Senter v. Wisconsin Lumber Co.

GRAVES, J. Action under old section 650 to determine title to certain lands in Dunklin county. The petition is of the very shortest form under such section. The only clause in the petition outside of the ordinary averments that plaintiff owns the land and that defendant claims some title or interest therein, is the following clause : “That said lands are swamp and not susceptible of cultivation, but plaintiff has been in possession thereof, paying taxes on the same, and exercising over them all the acts of ownership and possession of which the said lands are susceptible.” The answer admits the corporate existence of defendant and that it is empowered to transact business in the State, and further admits that it does claim an interest in the lands in suit, and avers that interest to be a fee simple interest in all of such lands. The answer also denies that plaintiff has any interest therein, and prays that defendant be dismissed with, its costs. Defendant’s answer is a little out of the usual in that it does not pray that the court adjudicate and determine title, a prayer usually found in answers filed in suits under this section of the old statute. Reply was a general denial. Upon the issues thus made- the trial court found for the plaintiff, and adjudged that the title to all of such lands was in the plaintiff. From this judgment the defendant has appealed. It is conceded that the plaintiff is not entitled to a judgment for all the lands given him by the decree nisi, but with the view we take of the law of the case there is no necessity to go into the details of this question. It will suffice to say that both parties to this suit claim through Dunklin county as a common source of title, the plaintiff through a sheriff’s deed, — 599 — and the defendant through some three or four patents. Plaintiff begins to deraign his title by sheriff’s deed made in 1860 and acknowledged in 1867. This deed, among other things, recites: “Whereas, on the 16th day of May in the year of our Lord 1860, a judgment was rendered in the circuit court of the county of Dunklin, in favor of Daniel B. Miller, against Dunklin county, for the sum of fifteen hundred and eighty-one dollars and ninety-one cents for debt, upon which judgment an execution issued from the clerk’s office of said court, in favor of said Daniel B. Miller against the said Dunklin county, dated the 18th day of October, 1860, directed to the sheriff of the county of Dunklin, and the same was to me delivered on the 20th day of October, 1860, by virtue of which said execution, I, the said sheriff did on the 20th day of October, 1860, levy upon and seize all the right, title, interest and estate of said Dunklin county of, in and to the following described real estate situated in my said county, to wit:” After describing a large quantity of land it then recites 'that all such land was sold to Daniel B. Miller on the 12th day of November, 1860, for the sum of $522.96, and then thus winds up: “In Witness Whereof, I, Leander J. Taylor, Sheriff of the county of Dunklin have hereto set my hand, and affixed my seal this, the fifteenth day of November, 1860. ‘ ‘ Leander J. Taylor, (Seal) Sheriff of Dunklin County, Mo.” This deed has the following acknowledgment: “State of Missouri, ) County of Dunklin, ) “Be it Remembered, that, on this 7th day of September, 1867, personally appeared in open court, Leander J. Taylor, whose name appears to the foregoing instrument of writing as a party thereto, and who was at the date of said deed sheriff of Dunklin county, — 600 — Missouri, and he acknowledges the same to be his voluntary act and deed as such sheriff for the uses and purposes therein mentioned and expressed. “Given under my hand and seal of the circuit court at office in Kennett, this 7th day of September, 1867. “Leonard T. Bragg, “By ¥m. G. Bragg, Clerk. Deputy.” It was- filed for record on the same day. All of plaintiff’s paper title, if any he has, comes through this deed. He offered a number of mesne conveyances, which we need not detail. In addition to this so-claimed paper title the record, so far as plaintiff’s title is concerned, then shows the following: “The plaintiff then offered in evidence certain tax receipts of the collector of Dunklin county purporting to show that: “Respondent and his grantors paid the said, county and special taxes on the fractional southwest quarter of section nine, township sixteen, range nine, for 1879 to 1886 inclusive, 1892, and 1891 to 1909' inclusive. “Respondent and his grantors paid state and county taxes on the fractional southeast quarter of section nine, township sixteen, range nine, for 1893. “Respondent and his grantors paid state, county and special taxes on the northwest quarter of section eleven, township sixteen, range nine, for 1880, 1883 to 1886 inclusive, and 1892 to 1909 inclusive. “Respondent and his grantors paid taxes on the west half of section thirty, township seventeen, range ten, for 1879, 1882 to 1886 inclusive, and 1892 to 1909 inclusive. “Respondent and his grantor paid taxes on the fractional south half of section twenty-eight, township eighteen, range ten, for 1880, 1882 to 1886 inclusive, and 1892 to 1909 inclusive. — 601 — “To the introduction of said tax receipts the defendant objected on the ground that they were incompetent, irrelevant and immaterial; and that the receipt of taxes by the officers of Dunklin county could not estop the county. The court reserved its ruling. “The plaintiff offered in evidence tax records of Dunklin county, Missouri, to show that the lands were assessed to R. C. Allen in 1879, 1880, 1881, 1882, 1883, 1884 and 1885, and also to show that the lands were assessed to C. R. Allen during the years for which tax receipts have not been offered and that taxes were paid by R. C. Allen until the year 1889, when he died. “Plaintiff, also offered said tax records to show that taxes were paid on those lands by the administrator of R. C. Allen and by the grantees of Wm. A. Allen and T. C. Allen, for 1889, 1890 and 1891. “The defendant objected to the foregoing on the ground that no foundation had been laid by showing that the records were in existence. “The Court: Subject to the objection. What is next? The plaintiff then rested.” This suit was brought in 1909, March 9th, and we will not go into defendant’s answer at this time, further than to state, upon the question of taxes, that the record shows that it had also paid taxes upon these lands for five or six years prior to the date of the suit. For the present this sufficiently outlines the case. General Judgment Against County: Sale of Swamp Lands. I. Of first importance in this case is the validity of plaintiff’s paper title. He must make a prima-facie title before he can call the defendant into court, and have the court declare the alleged claim of the defendant invalid. In Wheeler v. Reynolds Land Co., 193 Mo. l. c. 291, Valliant, J., has well said: “No one has a right to require another to come into court and show his title who can not himself show — 602 — at least prima-facie title; and no plaintiff is entitled to a decree declaring the claim of another invalid until he has shown that he himself has a better claim; in equity, as at law, if one recovers at all it must be on the strength of Ms own title. Therefore, when the plaintiff calls this defendant into court to answer and show what title it has, he is not entitled to a decree declaring that the defendant’s claim of title is invalid until he first shows prima-facie a valid title in himself, even though the defendant offers no proof of Ms own title. If therefore the plMntiff’s proof goes no farther than to show that the defendant’s title is invalid, the plaintiff is not entitled to a decree. If the plaintiff has no valid title, it is no concern of his to know whether or not the defendant’s claim is valid.” It is contended by the defendant that the sheriff’s deed to Miller was and is void upon its face. In other words, that it purports to convey title to swamp land through a sale under a general judgment against the county, and that such lands are not and were not subject to sale in that way. TMs contention we think well taken. Swamp: lands could not be sold under a judgment of the kind and character indicated by the sheriff’s deed in tlais ease. These swamp lands were held by the counties in trust for specified purposes, and were not such as could be subjected to the payment of the general county indebtedness by execution sale. When we say the lands were held in trust by the counties, we do not mean that there was a trust which ran with the land and affected the title thereto, if sold in an attempted exercise of the power of sale given the county, butwe mean that the funds obtained from such a sale were impressed with a trust as. indicated by the purpose expressed in the act transferring, the title from the Federal Government to the State. This is the doctrine of Simpson v. Stoddard County, 173 Mo. 421. It may be urged that the doctrine of the Simpson case was thwarted in Bayless v. Gibbs, — 603 — 251 Mo. 492, and in the opinion in that case there are some strictures, upon the Simpson case, and in fact the reasoning in the Bayless case follows the line of thought and authorities in the dissenting opinion of the Simpson case, but it will be observed that a majority of this division did not concur in the reasoning of the opinion in the Bayless ease. Further the Simpson case is one thoroughly threshed out by the Court in Banc, and when it is overruled the opinion so doing should come from that court, and not from one of our divisions. This much, because the Bayless case in its fullness, is urged here. Personally, I think the law well declared in the Simpson case, upon all the vital questions therein contained, and I concurred in the Bayless case on the sole ground that the invalidity of the patent was apparent from the face thereof, a doctrine recognized in the Simpson case. [173 Mo. l. c. 458-9.] But we need not go to either of these cases for authority in the case at bar upon the question now before us.. That question is, can land, held by the county, to be sold by the county and the proceeds of the sale applied to a given specific purpose, be sold under execution upon a general judgment against the county? To this question we answer no, and if the writing purporting to pass the title has impressed upon its face the evidence of that kind of a sale, then such deed or writing is void and absolutely worthless as a muniment of title. This court held such an execution sale and deed thereunder void, in the early case of State ex rel. Robbins v. County Court, 51 Mo. l. c. 85, whereat Judge Bliss said: “Are, then, the swamp lands within the several counties subject to sale upon execution against the counties ? The affirmative of this question is urged by counsel for the original respondents, for the reason that by the act of March 10, 1869 (Laws 1869, p. 66], a conveyance to the several counties of all the title — 604 — and interest of the State in and to the swamp and overflowed ]ands was provided for. But this act does not specify the nse for which the counties shall hold these lands, nor repeal any provision theretofore creating a use. It is perfectly consistent with any obligation that may have been or may be imposed upon the counties in regard to the disposition of the proceeds of the sale of these lands. It is true, if no disposition is provided for, they might belong to the general revenue and be used for any lawful purpose; and in that case they might or might not be directly liable to seizure for general debts of the county. Of this it is not necessary for us to speak, and for the reason that before the passage of the above mentioned act a specific use had been designated to which their proceeds should be devoted. The legislative intention in this matter is clear and unequivocal. The above act is not the one upon which the counties rely for title; it only specifies the mode of conveying the same. But the previous act of March 27, 1868 (Laws 1868, p. 68, sec. 1), expressly donates, the swamp lands to the counties in which they may be respectively situated,’ and says that they ‘shall be the absolute property of such counties for the purpose hereinafter designated.’ This purpose is designated in section 8, which provides that the ‘net proceeds of the sales, of all such lands, after defraying the expenses of draining, reclaiming, surveying and selling the same, as herein provided, shall be paid into the county treasury and become a part of the public school fund of the county.’ .The same use had been before established as to most of the counties by the act of March 3, 1851, page 238.; so that the several counties, instead of holding these lands for general purposes, have received. them from the State in trust, with power of disposition, and hold them for the use of the 'public schools. So, then, they must beheld as declared by the statute, and entirely — 605 — exempt from any liability for ordinary county indebtedness.” It should be remembered that the execution sale in this case was in 1860, long prior to the Act of 1869. We are not saying that this would make- a difference, but such fact obviates some of the discussion by Judge Bliss in his case. This opinion in 51 Mo. is cited with approval in Simpson’s, case, 173 Mo. l. c. 447, and its doctrine likewise recognized in State ex rel. v. Crumb, 157 Mo. l. c. 561. So upon this question the divers members of this court seem to have agreed, however much there may have been disagreements upon other questions. These lands were improperly sold under the execution in favor of Miller, and the deed to him was void upon its face. Defective Title: Cured by Later statute. II. And if we were to grant that acts of the Legislature after this sale in 1860 had given to the county a title different from the one held at the date of the sale, yet this would not avail the plaintiff. Title acquired afterward wjp not inure to the benefit of a grantee in a sheriff’s deed. [Gibson v. Chouteau, 39 Mo. l. c. 566.] Such a deed only conveys to the grantee the mere “right, title and interest” of the execution debt- or. No covenants of seizure or possession are found in such deeds. After-acquired titles do not pass by such instruments. So that it appears that the very basis of plaintiff’s paper title falls from under him, and upon that theory of the case he was not entitled to the decree granted to him. Estoppel in Pais. III. The doctrine of estoppel in pais is. next invoked as the basis of plaintiff’s title. These lands are and were wild lands. We borrow from prigf 0f plaintiff’s able counsel a state- ¿ ment of the facts relied upon as. an estoppel in pais as between plaintiff and Dunklin county. Counsel says g — 606 — “In this case the evidence shows without contradiction that Dunklin county was indebted to Daniel B. Miller in the sum of $1581.91, and that said Miller and those claiming under him down to and including' respondent have paid the taxes on the lands in suit for the years 1880, 1882, 1883, 1884, 1885, 1886, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908 and 1909, a period of twenty-nine years. For these lands, worth not to exceed $1.25. per acre in the year 1860, Dunklin county has received $1581.91, and the county and the State has. received taxes thereon for twenty-nine years. The question is, shall the county be permitted to retain these lands, or to assert title to them as against respondent, and also retain the taxes assessed, levied and collected upon them for twenty-nine years and refuse to pay the judgment for $1581.91 ? It is well settled that the doctrine of laches and estoppel applies to a county or other municipal corporation as well as to individuals. ’ ’ This statement is somewhat broader than the facts. The record does not show that the county received $1,581.91, or any substantial part thereof, for the lands involved in this suit. But we need not go into the details of this matter.' Nor need we discuss the further question as to whether defendant would be estopped, even if it be granted that the facts worked an estoppel in pais as against the county. This, because in our judgment the facts relied upon did not preclude the county from selling and patenting the land, as it did to defendant’s grantors. Let us reiterate the facts. First, we have a void sheriff’s sale, as evidenced by recitals in the deed made thereunder. Secondly, we have the county officers assessing the lands to the grantee in this void deed, and the county officers receiving from such grantee the taxes as assessed. These are the facts relied upon by plaintiff as and for an estoppel in pais. We recognize that a county can be estopped — 607 — under some facts. That doctrine seems to be generally recognized. But we do not agree to the proposition that the mere assessment of land by county officers, and the collection of taxes levied under such assessments, by other county officers, will estop a county from asserting title to land, to which it has either the legal or equitable title. The Simpson case, supra, deals with the doctrine of estoppel in pais as to counties, but what is there said does not make out a case for this plaintiff. The facts held in solution there are not the facts here. We know of no court which has gone to the length that plaintiff would have us go in this case. The only matter of substance urged as an estoppel is this void sale, this sheriff’s deed, void upon its face, and the fact that the lands were assessed and the taxes collected for a period of years. These things are insufficient. In the case of Hooke v. Chitwood, 127 Mo. l. c. 376, Macfarlane, J., said: ‘ ‘ The lands belonging to the county could only be sold and conveyed in the manner, pointed out by the 'statute. For the purpose of managing and selling swamp land the county court is not the general agent of the county. The statutes constitute the warrant of authority. [Sturgeon v. Hampton, 88 Mo. 213.] Much less could the county he estopped to assert title hy the fact that the county court had levied, and the collector had collected, taxes upon the lands over which the court is given control The italics are ours. So too in the early case of City of St. Louis v. Gorman, 29 Mo. l. c. 599, Scott, J., said: “The city being the owner of the land assessed and sold for taxes to the defendant through the instrumentality of her officers, it is maintained by him that she is estopped to deny the regularity of the proceedings by which he claims title. “The city is a body corporate, clothed with extensive powers for the management of her municipal — 608 — affairs. She can only act through her officers and agents; and if those officers, in violation of her ordinances, do unauthorized acts to her prejudice, it would be hard that she could be bound by them. This surely is not the law in relation to natural persons who act through their agents. If the agent exceeds his authority, his constituent is not bound. Those dealing with agents must look to the extent of their power. Agencies are indispensable in the transaction of the business of men; and, if those who employ them are estopped to deny the validity of the acts performed by them, commerce must be restrained within very inconvenient, if not ruinous, bounds. The State of Missouri owns a tobacco warehouse in St. Louis; if the state officers should assess that property in the name of an individual, and sell it for. the taxes, would any one maintain that she was estopped to deny the validity of a title claimed under such a sale? The State has delegated to St. Louis the powers necessary for her municipal government, thus imposing on her an obligation that would otherwise devolve on the State. The city, in the discharge of this duty, is compelled to act by officers. Now, if the State, acting through her officers, is not bound by their unauthorized acts, we can see no reason why the city, in the exercise of functions pertaining to the State and for the performance of which she is substituted in the place of the State, should not stand, in relation to the agents she may employ, on the same ground that the State would to her officers.. “We must all see the numberless frauds, the sanctioning of the principle insisted on would produce. The argument confounds the city with her officers and assumes that they are the city. If an officer of the city, in violation of her ordinances, makes, a contract with an individual, is the city bound by such a contract? Must not those who contracted with the officers employed by the city see that the officers, with whom they are contracting, conduct themselves in pursuance to — 609 — law? The defendant, claiming that he has obtained the title of the city to a portion of her commons through her officers, is compelled to show that these officers, in assuming to pass a title, acted in pursuance to the ordinances prescribed for the regulation of their conduct on such occasions. This is a well established rule in regard to all those deriving title to land by means of a sale for the taxes. The hare statement of the law in relation to estoppels in pais is sufficient to shoio that it can not apply to transactions where there is the interposition o'f third persons as agents acting in violation of their authority.” Italics are ours. The Supreme Court of Nebraska in the recent case of State v. Ball, 90 Neb. 307, l. c. 315, thus puts it: “The taxing officers are not vested with, discretion to tax or refrain from taxing property within their respective jurisdictions. If they fail to levy taxes upon land subject to taxation, the levy may subsequently be made; if they levy taxes upon land not subject to taxation, the levy is void. They are not vested by law with power to perform any act which will estop the State from asserting title to the school lands, which it holds in trust for the benefit of all of the school ■children within its boundaries.” In the early Michigan case of Crane v. Reeder, 25 Mich. l. c. 320, Cooley, J., said: “It is further insisted, on behalf of- the defend-nuts, that the verdict should be suffered to stand notwithstanding any errors, because the State, by causing the lands to be assessed for taxation, and selling the same for delinquent taxes, waived its right to insist upon an escheat, and estopped itself from after-wards claiming the land. The doctrine, that the State would waive its rights to its lands, or estop itself from claiming them, by taxing them to an occupier, and taking proceedings to enforce payment of the taxes, would be rather startling to the officers having — 610 — charge of the public domain, and would indicate an easy mode in which trespassers might convert their trespass into a complete ownership.” The Iowa court in Howard County v. Bullis, 49 Iowa, l. c. 521, saya: “The conclusion that the county is not estopped to set up its title'to the lands by the unauthorized act of its officers in assessing and selling them, is in accord with our decision in Buena Vista County v. The Iowa Falls & Sioux City R. R. Co., 16 Iowa, 226; Bixby v. Adams County, 19 Iowa, 507. [See, also, St. Louis v. Gorman, 29 Mo. 593; Rossire v. Boston, 1 Allen, 57; McFarlane v. Kerr, 10 Bosw. 219.] ” The Indiana court in Reid v. State ex rel., 71 Ind. l. c. 258, puts the rule thus strong: “Lastly, the appellants ardently insist that the evidence proves a state of facts which shows that the State is estopped in pais by her own acts, from claiming the land against the appellees. “It may be conceded that the evidence fairly proves the following facts: That,'upon the death of Joseph Emisberger, January 10, 1850, the land at once escheated to the State; upon that day the right of the State to the land became complete. The land was sold in February, 1862, to pay the taxes delinquent upon it for the years 1859, 1860 and 1861; that Nathaniel "West was the purchaser of the land at the sale for taxes, and received the regular certificates of purchase therefor from the auditor; that he assigned these certificates to John S. Reid, who, in February, 1864, received the auditor’s deed for the land; that, in December, 1869, John S. Reid conveyed the land to Lafayette McCulloch, in trust for the benefit of Nancy J. Reid, in pursuance of which McCulloch, in 1872, conveyed the lands to Nancy J. Reid; that, ini 1873, John S. and Nancy J. Reid sold and conveyed the land to Christian F. Smith, who has ever since been in possession thereof and claiming title thereto. All of these — 611 — deeds of conveyance were duly recorded. Lasting and valuable improvements have been made upon the land since its sale for taxes. It may be conceded, too, that these facts show that the State, through her officers, sold the land for delinquent taxes, which partly accrued after she became the owner of the land; that the proper public officer made a deed of conveyance of the land two years after its sale for taxes, at a time when the State owned the land, and that the State made no claim to the land until twelve years after the sale for taxes — and it may be presumed that she collected her taxes from it during all this time — while it was held and claimed adversely, under the sale. “But all these things conceded, it does not follow, in our judgment, that a case of estoppel in pais is made out against the State from asserting her title to the land by virtue of the escheat. In the absence of misrepresentation op fraud, of which there is no pretense, it is of the essence of an estoppel in pais that the party claiming the benefit of the estoppel shall have acted in ignorance of material and relevant facts within the knowledge of the other party, or which the other party ought, under the circumstances, to have known and communicated. No just claim can be made that the purchaser at the tax sale in question, and the successive grantee under the tax deed, were not as well acquainted with the facts, and as able to learn them by inquiry, as the State or her officers who had any part in making the sale and conveyance. To say the least, the'parties had equal opportunity to know the facts, and were alike bound to know the law, and if there is any estoppel in the case, it is. not in pais, but by deed. But it will hardly be contended that an auditor’s deed, made in consummation of a sale for taxes, can bar the assertion by the State of any claim or right to the land sold. Neither by express words nor by implication of law does such a deed contain a covenant either of seizin or warranty. It — 612 — does not purport to convey any right, title or interest of the State in the land other than its lien for the taxes assessed; and none of the parties to the sale in question could have supposed that a transfer of the title held by escheat was intended.” And in the later case of The State v. The Portsmouth Savings Bank, 106 Ind. l. c. 458, the same court said: “Did the assessment of taxes upon the lands in dispute, the collection of the same, and appropriation of the amount collected to public uses, estop the State to assert its title to the land? Bright and his grantees were claiming to own the land, and the taxes were assessed, doubtless, under the mistaken notion on the part of the officers, that the claim was well founded. Those officers, however, were ministerial officers, whose powers and duties were defined by statute. They had no power to bind the State, except when acting within the scope of their authority. The title being in the State, the lands were not taxable. The unauthorized acts of the ministerial officers in assessing taxes upon it, and collecting the amount from those claiming the land, will not estop the State to assert its title, even though the amount so collected by the officers had by them been appropriated to public uses. [Reid v. State ex rel., 74 Ind. 252, and cases there cited; McCaslin v. State ex rel., 99 Ind. 428; Union School Tp. v. First Nat’l Bank, 102 Ind. 464; State ex rel. v. Jones, 95 Ind. 175; Pettis v. Johnson, 56 Ind. 139; Mattox v. Hightshue, 39 Ind. 95; County of Buena Vista v. Iowa Falls, etc., R. R. Co., 46 Iowa, 226; Crane v. Reeder, 25 Mich. 303; City of St. Louis v. Gorman, 29 Mo. 593; United States v. Maxwell Land-Grant Co., 21 Fed. 19.] ” It will be noticed that this court like the Iowa court, cites with approval the opinion of Scott, J., in 29 Mo. 593 cited by us’ supra. — 613 — In the case at bar the county of Dunklin has done nothing to estop< it from claiming title to the land. Before selling to defendant’s grantors, it had not sold the land. It is true that Miller attempted to sell it and take the title, if any, the county had, but this was no act of the county. Miller’s attempt was futile and resulted in a void deed. The title of the county was unaffected, and the property was not subject to taxation. The acts of assessing taxes against this public property, as held by the authorities, were void acts, and can not constitute the basis for an estoppel in pais. The plaintiff, therefore, made no prima-facie case of title, and his petition should have been dismissed and judgment entered accordingly. The judgment is reversed and the cause remanded to the circuit court with directions to dismiss the petition of the plaintiff and enter judgment for the defendant for its costs. All concur: Woodson, P. J., and Bond, J., in result only.