Nall v. Conover

GRATES, J. Plaintiffs, the heirs at law of Robert C. Nall, deceased, bring this action under section 650, Revised Statutes 1899, to have the court declare their interest in and to eighty acres of land in Pemiscot county. The petition is practically in usual form. Therein, they allege that Robert C. Nall was the owner in fee simple of this land and died so seized thereof, and aver that they, his heirs at law, are now “the absolute owners in fee simple and claim that title” to the real estate mentioned. They charge that defendant claims some title, estate or interest in the land, the nature of such claim being unknown. They then ask the court to ascertain and determine title. By answer, the defendant first denies that plaintiffs were owners of the land and admits that he claims title thereto and avers that he is the owner thereof in fee. For a second count in the answer denominated “another and counterclaim” the defendant sets up what is usually found in a petition under section 650', and winds up with the usual prayer for the court to ascertain and determine title. Reply was a general denial of all new matter in the answer. The cause was tried before the court. By its judgment the court found and decreed the title to be in defendant, and from such judgment the plaintiffs have appealed. Plaintiffs, to make their case, introduced in evidence the Act approved March 28, 1901, making C'arleton’s Abstract Books, or certified copies of the entries therein contained, evidence of land titles of Pemiscot county. There were four entries from these abstract books introduced hy plaintiffs, only one of which may be required to be noted in detail. Entry No. 1 shows that the land in dispute passed by act of Congress to the State of Missouri: said act of Congress of date September 28th, 1850'. Entry No. 2 shows title passing — 485 — from the State to Pemiscot county by patent dated December 24th, 1875. Entry No. 3 thus reads: “Pemiscot County to Thomas C. Powell, Certificate of Entry No. 951, dated May 8, 1858; consideration $100; recorded in Register’s Book No. 1, at page 34; lands conveyed, the West half of the North West quarter of Section No. 17, in Township No. 17 North, of Range No. 13 East.” Entry No. 4 shows a warranty deed from Thomas C. Powell and wife to Robert C. Nall, dated October 24th, 1859. Plaintiffs then showed the death of Robert C. Nall on December 18th, 1879; and that they were his lawful heirs, and rested their case. Defendant offered instruments affecting the title thus: From Carleton’s Abstracts, the following: “Thomas C. Powell and John H. Powell to William Johnson. Title Bond. Dated August 15, 1857. Filed and recorded March 13, 1858. Book “A.” Page 535. Consideration $480.00. Acknowledgment regular. The above Bond is for the Northwest quarter of section 17, Township 17, Range 13, East. Containing 160 acres.” Then a warranty deed from Jesse Huffman and wife to John Cotton of date January 25th, 1872, conveying this and other lands. By his deed of September 22nd, 1879, John Cotton conveyed the same lands to Milliard F. Cotton. Milliard F. Cotton conveyed the northwest quarter of section 17, township 17, range 13 east, to S. N. McAdow. This includes the land in dispute in this ease. April 18th, 1895', S. N. McAdow conveyed the same land to Ceorge W. Alvey. May 15th, 1895, George W. Alvey conveyed to Nelson J. Ball the same land, except the southeast forty thereof. November 3rd, 1900, Nelson J. Ball conveys the same 120 acres to T. L. Price. May 8th, 1901, T. L. Price conveyed the same 120 acres, which includes the 80 — 486 — acres in dispute in this case, to W. P. Carter. July 18th, 1903, W. P. Carter conveyed the same 120' acres to the defendant, J. R. Conover. Defendant then proved by witnesses that Thomas C. Powell admitted that they had received the pay for the land mentioned in the bond for a deed. They also showed by parol that the same land was sold at an administrator’s sale of the William Johnson estate, and that Jesse Huffman was the purchaser. In addition to the record title above disclosed and to the facts above stated, the defendant attempted to -show title under the Statute of Limitations. In so doing, it appears that most of the active parties were dead. Johnson was dead, Powell was dead, Huffman was dead, in fact all of the leading factors in the transaction were shown to be dead. It was shown, however, that Jesse Huffman, the alleged purchaser at the administrator’s sale of William Johnson, deceased, sold and conveyed about four hundred acres of land to John Cotton, which land was contiguous, and which tract included the eighty acres in dispute. This transfer, as above indicated, was by a warranty deed in January, 1872. Later, in September, 1879, John Cotton conveyed the same lands to his son, Milliard F. Cotton. This tract of four hundred acres or more included lands in section 18 and section 17 and section 20 in township 17, range 13 east, so situated as to be one contiguous body. It is shown by the evidence that John Cotton had built a house and cleared the land on that small portion thereof located in section 20. He had also cleared a portion of the east half of the southwest quarter of section 18', which comers with the land in dispute in section 17. Milliard F. Cotton, upon his purchase, took and held the possession of the entire tract from the date of his deed on to the time he sold it as indicated in the record evidence above stated. By the parol proof it was further shown that Milliard F. Cotton claimed the land in question — 487 — in connection with his whole tract, hereinabove mentioned; that he actually lived upon and farmed a part of the four hundred acres comeriüg with the eighty in dispute, and that in connection with said occupancy he used the eighty in dispute for the purpose of obtaining firewood and rails for the balance of his farm and in addition cut and sold timber therefrom. In addition to these facts, it appears that Milliard P. Cotton so occupied and claimed said land from the date of his deed in 1879 to his conveyance thereof in April, 1895. Tax receipts were introduced showing payment of taxes on this land by Milliard P. Cotton from 1889' up to and including 1896, and further that from that time on-his subsequent grantees likewise paid the taxes up to the time of this suit. There is no evidence as to what John Cotton did toward payment of taxes, but there is evidence showing that he took possession of and cleared portions of the four hundred acres of land located in sections 20 and 18. It must be borne in mind that all the records were destroyed when the court house of Pemiscot county was burned in 1882, which of course included the probate records and the tax records prior thereto. There is no evidence of a substantial character tending to show that the plaintiffs or any of them, or their predecessors in title, ever paid any taxes on this land. There is substantial evidence tending to show that John Cotton claimed the entire tract from the date of the deed from Jesse Huffman and much stronger evidence tending to show that Milliard P. Cotton claimed title to this land and exercised acts of ownership thereover from the date of his deed in September, 1879. This substantially states all facts necessary for a disposition of the cause. I. As a preliminary question it should be determined whether or not there is a common source of title proven and if so what such common source of title is, — 488 — for the record contains no admitted common source of title. To the end of fully discussing this point, we have set out in full the two record entries bearing thereon: .The plaintiffs claim that-a common source of title has been established by the proof. That such common source of title is Thomas C. Powell. In this contention they rely upon record entry No. 3 introduced by them, which shows a certificate of entry No. 951 to Thomas O. Powell, as recorded in Register’s Book No. 1 at page 34. To this certificate of entry they add the title bond executed by Thomas O. Powell and John H. Powell to William Johnson, the record of which was introduced by the defendant. We' agree with the doctrine of Harrison Machine Works v. Bowers, 200 Mo. l. c. 235, wherein Judge T MMivr in effect held that the trend of our cases was to the effect that if there was an agreed common source of title, or both parties assume a common source of title, subject to certain exceptions, the plaintiff need not go back of such common source in making his case. It should be added now that if no such common source of title is assumed, admitted or proven, then, under section 650, the plaintiff must prove his interest in the land beginning with the Government. In other words, if he relies upon a paper title, as in this case, such paper title must be complete and adequate. To start with, the plaintiffs in this case were not relying upon an admitted common source of title, nor upon an assumed common source of title, nor did they attempt to prove a common source of title. When they closed their case they relied upon what they thought was a clear paper title, when supplemented by proof of the death of deceased and proof that they were the legal heirs of the last grantee in their chain of title. Had they stopped there, as they did, and the defendant stopped at the same point, and had there been a missing. link from their chain, the court could not have declared title in them. The question now is, was there — 489 — a missing link in the chain of title as evidenced by the record evidence, and further if so has the defendant’s evidence supplemented theirs so as to change the result! Let us take first the paper title of the plaintiffs. One link of that title was a register’s certificate under the Act approved March 1, 1855. Section 4 of that act reads: “When any of said lands shall be sold in any of the modes pointed out in this act, the register shall make triplicate certificates of the fact, describing the. land so sold by its numbers and quantity, to whom sold, and the amount of the purchase money per acre, and in the aggregate — one of which certificates he shall deliver to the purchaser, file one in his office, and transmit the other to the Register of Lands at Jefferson City, with an abstract containing the number of the certificate, the name of the purchaser, the number of the land, and the amount of purchase money.” Prom the certificate, or rather the copy from Carleton’s Abstract Books, it would appear that Thomas C. Powell had taken the first step toward purchasing the land in question. But section 5 of the same act provides a further step to be taken. This section reads: “When a certificate of purchase shall be presented to the Receiver of Public Moneys, and the money paid, he shall issue triplicate receipts to the purchaser, stating the numbers and quantity of the land, the name of the purchaser, and the amount paid per acre, and in the aggregate — one of which receipts shall be delivered to the purchaser, one filed in his office, and the other transmitted to the Register of Lands at Jefferson City, with such an abstract as is required to be transmitted by the Register in the next preceding section.” And section 6 of the same act further provides: “TJpon the receipt of said certificates, receipts and abstracts at the office of Register of Lands at Jefferson City, agreeing with each other, the Governor shall — 490 — cause a.patent to be issued to tbe purchaser for the lands he shall have purchased.” The record in this case fails to show any patent to Powell. It fails to show any compliance with section 5 of the act, set out, su-pra. It only shows that under section 4 of the act, supra, Powell selected o,r located the land as a purchaser. Of course, had it been proved that Powell, in pursuance of his selection or location as evidenced by the certificate of the register, had followed it up by a payment of the amount to the receiver of public moneys as provided in section 5, then there would have been in him an equitable title, even though a patent had not issued as provided for by section 6, supra. But such is not this case. Two questions are here presented, (1) is the register’s book of selections or locations, such a.book affecting land titles as was contemplated by the Act of 1901, which made Carleton’s Abstracts evidence of title, and (2) even if it is such a book, does the mere selection or location for purchase of a tract of land, evidence any title, either legal or equitable, until something further is done? An examination of the Act approved March 1st, 1855, will show that it relates to ten counties, of which Pemiscot is one. The act provides that as to all the counties named therein, except Scott, Dunklin and Pemiscot, the county clerk shall be ex officio register of lands, and the county treasurer shall be ex officio receiver of public moneys. In the three excepted counties, i. e., Scott, Dunklin and Pemiscot, a register of lands and a receiver of public moneys were to be elected by the voters. They were required to give bond, but not a word said about their keeping a record, either public or private. Not being a record required to be kept by law, we hardly see how a mere abstract thereof can be made evidence of land titles, any more than .the abstract of any other private record or memoranda. Nior do we think that when the Act of 1901 togeth — 491 — er with, its preamble was passed, it was intended to make Car letón’s Abstract Books evidence of title further than they undertook to abstract instruments affecting titles which were required to be made public by record. But we need not pass upon this question now. The other matter is fatal to the paper title of plaintiffs. The only thing that plaintiffs claim is a certificate of purchase as provided in section 4, supra. These certificates are made out in triplicate, one going to the purchaser, one.to be retained by the register, and one to be sent to the register of lands at Jefferson City. NY provision here for any other record, except the copies aforesaid. Then by section 5, supra, when the purchaser presents his certificate of purchase from the register to the receiver, and pays the money, then the receiver issues triplicate receipts, one to the purchaser, one to be retained at his office and the other to be transmitted to the register of lands at Jefferson City. Then by section 6, supra, if the certificate from the county register and the receipt from the county receiver as transmitted to the register of lands at Jefferson City agree with each other, then the Governor caused a patent to issue. It is clear under this law that the plaintiffs failed by their entry No. 3 from Carleton’s Abstracts to show either a legal or equitable estate. No attempt is made to prove the loss of the triplicate certificates, for at least one of them should have been in Jefferson City. No attempt to prove payment, either from the Receiver’s Books, or from the triplicate copy of the receipt on file in Jefferson City, if in fact any payment was made. No patent was in evidence. Had it been shown that the money had been paid, an equitable title might have resulted from that proof, but there is no such proof or even an attempt to make it. Under the proof presented by the plaintiffs neither legal nor equitable title was established in plaintiffs. Certificates of this — 492 — character were held in judgment by this court in the recent case of Phillips v. Trust Co., 214 Mo. 669. II. It thus appears that there is a missing link in plaintiffs’ chain of title, and therefore no decree could go for them unless there was a proven common source of title, behind which neither party could go. There is no admitted common source of title, and we think no assumed common source of title, because defendant by way of defense and in support of his cross-bill undertook to prove title by adverse possession under the ten-year Statute of Limitations. Going to the evidence as to whether or not it shows a common source of title, we find that plaintiffs claim under a certificate of purchase from Pemiscot county to Thomas C. Powell of date May 8th, 1858. The only thing outside of the Statute of Limitations introduced by defendant, is a title bond executed by Thomas O. Powell and John H. Powell to William Johnson, of date August 15, 1857, and by parol and record evidence they undertake to deraign title from that title bond forward. Whether they did so or not is immaterial on the question under discussion now. Does this record evidence prove a common source of title? We think not. Plaintiffs claim through Thomas C. Powell alone. Defendant attempted to deraign title from Thomas C. Powell and John H. Powell. There is a difference between a single grantor and two grantors. Plaintiffs claim through one,-who had no paper title, and defendant claims through two, neither of whom had a paper title. Under these circumstances it cannot be said that a common source of title was either assumed or shown. Nor was such admitted. In Phillips v. Trust Co., supra, we had to deal with a certificate of purchase in New Madrid county, which is one of the ten counties mentioned in the Act of 1855. One August E. Shields had a certificate of — 493 — purchase. This he assigned to Shapley R. Phillips. The following receipt was introduced in evidence: “Received of Shapley R. Phillips two thousand two hundred and thirty-three dollars and seventy-four cents in payment of land bought of the county by Edward Coleman, ¥m. D. Waldrop and Augustus E. Shields, and in final payment for all land they bought at the May term, of our county land sales, in 1857. “August .14,1860. “Geo. W. Dawson, Treasurer.” Phillips was depending upon that receipt in conjunction with his assigned certificate from Shields for title or at least equitable title. Discussing this receipt this court then said: “It will be observed by reading the Register’s certificate of sale of the land to August E. Shields, dated May 23, 1857, that Shields paid nothing whatever to John T. Scott, the register, for that certificate of purchase, and the only evidence offered tending to prove Phillips paid the. county for the land described in that certificate was the receipt of George W. Dawson, treasurer of the county, dated August 14, 1860. By reading that receipt it will be seen that it does not mention the land described in the’certificate of sale, dated May 23, 1857, signed by John T. Scott, register of the swanrp lands, but, upon the contrary, it in express terms acknowledges the receipt of the purchase money for lands sold by the county to Edward Coleman, Wm. D. Waldrop and Augustus E. Shields. “No court could be warranted in finding that the lands sold by the county to the three persons named in the treasurer’s receipt were the same lands described in the certificate of sale, dated May 23, 1857. The legal import of the language employed in the treasurer’s receipt is that those three gentlemen purchased the lands therein mentioned as tenants in common and cannot be tortured into meaning that it re — 494 — fe,rred to separate tracts of land purchased by each of them in severalty. That being true, then there is no evidence that plaintiff or any of those through whom he claims title ever paid the county one cent for the land sued for; and it cannot be claimed that Phillips was the equitable owner of the land or that the county held the legal title thereto as trustee for the benefit of the plaintiff. The county, therefore, having never disposed of the legal or equitable title to the land, she had the perfect legal right to convey it to defendant’s grantors. ’ ’ So in this case it cannot be said that when one party relies, upon Thomas C. Powell alone for title, and the other relies upon Thomas C. Powell and John EL Powell, there has been proven a common source of title. Therefore the evidence failing to show either an admitted, an assumed or a proven common source of title, and the plaintiffs' having relied' upon their paper title alone, they must fail unless they show a clear record or paper title. This they failed to do, there being absent one link in their chain of title. There was no error in the judgment wherein it held that plaintiffs had no title to the land involved herein. III. Was the decree right in decreeing title to the defendant? We think so. Concede that plaintiffs have failed to deraign title from the county, and concede further that defendant has failed to deraign by conveyances a title from the county, then how stands the case? Plaintiffs claim that the common source of title is Thomas C. .Powell, but the evidence shows that they did not rely thereupon and attempted to deraign title from the government. Taking the proof both pro and con, it does show that Pemiscot county owned the land. It fails to show that by legal conveyance either the legal or equitable title passed from the county. It did not pass to Thomas C. Powell, as we have hereinabove — 495 — shown. Neither did it pass to Thomas C. Powell and John H. Powell, so far as disclosed by this evidence. Bnt whilst this is true, the Statute of Limitations will run against a county. In the case of Dunklin Co. v. Chouteau, 120 Mo. l. c. 595, it is said: “Distinction must also be made between property held for strictly public purposes, as for streets, parks, commons and the like, and property held by the corporation in its private character. [2 Dill, on Munic. Corp., sec. 675.] This distinction is made in our present Statute of Limitations. [E. S. 1889, sec. 6772.] These swamp lands would not come within the terms of that section, and hence the Statute of Limitations would run in favor of one in adverse possession, even as against the county.” It should be remembered that Dunklin county is one of the ten counties coming under the Act of 1855, as is also Pemiscot county. Conceding then, as this case and others hold, that the Statute of Limitations will run against the county, it then becomes necessary to consider, in behalf of the defendant, whether or not either he or he and his predecessors in title have acquired title by adverse possession as against the county. We need not in this inquiry consider plaintiffs and their immediate predecessor in title, because they never acquired even an equitable title against the county. Under the proof, John Cotton in 1872, by warranty deed, acquired what he evidently thought was title to four hundred acres of land in one contiguous body. On this tract he moved and cleared a portion thereof, claiming the whole. A part of the land actually cleared and cultivated by him was in section 18, which adjoined to the west the land in dispute. In 1879 and whilst plaintiffs’ predecessor was yet living, this land (four hundred acres) was conveyed to Milliard F. Cotton, and he, as the proof shows, for much more than ten years actually claimed title to the whole tract and lived upon one corner of the — 496 — tract, and cultivated this corner and other portions of the four hundred acres. As to the land in question, he got for more than ten years his firewood therefrom; he got his rails therefrom for his entire farm, including the tract in dispute, although the tract in dispute was never fenced; he cut and had sawed timber therefrom; he cut and sold timber therefrom; he paid the taxes thereon, and his successors in title have paid the taxes thereon since his conveyance. Plaintiffs and their predecessor in title have paid no taxes, as shown by the evidence. There are some general statements of paying taxes upon this and other lands owned by Mr. Nall, but no county officer could find a record thereof, and the testimony is nothing more than mere hearsay. Under the evidence in this record, we are of opinion that when John Cotton in 1872 took possession of this tract of four hundred acres, including the land in dispute, under a warranty' deed from Jesse Huffman, he took possession of the whole tract, and when his son followed in the possession in 1879, he likewise was in the possession of the whole tract, and that prior to the time Milliard F. Cotton conveyed, a complete title, under the Statute of Limitations, had ripened in him, and when he conveyed he conveyed a complete title in fee simple, which title has regularly passed by mesne conveyances to the defendant herein. So believing, the judgment below is correct and should be and is affirmed. All concur.