187 Mo. 323 | Mo. | 1905
This is an action in ejectment to recover possession of the following described real estate situate in the county of Livingston, to-wit: “All of that part of the west half of the northwest quarter of section four in township fifty-six, range twenty-one, lying west of Locust creek, containing sixty-five acres, more or less.” The petition is in common form. The answer, after admitting possession, is a general denial. The case was tried before the court without a jury; finding and judgment were for the defendant, and plaintiff appeals.
The land in controversy was swamp land within the provisions of the act of Congress of September 28, 1850, and of the confirmatory act of March 3, 1857, granting this and other lands to the State of Missouri, in pursuance of which a patent was issued from the General Government to the State, dated August 13, 1858.
By an act of the General Assembly, approved March 3, 1851, all of the swamp lands aforesaid, except such as were situate in ten counties therein named, of which Linn county in which the land in. question was then situate was not one, were donated by the State “to the counties in which said lands respectively may be situated.” [Laws 1850-51, p. 238.]
At the time this act was passed the land in controversy, as stated, was situate in Linn county, Locust creek being the boundary line between that and Chariton county; but by an act of the General Assembly, approved January 10, 1855 (Laws 1854-5, p. 17), it was attached to Livingston county, and ever since has been
‘ ‘ Section 1. In order to convey to the different counties in the State of Missouri a complete title to all the swamp and overflowed lands, which were granted and have been patented to the State of Missouri by an act of Congress, entitled, ‘An act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits,’ approved September 28, 1850, the register of lands 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,- and when such patents have been prepared as herein provided, they shall be presented to and signed by the Governor of this State, attested by the Secretary of State, and recorded by the register of lands in his office.
“Sec. 2. Whenever possible so to do, all the overflowed and swamp lands situate in any one county shall be included in one patent, and described numerically by sections, townships and ranges, having due regard for county lines.
“Sec. 3. That it shall be the duty of the officers named in the first section of this act to convey, by patent or patents, as herein provided, all such 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.
“Sec. 4. It shall be the duty of the register of lands to forward all patents when the same shall be executed and recorded as required by the foregoing sec*329 tion of this act, to the clerks of the several county courts of this State, and so soon as the same shall be received by said clerks, the several county courts shall cause the same to be duly recorded in the recorder’s office of their respective counties, as other conveyances are required by law to be recorded.
“Sec. 5. That any patent or patents issued, executed and duly recorded as required by this act, or a certified copy of the same, which shall include all the land therein described, or which shall include any separate and distinct description of the lands therein described, either under the hand of the register of lands or the recorder of the proper county, shall be received and read in all the courts in this State as prima facie evidence of the title in the counties where such overflowed and swamp lands -severally lie.
‘‘ Sec. 6. The several county courts shall have full power and control over all such overflowed and swamp lands patented to their respective counties under the provisions of this act, and to sell and dispose of the same in like manner and with like effect as now provided by the general statutes in relation to the conveyance of other real estate belonging to their respective counties.
“Sec. 7. That from and after-the passage of this act, the register of lands shall not issue patents to any individuals for any overflowed and swamp lands, situate in the several counties of this State.
“Sec. 8. Nothing in this act shall be so construed as to require the register of lands to patént to the several counties, as herein provided, any tract or tracts of such overflowed aud swamp lands, which have prior to the passage of this act been patented to any person or persons by the State of Missouri.
“Sec. 9. That so much of all laws in relation to overflowed and swamp lands as are inconsistent with the provisions of this act, are hereby repealed.
*330 “Sec. 10. This act to take effect and be in force from and after its passage.”
In pursuance of this act a patent dated November 12, 1869, was duly issued, conveying the west half of the northwest quarter of section 4, township 56, range 21, to the county of Chariton, which of course included the land in controversy, and thus it was that this land which never was in Chariton county, and never was donated to Chariton county by the State, was nevertheless patented to that county, and under this patent the plaintiff claims title to the premises by means of a conveyance to him by the county of Chariton, dated May 1, 1893.
The circuit court by its rulings in effect held, that the legal title to the premises (with which we have only to do, in this action) was vested in the State of Missouri by the patent from the United States dated August 13, 1868, and that such title did not pass to Chariton county by the patent from the State to that county dated November 12, 1869.- Hence, the legal title did not pass to the plaintiff by the conveyance from that county, and hence the judgment for the defendant. Counsel for plaintiff contend that the court erred in so ruling. That the patent from'the State to the county is of equal probative force with the patent from the United States to the State, and that the probative force of the State patent is to conclusively establish legal title to the premises in Chariton county.
As to United States patents the rule on this subject is well stated in an opinion by Maceareane, J., in Cummings v. Powell, 116 Mo. l. c. 477, as follows: “It is well settled under the decisions of this State and of the United States, that even in actions at law, the validity of a patent, though in due form, is subject at all times to the inquiry whether the officers of the government who issued it ‘had the lawful authority to make a conveyance of the title. But if those officers acted without authority; if the land which they purported to
The extrinsic evidence in this case which showed a want of authority for the issue by the State officers of a patent to the premises to Chariton county, was the fact that the land was not situate in that county, and by the act under which it was issued those officers had authority only to issue patents to that county for lands situate in that county, as is apparent on the face of the statute itself, for which purpose it has been set out at length. So that even if such patent was of equal probative force with a patent from the United States government, it would seem to come within the rule announced and would be void for want of authority for its issue. But the probative force of the patent itself was limited by the very statute which authorized its issue, by which it was provided that such patents shall only be “prima facie evidence of title in the counties” in which such lands lie. How, then, could such a patent be conclusive evidence of title in a county in which the land did not lie? To this absurdity is the argument of counsel for appellant reduced. The patent to Chariton county being only prima facie evidence of title in that county, that evidence might be rebutted, and being entirely overcome by the admitted fact that the land was in Livingston county, and never had been in Chariton
