Van Pelt v. Parry

LAMM, P. J. This suit was brought under section 650, Eevised Statutes 1899, to try, define and adjudge title to a part of lot three in block thirteen of the city of Lamar (original town) — said part being 15 feet by 120 feet, set forth by metes and bounds. The petition alleges that Charles Van Pelt has a life estate under the will of Mary E. Van Pelt, deceased; that the two minors, Eobert and Stanley, own the reversion, to-wit, a fee simple subject to the life estate of Charles; and that the defendant, Nancy, claims an interest or estate in the premises adverse to plaintiffs, although without right or title to do so. By her amended answer Nancy denies the allegations in the petition and states her claim to be that she was married to one Joseph C. Parry in 1862; that during the existence of that marriage Joseph was seized of a fee simple estate in the land; that she had never released her right of dower; that Joseph died in 1902 and that she is entitled to dower as his widow. The cause went to the Jasper Circuit Court on change of venue. In that court plaintiffs filed an amended reply, traversing the allegations of the answer, averring that the Joseph C. Parry mentioned therein was twice married; that his first wife was Josephine, who died prior to 1862; that in the month of December, 1856, he and his then wife, Josephine, executed a good and sufficient deed conveying all the right, title and interest in and to said lot and other land to Barton county, Missouri, as a “county site,” and for county seat pur — 688 — poses and that for ten years and more immediately subsequent to the date of said deed and at all times since said date, said, county and its grantees, under whom plaintiffs hold, were in open, actual, adverse, exclusive, continuous and notorious possession of the lot in controversy under a claim of ownership, and' that said Joseph, after the execution of said deed, never had title or was seized or was in possession, or made any claim thereto. The issue being whether Nancy has dower in the locus, the court rendered judgment against her, and she appeals. The case in some phases is singular. The original town of Lamar, the county seat of Barton county, is located on what the record calls the “Parry forty” and the “Peters ten,” i. e., on fifty acres of land designated in that way. The lot in question is part of the “Parry forty,” described as the southwest, quarter of the northwest quarter of section 30, township 32, range 301. In-1855 Barton county was established by an act of the Legislature, commissioners were named to locate its county seat, and the new county was added to the Thirteenth Judicial Circuit. Said commissioners were required to meet at “the dwelling house of George E. Ward.” They met at the designated place and located the county seat, selecting the site as the Parry forty and the Peters ten. Thereupon early in 1857 a town, named Lamar, was surveyed and platted with streets, alleys and a public square, all under the auspices of the county authorities in establishing a county seat — witness an order of the county court recorded in the recorder’s office and fortunately preserved from the wreck of that period: “It is ordered by the county court of Barton county that Allen Petty, the commissioner of county seat of Barton county, proceed to lay off said seat of justice, commencing with a square of 400 feet extent each way with streets around said square of 80 feet — 689 — ■width, crossing at right angles and extending through-the whole extent of the town. Then to lay off blocks of 400 feet front and 160 feet back and lay off said blocks into lots with 80 feet front and 160 feet back; then proceed to lay off another tier of blocks similar in every respect to the former. The last-named tier of blocks to be separated from the first by alleys fourteen feet in width, running at right angles and extending through the whole length of the town; then proceed to lay off another tier of blocks to be separated on the rear of said second tier by streets of fifty feet width, running at right angles through the whole extent of the said blocks to be divided into four lots each. Then proceed to lay off another tier of blocks similar in extent to said blocks to be separated from the next succeeding blocks by alleys fourteen feet in width. Then proceed to lay off another tier of blocks similar in extent to be divided into two lots each, the last named blocks to be separated from the next succeeding blocks by alleys fourteen feet in width. Then proceed to lay off another tier of blocks similar in extent to be divided into two lots each, the last-named blocks to be separated on the rear by streets of fifty feet width, running at right angles and extending the whole length of the town. It is further ordered by said court that said commissioner advertise and sell said lots on the second day of February, A. D., 1857, and that he sell the same on a credit of twelve months, the purchaser giving bond with approved security. It is ordered that no front lot on the public square shall be sold for less than $25. “I, Branch T. Morgan, clerk of the county court of Barton county, certify the above to be a true copy of an order passed by the county court of Barton county as the same remains among the records of said court. In testimony whereof, I have hereunto signed my name and affixed the seal of said court. — 690 — “Done at office this 1st day of January, 1857. “ (L. S.) Branch T. Morgan, Clerk.” Courts were presently opened and regularly held in Lamar until the civil war, the official machinery of the new county was set running and the county offices were located there. It seems that Joseph C. Parry in December, 1856, met with said commissioners, and, being then the apparent owner of said forty as entryman, joined with his then wife, Josephine, in a conveyance of it to Barton county for a seat of justice; that the deed purported to convey an indefeasible estate in fee simple absolute and was put of record; and that after the town was surveyed and the land platted, the county commenced selling lots and a town grew up there before the civil war. The record shows that Lamar was in the track of irregular maraud and warlike maneuvering on the border during that war, the county was harried by both, sides and the town was devastated. Many of its houses were burned, its inhabitants (save two hundred or so) were scattered to the four winds, its temporary courthouse on a lot adjoining the locus and its permanent one built on the square went up in smoke and flame, and the records of the county were mutilated, lost or destroyed through the vicissitudes of that war. The Parry deed has never been seen since the war. If recorded, the record perished. The same may be said of the official survey and plat of the town. However, some fragmentary records exist, for example assessment lists and books for the years 1859-60-61. Some mutilated records have been deciphered and rerecorded and were put in evidence. A few old citizens are spared who remember somewhat faintly these ancient transactions, and plaintiffs sought to supply the lost deed and record data as best they could by them. Of the company assembled at the home of George E. Ward when the commissioners met, located the county seat and examined and accepted the deed from Parry, — 691 — one is alive. The rest are dead. The survivor testified, in effect, that the deed was made by Joseph and his then wife, Josephine, and delivered. The- assessment lists aforesaid show that in 1859-60-61, lots' m Lamar were assessed by their platted number and proper block and in the names of a great many owners* indicating that the records accessible to the then as*sessors showed deeds had been made and the lots had passed to purchasers and that the town was a de facto town. An ancient map was put in evidence, shown to have been long used by county officers for taxing purposes and by conveyancers and the business public generally, though not official. This.map showed Lamar laid out with a public square, with named streets, lots and blocks, in the form designated by the foregoing order of the county court, requiring it to be surveyed and platted, and this map has been universally accepted as accurate. It seems when the war ended the former inhabitants of Lamar in part returned to their homes, and the town, taking on new life, has grown to be a flourishing city. It has been the county seat of Barton county ever since 1857. Prior to making this deed, if it was made, Parry-had. in 1856 entered the whole northwest quarter of said section thirty on a land warrant. He never received a patent from the Government. Sometime after the war it was discovered that the tract was not subject to entry and his entry was canceled, by U. S. Government officials, as in conflict with the Act of Congress in 1850, relating to swamp lands — said northwest quarter being part of the swamp lands granted to the State of Missouri by that act. After the cancellation of Parry’s entry, which was in 1867, as we understand it, the record shows that he and the county court assumed to deal with said northwest quarter on the theory it was swamp land. Accordingly, in that year,, on the theory he had paid to the county one dollar692 and a quarter per acre for said northwest quarter, Parry received a deed from Barton county and a patent from the State of Missouri to said northwest quarter, which deed and patent, under the general description of the land conveyed, included the entire original county seat, then for ten years gone having a $itus and a name as such county seat. We have no concern with any of the northwest quarter except the county seat land. If these conveyances are held valid and operative as to the Parry forty, ignoring everything done from 1857 to that date, then Joseph thereby became the owner of all the unconveyed lots and blocks in the platted town of Lamar, with its streets, alleys, its public square and the courthouse and jail of Barton county, in a job lot (lock, stock and barrel), at one dollar and twenty-five cents per acre. Sometime after this he (then married to Nancy) executed the following deed in which Nancy did not join: “Whereas, I Joseph C. Parry, did on the first day of December, 1856, convey to Barton county, State of Missouri, the following described real estate for a seat of justice for said county, to-wit: the southwest quarter of the northwest quarter and the west half of the west half of the southwest quarter of the northwest quarter of section 30, township 32, range 30, which said deed of conveyance was duly deposited in the recorder’s office of said county on or about the 1st day of December, 1856, for record, and, whereas, said deed has since been lost or destroyed, together with the record thereof. Now, therefore, know all men by these presents, that I, Joseph C. Parry, in consideration of the premises and the sum of one dollar to me in hand paid, for the purpose of supplying the record of said ■deed, do by these presents remise, release and forever convey unto the county of Barton and State of Missouri, and to her assigns the real estate above described. To have and to hold the same with all the — 693 — rights- and privileges, immunities and appurtenances thereunto belonging unto said county of Barton, expressly excepting and reserving from this conveyance any and all town lots or parcels of real estate to which I may have acquired title since the execution of the deed first aforesaid by purchase from the seat of justice of said county or his assigns. Witness my hand and seal this 1st day of March, A. D., 1869. “Revenue stamp 50 cents. .“Joseph O. Pakry. (Seal.)” From that date to his death, in 1902, Joseph C. Parry lived in and about Lamar and at no time questioned the validity of his original conveyance as confirmed by the last one, or laid any claim whatever to any land within the limits of the original town of Lamar, except such as he afterwards acquired to certain lots through mesne conveyances from-the county. The fact is that after the original location of the county seat in 1856 he never by act or word laid claim to the forty acres platted as the town site of Lamar, other than by taking a deed from the county and a patent from the State in 1867, and by his said subsequent confirmatory deed back. Defendant’s right to dower, if any, is based on the proposition that she was married to Joseph in 1862; that he became seized, during coverture, of the whole northwest quarter of section 30, to-wit, in 1867; that, coverture and seizin uniting, she became endowed ; and .that, not having released her dower and Joseph dying, she has an interest as dowress. Plaintiffs darraign title through a conveyance from the county in 1869 to one W. and through him by mesne' conveyances to their testator. They insist that the title, if any, acquired by Joseph in 1867 to the Parry forty inured at once to the benefit of the county under its former grant from him in 1856 for county seat purposes. Moreover, they question the power of the county to convey to Joseph C. Parry — 694 — the site of the county seat as swamp land in 1867. Farther, they argue that there was no seizin in Joseph after his marriage to Nancy, hence she could not "be endowed; and finally they say that the land' having been dedicated to public purposes by Joseph, that dedication discharged it of Nancy’s dower. In our opinion Nancy C. Parry is not entitled to dower in the Parry forty.. This, because: I. It is well to settle some things at the start. For example: (a) As we grasp the position of respondents’ counsel they do not controvert the proposition that Parry, as original entryman on his land warrant, got no title legal or equitable; nor the proposition that Ms entry was properly cancelled by the United States government. The doctrine of such cases as Prior v. Lambeth, 78 Mo. 538, therefore, has no application to the case at bar. (b) Moreover, respondents’ counsel by unmistakable inference concede that the legal title to the whole northwest quarter (barring lots theretofore sold) including as of course the Parry forty, was in the county of Barton in 1867. This concession renders it wholly unnecessary to consider the various U. S. statutes confirmatory of the prior well-known Swamp Land Act of 1850 (9 U. S. Stat. at Large, p. 519, et seq.), whereby the United States granted to the several States the swamp lands within their respective borders. Nor need we review the various acts of the G-eneral Assembly of Missouri in the fifties and sixties whereby" title to swamp lands, granted to Missouri under the Federal Act of 1850, was vested absolutely in the various counties of Missouri within which they lie. The inquiring mind of the student of statutory law, curious to trace the evolution of swamp land enactments, may find them reviewed and discussed in many — 695 — cases; for example, in Cramer v. Keller, 98 Mo. 279; Simpson v. Stoddard County, 173 Mo. 421. (c) No question is made on the form of the deed from Barton county to Parry in 1867. We need not, therefore, inquire whether it was properly executed by the proper official. The case proceeds on the theory that the title to swamp lands could pass (under ordinary circumstances) from the county by its deed to a purchaser and that the county under the existing statutes could convey. Irregularities in such deeds seem largely obviated by a confirmatory and curative act. [Laws 1868, p. 67; Barton Co. v. Walser, 47 Mo. 189.] (d) With the foregoing propositions at rest, we come to a main proposition which is of use as a postulate to reason from, vis.: It must be assumed for the purposes of the case that the question (once vexed) whether county courts in dealing- with swamp lands dealt with them strictly in a trust capacity with fixed limitations on their powers and under a trust which ran with the lands, is no longer an open one since the case of Simpson v. Stoddard Co., supra. That case was in Banc. It was decided by a divided court, but it is the last authoritative utterance on the question in hand. It is there held that under the Acts of 1855 and 1857 and other acts of the General Assembly, the absolute title to swamp lands Was vested in the respective counties, divested of all trusts, and the county court of such county was authorized to dispose of them as it might think conducive to the interests of said county. That case further held, in effect, that estoppel might be invoked against a county to prevent it from questioning its disposition of such lands and the doctrines of ratification and laches might be applied in exceptional cases where facts warranted an application. We do not understand that case to say that a county can sell swamp land as such and divert the proceeds (if — 696 — any), to anything but sohool fund purposes and nothing we say here must be construed that way. II. Assuming that Simpson v. Stoddard County announces good doctrine as summarized under paragraph d aforesaid, can that doctrine be applied to the facts in this case and does it determine it? ¥e think so. This, because: Barton county was organized under chapter 44, Revised Statutes 1855, entitled, “An Act to Provide for the Organization of Counties Hereafter Established.” A clpse reading of that chapter shows that it does not specifically provide for establishing- a “seat of justice” upon lands owned by the county in its own right prior to the location of its seat of justice, but we conclude such power is assumed to exist. By section 6 of that act the commissioners appointed “to select a seat of justice for such county” were authorized to purchase or receive a donation of such parcels of land and town lots, including the place selected as a seat of justice, for such county, as they may think proper, not exceeding 160 acres (if purchased) and not less than fifty acres in any case. By-section 7 there is a provision safe-guarding the county as to the title of the land deeded by the vendor or donor for a seat of justice. By section 8 it is ordained that “the title of the land so conveyed shall vest in such county, and the place selected shall be the permanent seat of justice thereof.” By section 9 it is directed that if the land be purchased, then the county court shall order the purchase money to be paid out of the first proceeds of the sale of lots to be laid out on such lands. Section ll directs that the county court appoint a competent person “as a commissioner of the seat of justice of such new county.” Sections 13 and 14 provide a complete scheme for laying off a town at the place selected .as the permanent seat of justice “into lots, squares, avenues,'streets, lanes and alleys, in such manner and under such regulations” — 697 — as the county court shall prescribe. Lots and squares of ground necessary to erect county buildings shall be reserved from sale by the county court and the scheme contemplates that the residue of the lots shall be sold as lots and deeds made. By section 21 it is ordained that: “The money arising from the sale of lots, after paying all the expenses accruing in the selection of the seat of justice, in laying out the town and selling lots, shall be applied, first, to paying for the land purchased (if any), and the residue shall be set apart, as a specific fund, for the purpose of erécting county buildings, and shall be applied to no other purpose, until all the county buildings, required by law to be erected, shall be fully completed and paid for.” Other sections of the act provide for setting up the machinery of the newly-fledged county and putting its courts and offices in running order. The next chapter of the Revised Statutes of 1855 (Chap. 45), relates to the “Removal of Seats of Justice.” We are not concerned with its provisions further than to point out that the idea of permanency is dominant and that the statutes make it exceedingly difficult to remove county seats and have safe-guarded the subject-matter in many ways — the controlling thought being that when a seat of justice is once established it is established for all time unless removed strictly according to written law. All must agree that the law is related to reason. There are encomiums on the law to the effect that it is the perfection of reason. What reason could be given for the proposition that county seat commissioners, through the acquiescence of the county court or its ratification, could not locate a seat of justice and lay out a town upon land that already belonged to the county? Observe, that when, under the statute, land was donated or purchased the sole effect of that donation or purchase was to invest the county with title. Here, the county already had land and title — — 698 — i. e., all it needed for a seat of justice. Keeping that fact well in mind, we conclude that a statute which authorizes land to he bought or begged by way of gift, for a seat of justice, must be held, in reason, to assume by way of necessary implication, that, if there is no necessity of buying or acquiring land as a gift (as in this case), the seat of justice may be rightly located on land it already owns. Otherwise, we would come to the most lame and impotent conclusion that a county must buy or beg when it had the wherewithal ready at hand to avoid doing either. No individual in his sober senses, moving on right lines, would act that way and we shall not presume that, the statutes of this State intended a county should act otherwise than with common sense. It matters little either to- law or justice that the commissioners in 1856 may, have believed, and that the county court of Barton county then may have been of the opinion, that the Parry forty was not. swamp land and that the county got title through Parry’s original deed in 1856. The thing done is the substance 'and heart of the matter, not what was believed, and the thing done in this instance was to locate a county seat upon the county’s own land in 1856. To these ancient official acts the presumption is applied that officials charged with a duty performed that duty by tracking the law and doing what the law either commanded or contemplated they should do. [See authorities cited by respondent’s counsel.] Here, then, was a permanent appropriation and disposition of the land for the purpose of establishing a permanent seat of justice and that visible, actual, palpable appropriation for that important public purpose, coupled with acts in pais in platting the land into lots and blocks, streets, alleys, lanes, avenues, public squares, etc., and dealing with the property by making sales of lots to build up a county town, made Lamar a permanent seat of justice to all intents — 699 — and purposes and effectually for all time took the Parry forty out of the salable list of swamp lands as such. It was no longer swamp land but land appropriated for county seat ends — i. e., county seat land. Barton county having irrevocably devoted it to county seat purposes, could not turn about in after years and trade or sell it as mere swamp land to a purchaser having full notice that it had been devoted to a seat of justice and that such purpose was alive, on foot, and being carried out. Its power to deal with it as swamp land was functus officio, we think. Parry’s deed of confirmation in 1869, in legal effect, is a solemn recognition by him of a prior, subsisting, irrevocable and dominant appropriation of the land and its proceeds to a public purpose distinct from swamp land and swamp land funds. In legal effect, it is equivalent to his admission that the fee simple estate did not pass by the 1867 conveyances to him as to the Parry forty and that he was merely seized to the use of the county in a trust relation, if at all. If Parry did not have title and if his deed in 1856 was not operative to convey title, yet that deed was good for something. It, at least, showed his participation in the establishment of the seat of justice— a participation also shown aliunde. It at least contributed any rights he thought he had as entryman to the establishment of the seat of justice, and removed any then apparent cloud from the title. His deed of confirmation in 1869 tends to the same end and in terms related back to his former deed. [Crowder v. Searcy, 103 Mo. 97; Brawford v. Wolfe, ibid, l. c. 390, et seq.] We conclude that Joseph C. Parry (taking with full notice, as he did), if seized at all under his swamp land deed and patent of 1867, was seised to the use of Barton county under the aforesaid permanent appropriation of the Parry forty made ten years before; and that such seizin, if any, could not support dower — 700 — under sections 2933 and 2956, Revised Statutes 1899, because he was not seized of an “estate of inheritance” during coverture with Nancy, as required by those sections. It is insisted that the land having been dedicated to public use, Parry’s wife could not be endowed under the doctrine of the Venable case, 112 Mo. 103; the Chouteau case, 122 Mo. 375; the Baker case, 122 Mo. 396; the Chrisman case, 202 Mo. 605. [See, also, Benton v. St. Louis, 217 Mo. 687.] The doctrine of those cases might well apply to the public square and the streets and alleys and the jail lot, etc., but we need not inquire whether it would apply to the lots and blocks in Lamar. That question is reserved. III. In their briefs counsel discuss interesting questions on the legal effect' of the narrations in Parry’s deed of 1869; for instance whether his wife, Nancy, is bound by the narration made in that deed to the effect that a former deed was executed by him in 1856 for county seat purposes which had been lost or destroyed. Further, whether, assuming his 1856 deed was a warranty, the title acquired under the patent from the State and county deed of 1867 inured to the benefit of the county under the 1856 deed. .In the view we take of the case such questions are somewhat afield — the case being disposed of on other grounds. Counsel discuss with force and acumen many-questions relating to the admissibility of evidence. As to those it may be said that the situation and transactions developed at the trial by the oral evidence and fragmentary records introduced were ancient ones. The primary evidence being lost, secondary evidence was allowed to establish lost records, deeds, surveys, plats and to reconstruct for judicial purposes facts and a situation dimmed by time. It is a common-place of the law that the rules of evidence — 701 — are much relaxed under such conditions. We shall not encumber the opinion by citing authorities to thé point. They will be found in the briefs of counsel. We have examined the assignments of- error in this regard and find none materially affecting the merits of the case. It was well tried. This court has been liberal in allowing dower. [Chrisman v. Linderman, 202 Mo. 605, and cases cited.] It has never stood on dry and lifeless technicalities in endowing widows; but we can find no substantial merit in Mrs. Parry’s claim for dower in the lot in question. Accordingly, the judgment should be affirmed. It is so ordered. All concur.