261 Mo. 27 | Mo. | 1914
This suit was instituted in the circuit court of Pemiscot county, by the plaintiff against the defendant, to quiet the title to two hundred and forty acres of land, situated in that county, under old section 650, Revised Statutes 1899', now section 2535, Revised Statutes 1909, particularly described as follows: the northwest quarter of section eight, and the north half of the northeast quarter of section eighteen, all in township seventeen, north, of range eleven east.
On change of venue the cause was transferred to the circuit court of Ste. Genevieve county, where the cause was tried May 2, 1908, and taken under advisement. Pending the submission, over the objection of plaintiff, the court re-opened the cause, and after one year permitted the introduction of other evidence, and on May 1, 1909, rendered judgment for the defendant.
The plaintiff based his right to a recovery upon equitable grounds, as follows:
That while the legal title to the lands in controversy (swamp land) had never emanated from Pemiscot county, yet the equitable title had so passed by virtue of certain receipts from the receiver of lands of that county showing that William G. Easley had purchased the same, according to law, on September 12, 1858.
The plaintiff claims title to the land through said Wm. G. Easley, by reason of the following deeds of conveyances:
(a) Plemiscot county to William G. Easley, certificate of entry No. 987, dated July 17, 1858, consideration $800, recorded in Register’s Book No. 1, at page 35. Lands conveyed: Northeast quarter of section No. 8, township No. 17 north, range No. 11, east, and other lands.
(c) Quitclaim deeds from the heirs of James B. •Easley to plaintiff, bearing different dates in tbe year 1906, duly recorded.
Tbe defendant’s title is deraigned through tbe following deeds:
(1) A sheriff’s tax deed to Virg P. Adams, dated March 10, 1880, purporting to convey tbe interest of William Gr. Easley to tbe land in controversy.
(2) Á quitclaim deed from Virg P. Adams to Benjamin F. Barcroft, dated September 29, 1885', and recorded November 19, 1885.
(3) A mortgage deed from Benjamin F. Bar-croft to T. B. Sims, tbe respondent, dated September 15,1881, and duly recorded, date not given.'
(4) Mortgagee’s deed from T. B. Sims, mortgagee, to T. B. Sims, tbe respondent, dated December 14, 1887, all of which purported to convey tbe land in controversy, except that described in tbe sheriff’s deed, which will receive further consideration later.
Tbe defendant testified that be did not claim any title to tbe land in controversy, except as above stated. For some reason, not made clear, counsel for respondent seem to have objected to tbe introduction of various receipts and entries offered from a book called tbe “Receiver’s Book,” in tbe possession of one J. R. Brewer, one of tbe counsel for appellants, regarding tbe entry of tbe land and payment of tbe purchase price thereof' to tbe receiver of swamp lands in that county, by William G. Easley, in tbe year 1858; but, when we come to consider tbe evidence of respondent regarding tbe same matters, we find that they rely upon tbe same-papers or receipts, which, however,-are found in Carleton’s Abstract, which are copies of tbe same Receiver’s Book previously mentioned.
I. The first proposition presented for determination is the action of the court in admitting in evidence the original Register’s Books etc., Pemiscot county. It is somewhat difficult to understand the law governing Oarleton’s Abstract, without knowing something of the history of the swamp land legislation of Southeast Missouri; and for that reason, as well as to throw some light upon the swamp land titles of that section of the State, and the legislation governing the same, I here present a very carefully prepared history of the laws regarding those subjects.
It is fundamental that originally the United States held title to all lands now designated in the legal and political history of this State by the name of “swamp lands.” There was passed and approved on September 28, 1850, by the Congress of the United States an act entitled, “An act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits.” [9 U. S. Stat. at Large, p. 519.] The express intent of the above act, as set out therein, was that these lands should be given to the State of Arkansas and, as by another section of said act provided, to each of the other States of the Union, for the purpose of constructing necessary levees and drains to reclaim such swamp and overflowed lands as were wet and unfit for cultivation, inferably in their then state. The act applied only to such swamp lands as then remained unsold by the Federal Government. It was made the duty of the Secretary of the Interior, by sec
Difficulties very naturally ensued, in that it was found that after the State authorities in pursuance of law and instructions to this end, had selected and duly reported to the proper departments at Washington such swamp and overflowed lands, many tracts thereof were found to be occupied by squatters claiming title, or claiming pre-emption rights therein. The Commissioner of the General Land Office had, it seems, opened such lands to contest and litigation, and upon ex parte testimony large areas thereof were being stricken from the swamp land list, thus depriving the State of Missouri and the several counties in which these lands lay, of their just portions thereof. A joint resolution was passed by the General Assembly of Mis
These swamp lands were reported by the Government surveyors engaged in sectionizing the public domain to be such, and in the course of many years patents were issued to the State from time to time for this land. This work of issuing these patents and thus confirming the swamp land selections made, continued in a desultory way for more than twenty years. From this arises some of the peculiar and otherwise inexplicable methods with which the State and counties subsequently dealt with these lands.
The 16th General Assembly of Missouri met some three months subsequent to the passage of the swamp land grant by the Congress and forthwith began legislating on the subject of swamp lands. The first act passed in point of time, had reference solely to the southeastern group of Missouri counties, which embraced New Madrid, Mississippi, Scott, -Cape Girardeau, Stoddard, Dunklin, Ripley, Butler, Wayne, and after February 19, 1851, Pemiscot. The act was entitled, “An act to provide for the reclamation and sale of overflowed and swamp lands in the southeastern
This first act provided for certain commissioners to be known as the “Board of Swamp Land Commissioners,” whose duties it was to devise some plan of reclamation and carry the same into effect. The sum of fifty thousand dollars was appropriated for the use of this board. Pursuant to this act a land office was established at Benton, in Scott county, where, it was provided by such act, all of the swamp lands in each of the counties of said southeastern group should be sold. The lands were to be sold fornot less than $1.25 an acre. This sale was to be a public one and at the end thereof all such swamp land as remained unsold was to be subject to private entry at the same price. The money arising from the sale of said land was to be paid into the treasury of the State to the credit of a fund to be known as the £ £ Swamp Land Fund. ’ ’ This fund was to be used in re-payment to the State of the appropriation of fifty thousand dollars. No provision was made by this act for the disposal of any surplus from the sales of this land. By the provisions of this act whenever any land was paid for in full by the purchaser thereof at any sale, duplicate receipts were to be made, of which one was given to the purchaser and the other was to be certified to the Secretary o State. Upon receipt of such duplicate by the Secretary of State it was the duty of the Governor to issue a patent for such land to such purchaser.
There was passed by this same 16th General Assembly a few days subsequent to the passage of the above act, that is to say on March 3, 1851, another act
The 18th General Assembly passed an act amending the act of February 13, 1851, by repealing so much of the same as required the counties of the southeastern group to refund to the State the proportion each of them had received of the fifty thousand dollars heretofore mentioned. [Laws 1854-5, p. 160.]
This same General Assembly passed an act on the 28th of February, 1855, which contained but one section. This act was entitled, “ An act amendatory of an act ‘donating certain swamp, and overflowed lands to the counties in which they lie,’ approved March 3, 1851.” [Laws 1854-5, p. 160.] This one-section act was in full, enacting clause omitted, as follows.:
‘ ‘ That the several county courts of this State are hereby authorized to sell and dispose of the swamp and overflowed lands within their respective counties, either with or without draining and reclaiming the
On the next day following the passage of the act last above set out the most important act, so far as concerns the counties in the southeastern group, was passed. This act was entitled, “An act in relation to swamp lands in the counties of New Madrid, Pemiscot, Mississippi, Scott, Cape Girardeau, Stoddard, Wayne, Ripley, Butler and Dunklin.” [ Laws 1854-5, p.' 154.] This act contained a group within a group in this, that a subgroup consisting of Scott, Dunklin and Pemiscot counties was erected in the said southeastern group, and certain small differences in administration and administrative offices was provided for this subgroup. This will be hereafter referred to, as well as another small difference in this act which latter variation affected Pemiscot county alone.
Section one of the above act provided that the clerks of the county courts of all the counties in the southeastern group (except in Scott, Dunklin and Pemiscot counties) should be ex-officio registers of lands within their several counties; section two provided that the treasurers of the above named counties, ag'ain except Scott, Dunklin and P'emiscot, should he ex-officio receivers of public moneys arising from the proceeds of the sale of swamp lands situated in said several counties. In the counties of Scott, Dunklin and' Pemiscot such registers of swamp lands and receivers of public money arising from the sale of such lands, were to be elected; otherwise, the duties of all such registers and receivers of lands in the southeastern group were similar, according to the provisions of this act. Section 3 of said act provided for the giving of bonds, both by the receiver and register of swamp lands, conditioned that such officers “shall perform all the duties required of them by law, and account for all money, books and papers which may come into their
The county courts of the several counties were empowered, upon the giving of ninety days notice by the sheriff of the time and place of sale and of the lands to be.sold, to cause said lands to be offered for sale, which sale it was provided, was to be conducted by the register of lands. The highest bidder at the public auction so held became the purchaser. The lands remaining unsold were thereafter subject to private entry with the register and receiver, as in the manner heretofore pointed out. The minimum price, it was provided by section 18 of said act, whether sold at public sale or private sale should be the sum of one dollar per acre. No provision was made in this act for the disposition of the surplus money, if any should be left after draining and reclaiming these lands..
By section 29 of said act, it was specially provided that as to Pemiscot county all contracts made therein and executed in good faith, prior to March, 1855, and all contracts not executed and entered into prior to April, 1855', and having relation to swamp lands in that county, should be held to be legal. This special provision seems to be explainable only by a matter of local history, which is, that contracts under previous laws had prior thereto been made by the county court of Pemiscot county for the construction of a levee along the west shore of the Mississippi river and on the east side of Pemiscot county, to prevent floods from the waters of said river. These contracts for building levees, it seems, had in many cases been fully executed and ip many other cases were being then
By the act of November 23,1855 (Laws of 1855, p. 351), which also seemingly applies only to the southeastern group, certain provisions were made, more nearly defining the rights of pre-emption, which right was specifically conferred by the act of March 1, 1855-, supra. This act also provided that in all counties wherein registers and receivers were required to be elected, such officers should hold their office for the term of two years, and that vacancies should be filled by appointment of the county courts, except in Mississippi county, wherein the Governor was given the right to appoint such register and receiver. This act is a very fine example of the manner in which legislation upon the subject of swamp lands was rendered ambiguous, doubtful, complicated, tangled and irreconcilable.
It may be noted as important upon the question of the deraignment of a swamp land title, that chapter 93, entitled “Swamp and Overflowed Lands” (E. S. 1855, p. 1005), did not apply to such southeastern group and therefore did not apply to P'emiscot county, for section 20 thereof expressly exempts the- counties of the southeastern group from the provisions of chapter 93.
The 19th General Assembly passed an act on the 27th of February, 1857 (Laws 1856-7, p. 271), entitled simply, “An act in relation to the disposal of swamp lands,” which again subdivided the law touching swamp lands in the southeastern group, by providing that whenever the county courts of either of the counties of Cape Girardeau, Dunklin, Mississippi, New Madrid and Pemiscot should be satisfied that full pay
This act'explains and throws full light upon an act passed on the 4th day of November, 1857, following. [Laws (Adj.) 1857, p. 2.69.] Read in the light of the act next before mentioned, and which gave power to the county courts to issue patents to swamp lands in said five counties, the act last mentioned seems more reasonable than it would otherwise at first blush appear. This last mentioned act was entitled, “An act supplementary to an act entitled ‘An act in relation to the disposal of swamp lands in the counties of Cape Girardeau, Dunklin, Mississippi, New Madrid and
“Section 1. That tbe Secretary of State is hereby required to return by d%ie course of mml, all the certificates of entry and payment of and for said lands, to tbe respective county courts named in said act, and that tbe comity courts of tbe respective counties so named shall bave tbe entire control of tbe matters contemplated in said act, any law to tbe contrary notwithstanding. This act to be in force from and after its passage. Approved November 4, 1857.” (Italics ours.)
Tbe act to which tbe section last above was expressed to be an amendment, declared itself to be a public act.
Tbe act above set out has been productive! of practically all tbe trouble and legal difficulty which have arisen in the five counties of tbe southeastern group, particularly and specifically mentioned in this act. Many of these counties bave lost their records by fire or by war, in which catastrophes tbe duplicate certificate of purchase kept on file by tbe register of lands and tbe duplicate receipts for tbe purchase money kept on file by tbe receiver of public moneys, as well as tbe triplicate of the certificates of purchase and receipts formerly in tbe bands of tbe State Register of Lands, and returned by him pursuant to tbe act of November 4, 1857, were all wiped out of existence; leaving no original records except a little slip of paper held by tbe original purchaser. When tbe latter was lost and tbe records burned 4or .destroyed by war, as either partially or wholly transpired in Pemiscot and other counties, tbe entire transaction was wiped out of existence, so far as any paper records thereof were concerned.
If it be asked why patents were not issued by tbe several coiinties of this State upon tbe filing at Jeffer
Another act affecting the swamp lands in the State was passed by this same 19th General Assembly. This act was entitled “An Act Amendatory of an act entitled ‘An Act donating swamp and overflow lands to the counties in which they lie,’ approved December 13, 1855.” [Laws 1857, p. 32.] The above act contained but two short sections, the first of which provided that all swamp lands which have been or may
Following this no other act of importance, so far as the title to this land is concerned, was passed by the Legislature until the acts respectively of March 27, 1868 (Laws 1868, p. 68) and the Act of March 10, 1869 (Laws 1869, p. 66). A combination of these two acts carried into the subsequent revisions have come down to us as the law of to-day in all the counties in the State touching these lands. Some minor amendments have been made, but they are of comparatively recent date and affect only a limited portion of the lands in the southeastern group.
The act of March 27, 1868, supra, was entitled simply, “An Act in relation to swamp and overflowed lands.” It put the control of such lands, as well as the matter of issuing patents therefor, wholly into the hands of the several county courts of the counties of the State; it provided that none of said lands should be sold for less than $1.25 per acre within five years from the first day of January, 1866; it provided that the State Register of Lands should issue a patent to all lands which had been sold by the several county courts in their respective counties since the fourth day of November, 1857, upon such State Register of Lands being furnished hy the various county courts an abstract of all the sales of such lands made subsequent to the period aforesaid. Just here it may as well be said that by section 6 of the later act above referred to, that of March 10, 1869, the matter of issuing patents to swamp lands was taken from the Register of Lands, and put into the hands of the county courts wholly, where it has ever since remained. It will be noted, however, that as to Pemiscot, Cape
The proceeds of all such sales of swamp lands after paying the expenses of drainage, reclaiming, surveying and selling the same, were required to be paid into the county treasury and to become a part of the public school fund of the county in which the land lay. It was further provided that settlement should be made with the s'everal counties for moneys paid by the General Government to the State on account of unauthorized sales by the United States of portions of these swamp lands, and on account of settlement by the United States pre-emptors.
The said act of March 10, 1869, supra, by the first section thereof, threw an illuminating light upon what has been said above touching the delay by the State to make the counties patents for these swamp lands. For it will be noted that it says, “In order to convey to the different counties in the State of Missouri a complete title to all the swamp and overflow lands, which were granted and have been patented to
The interesting details of the vicissitudes to which the “Register’s Book” and the “Receiver’s Book”' of Pemiscot county, have been subjected is to be gathered in shreds and patches from the vast number of cases coming here from that county involving swamp land titles, and may be placed together into a fairly consistent history. When the courthouse of
Many special acts of the Legislature, passed throughout the years before the Constitution of 1875, permitting Pemiscot, Dunklin and other of the southeastern group to donate portions of the swamp lands therein to railroads, toll roads, plank roads and other corporations, have not been noticed. They are not pertinent to the matter now in hand. Likewise some special provisions affecting the minimum price at which swamp lands in Dunklin and counties other than Pemiscot could be sold, are passed over as not pertinent, till a swamp land title with this point of minimum price in it, shall come up from these counties. [See Act of Jan. 30, 1857, Laws 1856, p. 464.]
Such in brief is the history of swamp land legislation affecting the title to such lands in the southeastern group in general and in Pemiscot county, Dunklin county and Scott county more particularly.
After this historical diversion 1 return to the subject in hand. It will be seen that the Act of 1901, Laws
It stands to reason, that if Carleton’s Abstract was admissible in evidence under either of said acts, and counsel for respondent insists it was, then under and by virtue of the well-known rules of evidence the original books in the hands of Mr. Brewer, from which the abstract was made, were also admissible because they were the best evidence, the original being always the best. ■
We are, therefore, clearly of the opinion that the court did not err in admitting the original books.
We had occasion to review this law somewhat extensively in the case of Mosher v. Bacon, 229 Mo. 338, and there we considered the act of the Legislature creating the offices of the register and receiver of swamp lands, in the counties therein mentioned, their duties, the mode of selling those lands, and the books they were required to' keep, and what they should show, etc. After so doing we held that when a purchaser had fully complied with all of the provisions of said laws, and paid the purchase price, for the lands entered, and received the receipts of said officer therefor, as therein provided for, he thereby acquired the equitable title to the land so entered and paid for, notwithstanding, through the fault of the officers of the State or county, he never received a patent therefor as prescribed by the act; also, that the Register’s and Receiver’s books required to be kept by said act were notice to the world that the county had sold the lands shown thereby, and that if any
It was also there held that said equitable title was superior to and better than the legal title subsequently acquired from the county. The law as announced in that ease, is controlling in this. But the application of that principle of law to this is not absolutely necessary for appellants’ right to recover here, because William Gr. Easley was the common source of title through whom both parties to this suit claim title, which forecloses all necessity to make inquiry into said Easley’s title.
ÍI. Counsel for appellant contends that the judgment of the circuit court should be reversed for the reason that the record shows affirmatively that the respondent has no title whatever to the land in controversy, for the reason that the tax judgment against William Gr. Easley, under which the respondent claims title, was rendered March 15, 1879; that the execution thereunder was issued September 8, 1879; that the execution was delivered to the sheriff September 10, 1879; that the sheriff’s levy was made on the same day; and the sale thereunder of -tract No. 2, the north half of the northeast quarter of section eighteen, township seventeen, range eleven, etc. (the remaining part of the land sued for was. not sold) was made November 4, 1879.
The evidence also shows that the appellant derived his title through William Gr. Easley through mesne conveyance. He conveyed the land to his son, James B. Easley, by deed dated April 13, 1873, duly recorded April 14, 1873. This evidence shows that William Gr. Easley, the defendant in the tax suit, under which both the respondent and appellant claim title, had disposed of the land to his son James some six years before the tax suit was instituted, the judgment
This alone is sufficient to justify a reversal of the judgment of the circuit court.
But there is another equally valid reason why the judgment should be reversed, and that is, the deed shows that that part of the land which was sold was sold on November 4, 1879, at the November term of said court.
This court takes judicial notice of the terms of the various circuit courts of the State, as they are established by public statutes. From 1871 to a date subsequent to the date of this sale, the terms of the Pemiscot Circuit Court began on the “second Monday of March and September” of each year. From this it is seen that there was no such term as the November term of the circuit court of Pemiscot county in the year 1879, when the sale took place.
And sections 2380 and 6838, Revised Statutes 1879, the same as our present statutes, required all such sales to be made during the term of the circuit court.
It thus appearing that the sale did not take place during a term of the circuit court, it necessarily follows that the sale was also void on that account as this court has repeatedly held. But independent of the two defenses just mentioned, the record shows that the sheriff only sold the north half of the northeast quarter of section eighteen, township seventeen, range eleven, and did not pretend to sell the northeást quarter of section eight, township seventeen, range eleven. .
Under this showing the respondent had no color of title whatever to this one hundred and sixty acres,
After a careful' reading of this entire record, which is not unusually long, we fail to find a scintilla of evidence preserved tending to support either of those defenses, hut upon the other hand the evidence shows that the lands were wild, swamp-timber lands uncultivated and in the possession of no one.
Under these views of the case, we are of the opinion that the judgment of the circuit court should be reversed, and that a judgment should' be here rendered in favor of appellant in accordance to the prayer of the petition.
It is so ordered.
