Bell v. Ham

STURGIS, J. This is an action to recover damages for an alleged trespass upon about 400 acres of land in Butler county, Missouri, and cutting1 and carrying away the timber thereon. The trial in the circuit court concerned the title to this land. The trial court found that the plaintiffs had no title and so instructing the jury the trial resulted in a judgment for defendants and plaintiffs have appealed. The plaintiffs claimed — 75 — title as the heirs of William B. Dorn. The land is what is known as military bounty land. By reason of the fact that one Philip Cook was a valiant soldier in Captain Black’s company, Georgia Militia, in the Florida War, he received under the act of Congress of March 3, 1855, in relation to granting bounty land to certain officers and soldiers engaged in the military service of the United States, a land warrant for eighty acres of public land. This land warrant was assigned to Amzi Rudolph and was by him located on a part of the land in question. Thereafter, and before his patent was issued, this certificate of location was assigned by Rudolph to Wiliam B. Dorn, who presented, the certificate of location and assignment to the general land office and a patent was issued to him for this land under date of November 1, 1859. This patent was not recorded in Butler county, Missouri, until November 20, 1912. Like patents for the other lands were issued to said Dorn on assignments to him by Rudolph of other land warrants located on the other lands now in controversy. These patents were all dated in 1859 and none of them recorded in the local land records until in 1912. The plaintiffs are, as stated, the heirs of William B. Dorn and claim title under him by virtue of these patents. The defendants’ title is based on certain sheriff’s deeds, dated and recorded about the year 1889, under executions issued on judgments for taxes in certain suits brought against Amzi Rudolph, the entryman of such lands. These tax suits were brought long before the patents to Dorn were recorded in the local land records. The tax deeds in defendants ’ chain of title purport to convey the title of Amzi Rudolph. The material question for us to decide is as to the validity of defendants’ title derived under these tax suits. It is conceded by both sides that at the times the taxes were levied, the suits thereon brought and the sales had that there was an uncertified plat book of entries in the office of the recorder of deeds of said — 76 — county showing that Rudolph was the entryman of this land. I. It must he held that plaintiffs have the legal title to this land unless the same has been lost to them by reason of these tax suits, judgments and deeds, above mentioned. The land is timberland and has been unoccupied during all these years. No question of any Statute of Limitation or title by adverse possession is raised. It is shown that William B. Dorn, patentee of all these lands, died a resident of South Carolina in 1876, leaving a last will which was admitted to probate in that State in 1877. He devised his real estate, including this land, to his wife for .life with remainder to his children, these plaintiffs. Some objection is made to the regularity of the probate of this will'and the proof of same, but that is immaterial here. If the will is invalid for any reason or not properly probated, these plaintiffs acquired the land by descent. [Graves v. Ewart, 99 Mo. 13, 17, 11 S. W. 971.] The only difference the will makes is that if valid it gave the mother of these plaintiffs a life estate in these lands and cast on her the duty, as life tenant, to pay the taxes and her failure to do so cannot be charged against these plaintiffs, the remaindermen, as laches. As just stated, the tax suits resulting in the tax deeds under which defendants claim title are against Amzi Rudolph and only his interest in the land was sold. There has never been any tax suit against William B. Dorn or these plaintiffs, his heirs. Their interest in this land has never been sold. They have never had their day in court. How then have they lost and defendants acquired their legal title1? The statute in force at the time the tax suits were brought, section 9303, Revised Statutes 1809', provides that such suits should be brought in the name of the State, at the relation of the collector, “and against the owner of the property.” This statute has been amended and is — 77 — now section 11498, Revised Statutes 1909. The amendment relates to bringing suits against the last record owner and whether it accomplishes more than was already accomplished by the courts in construing the section before the amendment we need not now inquire. It had already been held by a line of decisions, beginning with Vance v. Corrigan, 78 Mo. 94, that in a suit for taxes brought against the last record owner resulting in a sale to an innocent purchaser without notice, actual or constructive, of another’s claim of title, the tax sale would be valid and convey a good title although the party sued in the tax proceeding had parted with his title by an unrecorded deed. These decisions are based on the rule that the real owner having a title deed must put it of record in order to make the same valid as against subsequent purchasers in good faith. [Wilcox v. Phillips, 260 Mo. 664, 169 S. W. 55, 59.] This rule obviously does not apply to one whose title is not evidenced by any written instrument, as in case of title by descent, and so it is held that a suit against the deceased ancestor does not affect the title of the heirs though such ancestor was the last record owner. [Perkinson v. Meredith, 158 Mo. 457, 462, 59 S. W. 1099; Adams v. Gossom, 228 Mo. 566, 580, 129 S. W. 16; Gage v. Cantwell, 191 Mo. 698, 91 S. W. 119.] Logically this would apply to one whose title is based on adverse possession under the Statute of Limitations and such title would not be divested by a tax proceeding against the last record owner. See on this point, Adams v. Gossom, 228 Mo. 566, 581, 129 S. W. 16. So too it must apply to one whose title is based on an instrument not necessary to be recorded in the local land records. It follows from this that unless-the plaintiffs or their ancestor, Dorn, were derelict in their duty in failing to file for record in Butler county, Missouri, where this land is situate, the muniments of their title, to78 wit, the United States patents to this land, then the exception to the rule that tax suits must be against the owner of the land based on the last record owner doctrine has no application here. The patents in question, based on an assignment of the certificate of location from, the entryman to the patentee as recited in the patent, made the patentee, Dorn, the first owner of the-fee simple title and de prived the entryman, Rudolph, of any equitable title he had in the land. Had this patent been recorded in Butler county, Missouri, then unquestionably the tax suits to have had any affect on Dorn’s title must have been against him both as the true and last record owner unless the same were brought against these plaintiffs, his heirs, after his death. This would have been true even under the decisions invoked by defendants, to the effect that, in ascertaining the last record owner for the purpose of bringing suit for delinquent taxes, the tax collector may look to the duly certified plat book, obtained by the county court from the United States land office as provided by section 11363, Revised Statutes 190:9', and a suit resulting in a sale of the land to an innocent purchaser is good when brought against the entryman shown by such plat book to be the last record owner as against one claiming under an unrecorded deed from such entryman. [Payne v. Lott, 90 Mo. 676, 681, 3 S. W. 402.] Nolan v. Taylor, 131 Mo. 224, 228, 32 S. W. 1144, was decided on the authority of Payne v. Lott, supra, though the unrecorded instrument in that case was a patent and that case might be binding here if it was the last decision of the Supreme Court on this point. We find, however, that, under the last decision of the Supreme Court, Wilcox v. Phillips, 169 S. W. 55, it is held that a United States'patent to land is not such an instrument as is required to be recorded in the local land records for any purpose and is not such an instrument as is void as to subsequent purchasers in — 79 — good faith unless so recorded. The basis of this holding is the decision of the United States Supreme Court in United States v. Schurz, 102 U. S. 378, 26 L. Ed. 167, where it is said: £ £ The Acts of Congress provide for the record of all patents for land in an office, and in books kept for that purpose. An officer, called the Recorder, is appointed by law to make and to keep these records. This officer is required to record every patent before it is issued, and to countersign the instrument to be delivered to the grantee. This, then, is the final record of the transaction, the legally appointed act which completes what Sir William Blackstone calls title by record; and when this is done, the grantee is invested with that title. ’ ’ This quotation became part of the text of 2 Jones, Real Property, sec. 1377, and that author adds, in section 1378: “The statutes in regard to recording do not apply to conveyances by a State. Such conveyances may be recorded, and generally are,' but their effect as vesting title and affording notice is not dependent upon their being recorded.” This was quoted with approval in Mosher v. Bacon, 229 Mo. 338, 358, 129 S. W. 680, and the principle was applied to patents issued by this State in the case of sale of swamp lands by the various county courts. Wilcox v. Phillips, supra, involves a tax sale and deed thereunder in a suit against the entryman as shown by the certified plat book and the tax sale and- deed, as here, were attacked by the heirs of the patentee whose patent was unrecorded at the time of the tax suit. The case, therefore, is decisive of this one. The court there said: “In the first place, it would seem that to pass title or impart notice neither á patent from the United States nor á patent from the State itself needs record in the county in which the land is situate. . . . The statutes of the State of Missouri, recognizing” the fact that parents emanate from the general government and evidence acts of that government as overlord, do not require, as a condition precedent to vesting title — 80 — or imparting notice, that such patents be recorded in the county in which the land is situate. It would be uncommonly revolutionary and singular if they assumed such a hostile and unconstitutional attitude. To the contrary, our statutes are merely permissive and use the phrase ‘may be recorded.’ [R. S. 1909, see. 10390.] Conveyances that must be recorded are mentioned in another section. [Id. sec. 10381.] Why should taxing officers and tax purchasers not be charged with notice of United States grants by way of patents duly recorded, where the law under which they are made requires a record?” The record here referred to is that of the General Land Office at Washington, D. C. . This holding is in accord with the decisions elsewhere. In Evitts v. Roth, 61 Texas, 81, 86, the court said: “A patent is notice to the world; the record of it is in the general land office.” In Sands v. Davis, 40 Mich. 14, 18, this language is used: “The record of the patent in the proper office in Washington is declared by law to be of the same force as the patent itself. [See McGarrahan v. Mining Co., 96 U. S. 316.] While our recording laws allow and encourage the record of patents in .our county registries, the failure so to record them cannot operate to injuriously affect their validity or operation.” [See also, David v. Rickabaugh, 32 Ia. 540; Sayward v. Thompson, (Wash) 40 Pac. 379; Patterson v. Langston, (Miss.) 11 So. 932; Webster v. Clear, 49 Ohio St. 392, 31 N. E, 744; 32 Cyc. 1031; 24 Am. & Eng. Ency. of Law (2 Ed.), 86.] II. There is another view of this case equally fatal to defendants’ title. In all the cases in which it has been held that the collector in bringing tax suits could resort to the plat book of entries obtained from the land office by the county court, such plat book was one duly certified by the proper officer and admissible in evidence. It is conceded that when the tax suits in question were — 81 — brought by the collector, the so-called plat book from which he ascertained, if he did, that Amzi Rudolph was the last record owner of this land was not certified or authenticated in any manner. It was found in the custody of the recorder of deeds, who produced and identified it by testifying that it was in that office when he came into office seven years previous and had so remained there. This plat book was not, therefore, even in the custody of the 'proper officer, as the one contemplated by statute to be' procured by • the county court is to be kept in the custody of the county clerk. [Section 11363 et seq., R. S. 1909; Payne v. Lott, 90 Mo. 676, 681, 3 S. W. 402.] It is said in this case, as the basis for treating this plat book as a record showing the last record owner of land, “that such a plat book so certified and on file in the county clerk’s office was receivable in an ejectment, suit to show title in plaintiff. If receivable in evidence for the purpose of establishing ownership, we are unable to perceive why a collector, charged with the duty of suing the owner of land for delinquent taxes thereon, may not resort to such plat book as well as to the registry of deeds for the purpose of ascertaining who is the apparent owner of such land.” Unless duly certified, such plat book could not be received in evidence as showing title to land or for any purpose. How is' the court to know that the collector did resort to the proper plat book to ascertain who was the last record owner unless the same can be put in evidence? This uncertified plat book was offered in evidence for that very purpose and the court received it. This was error.' [Stewart v. Lead Bolt Land Co., 200 Mo. 281, 290, 98 S. W. 767.] We do not see how the trial court is to know or did know that the plat book offered here was the one procured by the county court from the United States land office under section 11363, supra, unless the same was in some manner certified by the — 82 — proper officer of such, land office. Unless it was snch a record the collector had no right to resort to it to ascertain the last record owner. That it was shown by a certificate from the land office, procured for the purpose of this trial, that the uncertified plat book correctly showed the name o'f the entryman- of this particular land cannot by retroaction cure this defect and make it a record when it was not such at the time the collector used it. If so, then any information which the collector might have acted on in the.total absence of any plat book would be sufficient, provided it could be shown that a duly certified plat book would have showed the same entryman. III. Something is said in the briefs and arguments about the injustice of permitting those who have not paid taxes on land for forty years or more to recover in this action. The legal title to land, however, is not lost in that way. In the recent case of Chilton v. Nickey, 261 Mo. 232, 169 S. W. 978, the Supreme Court permitted the heir of the patentee of land to recover the same, although it was shown that the taxes had not been paid by his father or his heirs since 1875, a period about equal in duration to- that shown in this case. In that case the court said: “Appellant insists that the plaintiff: is barred by laches. The doctrine of laches is only applied to defeat a claim for some equitable relief. It is no bar to a claim made under a legal title. It was expressly so held in Hayes v. Schall, 229 Mo. l. c. 124, 129 S. W. 222. In no case in this State has it been held that laches is a bar to a claim made under a legal right as distinguished from an equitable claim or title. ’ ’ For the errors herein noted in not sustaining plaintiffs ’ title to this land, the case will be reversed and remanded. Robertson, P. J., and Farrington, J., concur.