches is not a in case defense. applied only The- doctrine of laches is to. defeat a claim equitable Nickey, [Chilton v. relief. some Mo. Kellogg 193; v. Mo. 243; Moore, 271 l. c. 189, l. c. Vol.
Kline Groescliner. v. Newbrough l. c. Bell 551; Moore, 202 W. S. George, 519.] l. c. 204 S. W. estoppel, shown that it is not
As for the claim of anything defendants, did which misled anything plain- upon done relied defendants hurt, position his altered his and thereby tiff Estoppel . spown executed and the defendant including covering mortgages land, filed several large predecessors other tracts. The mortgages covering this land. four executed also Drainage No. land is District included drainage perhaps was shown districts. two other a contract from Madrid obtained New that Charles Luce drainage Drainage County presumably to'dig ditches, affect this that Luce land; No. which District would county in deed from the received commissioner’s through appellant sources which the is one of the way further that Charles H. was in some claims; Luce Himmelberger-Luce & Lumber connected Land with through Company, claims, also defendant Himmelberger This made to John parties through apparently whom the to show that procuring had instrumental defendant claims been drainage carrying organization district and defend- It was not shown out the thereon. work expended any money any grantors at time ant or his question. they spent improvement If any money constructing under contract drains Himmelberger-Luce county. Land & Lum- with by appellant, mortgaged Company, it claimed ber large money amount with which to land for a digging carry the contract with out anyone contract which could ditches. But company done and the work made ownership land, of this but because claim because of . other paid as it contractor. it, would *13 judg- in the record. shown no error is There is affirmed. ment MISSOURI. COURT OP SUPREME Pierce.
Bank of Commerce v. (70., Mozl&y,
BaÜey concur. foregoing opinion PER CURIAM:—The "White, opinion All the court. adopted as the isC., judges, concur. LOUIS v. IN ST. COMMERCE BANK OF
NATIONAL Appellant. PIERCE, CLAY HENRY Two, 1920. March Division ac- of an In a review ]. Law. Action at PRACTICE: APPELLATE court, jury wherein in the circuit without a tion law tried at contrary ground to the judgment is on the assailed appellate developed trial, the chief concern of at the facts to evidence there is court ascertain whether substantial is judgment. support the Objection. at law In action EVIDENCE: Admission Without appellant 2. complain appeal memo- of a on the admission cannot objection. without randum evidence which was admitted Evidence. Where Substantial PLEDG-E: Surrender of Collateral: court, jury ease, sitting has found the trial law as a subject stock, is thousand shares of ten pledged controversy, as collateral se- to the bank were curity never surrendered for a loan and that the bank had thereon, lien there is substantial evidence liberty support finding, appellate rule not at court is finding support sufficient. In the evidence to was not whether, appellate such case of small with the court concern trying novo, if it were' would have made the same case cLe finding. or a different Finding 4. LIMITATIONS: of Fact. there is Conversion: Where stock, pledged secure substantial evidence that loan, years was delivered within five to defendant before brought his own use suit and that he it to did convert delivery him, appeal until after its it cannot ruled on damages wrongful the action for stock conversion limitations. barred Damages. Testimony CONVERSION: Nominal defendant deposition occasion, a plaintiff a former introduced by him, properties and uncontradicted th&t of-a rail- company, pledged plain- capital road whose entire stock was dollars, $700,000, tiff to secure a loan worth million one support judgment sufficient to for seven thousand hundred