77 Mo. 621 | Mo. | 1883
This was a suit in equity, commenced on the 23rd day of May, 1877, for tbe purpose of enforcing the right of redemption to a parcel of land in Nodaway county, containing eighty acres. The plaintiffs obtained possession a few months before the suit. The defendant, Lewis Osborn, denied the plaintiffs’ title and set up a title in himself, starting from a source common with the plaintiffs’ source of title. He also claimed the absolute title by virtue of an occupation and possession for a sufficient length of time to bar the plaintiffs’ claim of title and vest himself with the fee. The other defendants admitted the allegations of their petition and joined with the plaintiffs in their prayer for relief. •
The adverse title, under which the defendant, Osborn, claims the land, forks out from the plaintiffs’ chain of title through the mortgage of June 4th, 1860, given to secure the loan from the school fund, and runs as follows : 1st, The sheriff’s deed to Nodaway county, acknowledged Au
From other testimony introduced, it appears that after the death of George N. 'Wileoxon, in 1863, who had resided on the land with the plaintiffs, who were his children, his widow sold her dower right in the land and improvements, which consisted of three cabins and a mill, to Edward Spencer, and removed with the children to Iowa, thence to Southwest Missouri, and afterward to Kansas; that the children first heard of their interest in the land in 1876 from a person who came to them in Kansas for a quitclaim deed; that they returned with their mother, and finding the land unoccupied and the improvements all taken off, put up a tent on it, and entered into peaceable possession of it in January, 1877, which possession they continued to hold, having since their entry built a log cabin on it for their residence.
As to the possessory title of defendant, it seems that after the deed of the county to Patón of August 17th, 1865, the land was possessed and occupied first by him, then by Boatman, his vendee, under deed of October 8th, 1866, then by Jacob Roth, his vendee, under deed of October 12th, 1868, who occupied it as proprietor until his sale to his brother-in-law, Lewis Osborn, March 4th, 1870. Osborn is a non-resident, and Roth continued in possession for him till 1876, when he removed the fence which constituted the only improvement left on the place at that time. After
On this evidence the court, on the 29th day of January, 1878, rendered a decree in favor of the plaintiffs, and the defendant, Alfred Wilcoxon, permitting them to redeem under the mortgage of June 4th, 1860, mentioned in the petition, five-sevenths of the land, by payment to defendant Osborn of the sum of $830, being five-sevenths of the amount due on the mortgage and for taxes. Amanda and Anna, defendants, were held to be barred by the statute of limitation. The defendant Osborn has, for himself, prosecuted this appeal.
I. The defendant insists, in his brief, that the only right the ancestor of the plaintiffs ever had in the land was a right to purchase in pursuance of the certificate of purchase of February 21st, 1856, which Wilcoxon and Murphy acquired from Charles B. Lee. It is denied in the answer that Wilcoxon and Murphy borrowed $100 from the school fund to complete the purchase, or that the bond and mortgage given by them on the 4th day of June, 1860, were given to secure a loan of that • amount of the school fund. On the contrary, it is averred that the mortgage of June 4th, 1860, was in truth given by them to secure the purchase money for the land called for in the certificate of purchase, and that said purchase money has never been paid, and that the plaintiffs and their ancestor abandoned the right to a deed under said certificate, and have lost all right to have a deed from the county in pursuance thereof.
This position cannot be maintained in face of the evidence disclosing the character of the transaction with the county. The evidence goes to show that the certificate was surrendered as paid, and that the mortgage was to secure a loan from the school fund. The mortgage recites the language of the bond it was given to secure, and that language declares it was given to secure a debt payable to the use of the school fund. This recital, which is binding on the county, sustains the position of the plaintiffs that
II. I will first consider the record title and estate of plaintiffs. The defendant assails two deeds in the plaintiffs’ chain of title, viz: the deed of the county by Commissioner Bickett to Wilcoxon and Murphy of June 4th, 1860, made under the swamp land act, and purporting to convey the whole title, and the deed of Isaiah Wilcoxon’s administrator to George H. Wilcoxon, of April, 1861, for an undivided half of the land.
III. The deed of the county, of June 4th, 1860, by its commissioner, is objected to by the defendant on the ground that the county could not, by commissioner or otherwise, sell any swamp land without payment of the purchase money. The deed recites that the purchase money has been paid; and this recital is sustained by the evidence in the case showing that the money to pay for the land was borrowed from the school fund.
But I apprehend it is not necessary in this case to con
I am well aware that our Supreme Court has, by repeated decisions, laid down the doctrine that the relation of vendor and vendee is antagonistic, and that the vendee is not estopped from denying the vendor’s title. Macklot
Such is the present ease. The plaintiffs claim the title of Wilcoxon and Murphy subject to their mortgage. The defendant claims the same title by and through a foreclosure of that mortgage. The county assumed to foreclose the mortgage by proceedings in the county court culminating in a sheriff’s deed to the county in August, 1865, in which the mortgage deed is recited and its validity recognized. The sale to the county was on the 14th day of August, 1865, and the sheriff’s deed was acknowledged on the 16th day of August, 1865. On the same day the county court enters an order empowering Leander P. Ellis, president of the court, to convey the land by deed to Nathan Patón in consideration of $109, paid by him into the treasury. The president makes his deed to Baton on the 17th day of August, 1865, which is recorded on the same day. Patón afterward, in 1866, conveys to Boatman, and the title thus passes down to Osborn. The proximity in time of these conveyances is a significant fact bearing upon the character of defendant’s title and of his claim of right under it. Fontaine v. Boatman's Saving Institution, 57 Mo. 552.
It is true the defendant now seeks to escape the effect of these deeds by claiming that the title of Patón from the county has no connection with the sale under the mort
The fact that the proceedings in foreclosure may have been irregular, cannot affect the conclusion that the validity of the mortgage was recognized by the county, and that its subsequent claim of title emanated from it, when it assumed to buy at the foreclosure sale, and in a few days afterward assumed to convey to Patón. Indeed, the only title which the deed to Baton could have been effectual to convey, must have been the title acquired at the foreclosure sale. When swamp land is once legally disposed of by the county, and is purchased back again by the county in foreclosing a mortgage for a school debt, it is no longer swamp land thereafter, but is held like any other real estate acquired in that way. The county has the right to dispose of it as the county attempted in 1865 to dispose of this land to Patón, by the deed of the president of the county court, in compliance with the Revised Statutes of 1855. R. S. 1855, p. 502, § 2.
If the deed of the county commissioner in 1860 failed to convey this land to Wilcoxon and Murphy, it is true the land in that event, would remain in the county as swamp land subject to the swamp land acts. And this is the position of the defendant. But in this view of the matter, the deed to Baton could not effect a conveyance of the title, it being for swamp land, and at that time subject to the act of 1857, applying to Nodaway county, which required all
For these reasons I think the county and those claiming the same title from the county, are estopped in equity from maintaining that the county, at the time it was foreclosing the mortgage it held for the school moneys, was already possessed of the identical title upon the faith of which the mortgage was given.
4. administratoe’s sale. V. It is objected that the deed of Isaiah Wileoxon’s administrator of 1861, is void for irregularity. This is an objection to a link in. the plaintiffs’ chain of title below the common source of title, and if it is well taken the plaintiffs will have to give up one-half of their recovery. One-half of their title is derived from Murphy and one-half from Isaiah Wileoxon’s administrator. It is urged by defendant that the report of the administrator’s sale was never properly approved. It seems that the sale was regularly made by Edward Spencer, the administrator, in pursuance of an order of court of the 10th day of February, 1861. In April, 1861, the sale was effected, and the report made out, but it was not submitted to the court till July 14th, 1862. On that day an order was made approving the sale as of the April term, 1861. On the same day the letters of administration of Edward Spencer were revoked by order of the court, and a successor appointed. The approval of his report and revocation of his letters were contemporaneous acts. At the time of the approval, the court had jurisdiction of the administration and of the administrator. The deed had been made by Spencer at the time of the sale, long before revocation of his letters. No final settlement had been made. I think this sale is clearly within the cases upholding judicial sales, notwithstanding minor irregularities. Mc Vey v. Mc Vey, 51 Mo. 406; Rugle v. Webster, 55 Mo. 246;
If the foreclosure of the mortgage of Wilcoxon and Murphy was in compliance with law, then the plaintiffs’ title went back to the county, and by virtue of subsequent conveyances it vested in the defendant Osborn. It seems from the evidence in the case that the sale ordered by the county court was made by the sheriff on the 16th day of August, 1865, during the session of the county court, but not during a session of the circuit court. It was during vacation of the latter court. Such a sale is void in both direct and collateral proceedings. McClurg v. Dollar hide, 51 Mo. 347; Merchants’ Bank v. Evans, 51 Mo. 335; Bruce v. Leary, 55 Mo. 431. This deprives the defendant of the only title which the county ever undertook to convey to defendant or his grantor. It never undertook to convey to Patón the original swamp land title possessed by it, but only the title supposed to have been acquired at the sheriff’s sale. The county, and all parties privy with it, were estopped from dénying that Wilcoxon and Murphy owned the original swamp land title in 1860.
6. adverse possesSI0NYI. The defendant is not estopped from setting up an independent title derived from possession. The adverse possession of the land by him, and those under whom he claims, from 1865 to 1876, would give him absolute title as to all persons, except such as are under the disability of coverture or minority. Such a length of time would also bar the claim of the plaintiffs for redemption of their title or any other title to the land. It seems clear from the evidence that the five parties in this case to whom the court adjudged the right of redemption, are not barred, the running of the statute having
The decree as made by the circuit court is accordingly affirmed.