Opinion
April 3, 1941. Rehearing Denied, June 10, 1941. Motion to Transfer to Banc Overruled, July 25, 1941.
1. PUBLIC LANDS: Swamp and Overflowed Lands: Adverse Possession. The Act of Congress of September 28, 1850, dealing with swamp and overflowed lands, was not a grant in promise, but a grant in praesenti, in that said act passed the title of the United States and in that the patent therein required to be issued, upon request, relates back to the date of the act in confirmation of the title passed by the granting clause of the act, and not solely for the protection of those in privity with the holder of the inchoate title. Therefore adverse possession prior to the issuance of the patent does not constitute adverse possession against the United States.
2. PUBLIC LANDS: Swamp and Overflowed Lands: Adverse Possession. The Missouri statutory enactments passed the inchoate title of the State in swamp and overflowed lands to the respective counties, and the patent issued by the county passed the inchoate title of the county, and the subsequent perfecting of the fee simple title relates back. Neither the United States nor the State of Missouri had any interest in such lands that would be affected by the adverse possession of the defendant.
3. ADVERSE POSSESSION: Swamp and Overflowed Lands: Ejectment Before Patent. A party who held both a deed from the county patentee of swamp and overflowed lands and a tax deed issued on account of unpaid taxes against said land, had sufficient title to support an action in ejectment against the defendant, who held only the naked possession of the land, and therefore adverse possession could commence to run in favor of the defendant prior to the issuance of the patent by the United States which perfected the legal title of the plaintiff.
4. ADVERSE POSSESSION: Homestead Application. The fact that the defendant made a homestead application to the United States which was denied did not prevent his possession from being adverse to the plaintiff prior to the rejection of the homestead application. [Hunnewell v. Burchett, 152 Mo. 611, Heckescher v. Cooper, 203 Mo. 278, are overruled in so far as inconsistent.]
Appeal from Dunklin Circuit Court. — Hon. James V. Billings, Judge.
AFFIRMED.
McKay McKay for appellant.
(1) The Swamp Land Act of September 28, 1850, gave an inchoate title to the State but the identification of the lands by the Secretary of the Interior was necessary before the title became perfect or the State was entitled to a patent which vested the fee simple title. 6 Fed. Stat. Anno., secs. 2479, 2480, 2481. (2) Congress has the sole power to declare the dignity and effect of titles eminating from the United States and the whole legislation of the Federal government, in reference to the public lands declares the patent the conclusive evidence of legal titles. Until it issues the fee is in the government which by the patent passes it to the grantee and he is entitled to recover the possession in ejectment. Bagnell v. Broderick, 13 Pet. 242, 10 L.Ed. 449; Irvine v. Marshall, 20 Howe, 558, 15 L.Ed. 994; Fenn v. Holme, 21 Howe, 481, 16 L.Ed. 198; United States v. Schurz, 102 U.S. 167, 26 L.Ed. 378; Wright v. Roseberry, 121 U.S. 488, 30 L.Ed. 1039; Tubbs v. Wilhoyt, 138 U.S. 134, 34 L.Ed. 887; Chandler v. Calumet Mining Co., 149 U.S. 79, 37 L.Ed. 657; Rogers Locomotive Machine Works v. American Emigrant Co., 164 U.S. 552, 41 L.Ed. 553; Michigan Land Lbr. Co. v. Rust, 168 U.S. 591, 42 L.Ed. 588; Brown v. Hitchcock, 173 U.S. 772, 43 L.Ed. 471; Niles v. Cedar Point Club, 175 U.S. 300, 44 L.Ed. 171; Little v. Williams, 231 U.S. 335, 58 L.Ed. 256; Ogden v. Buckley, 116 Iowa 352; Carr v. Moore, 119 Iowa 152; Kittel v. Trustees of Internal Improvement Fund, 139 F. 941; Kearns v. Lee, 142 F. 985; United States v. Chi., M. St. P. Ry. Co., 160 F. 818; Burch v. Gillis, 67 Mo. 102; Hamilton v. Badgett, 293 Mo. 324; General Am. Life Ins. Co. v. Dunklin County, 96 S.W.2d 380; Hamilton v. Badgett, 293 Mo. 324; General American Life Ins. Co. v. Dunklin County, 96 S.W.2d 380. (3) The patent of the United States is the conveyance by which the Nation passes its title to portions of the public domain. For the transfer of that title the law has made numerous provisions designating the persons who may acquire it and the terms of its acquisition. Braden v. Northern Pac. Ry. Co., 154 U.S. 288, 38 L.Ed. 992; Redfield v. Parks, 132 U.S. 239, 33 L.Ed. 327; St. Louis Smelting Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534; Stimpson Land Co. v. Rawson, 62 F. 426; 50 C.J. 1095, sec. 491. (4) As a general rule the issuance of a patent is necessary to divest the United States of legal title to any of the public lands and vest said title in an individual. 50 C.J. 1095-6, sec. 492; Carman v. Johnson, 20 Mo. 108; Brown v. Hitchcock, 173 U.S. 473, 43 L.Ed. 772. (5) Under the Swamp Land Act, the legal title passes only on delivery of the patent, and so long as the legal title remains in the government all questions of right to these lands should be solved by appeal to the Land Department and not to the courts. Brown v. Hitchcock, 173 U.S. 473, 43 L.Ed. 772. (6) The title conveyed by the grant of the United States to the State of Missouri under the Swamp Land Act of September 28, 1850, at the time of the grant, passed only the inchoate or equitable title, subject to be converted to the fee simple or legal title by the survey and designation and the request for patent and issuance of the patent from the government to the state and from the state to the county. All authorities previously cited. (7) The legal title to lands confirmed under Act of Congress on March 3, 1908 (Second U.S. Stat. 401), remains in the United States until the government issues its patent. The confirmation therefore vests in the confirmee nothing more than an equitable title and such title constitutes no defense in a suit in ejectment as a matter of evidence unless pleaded and some way set up as an equitable bar to the action. Carman v. Johnson, 20 Mo. 108; Burgess v. Gray, 16 How. 48; Hooper v. Scheimer, 23 How. 235. (8) The word "Deed" in Missouri homestead law includes a patent and that law provides that a homestead shall be subject to execution upon all causes of action existing prior to the filing in the recorder's office the deed of such homestead when the party holds title by deed (which also includes when a party holds title by patent). Stimpson v. Hall, 163 Mo. 363. (9) While the State has no right to control the primary disposal of the public lands belonging to the United States, yet when the title passes from the government to the state and from the state to the county, courts have jurisdiction to determine the controversy between the adverse claimants thereto. Johnson v. Fleutsch, 176 Mo. 470; McGuire v. Tyler, 40 Mo. 406; Hedrick v. Bealer, 110 Mo. 91; Carman v. Johnson, 20 Mo. 108. (10) A state has no power to declare any title less than one derived from a patent valid against a claim of the United States or against a title granted under a patent of the United States. 50 C.J. 1097, sec. 492; Wilcockson v. Jackson, 13 Pet. 490, 10 L.Ed. 264. (11) The Statute of Limitations did not begin to run until the legal title has passed out of the United States Government and into the State of Missouri and from the State of Missouri to Dunklin County. (a) The Government of the United States is not amenable to Statute of Limitations nor the doctrine of laches. The Statute of Limitations does not begin to run until the date of the Government Patent for the land. Redfield v. Park, 132 U.S. 239, 33 L.Ed. 327. (b) Plaintiff in ejectment must recover on the legal title and cannot maintain an action in ejectment until the execution of a patent for the land by the United States to the state and from the state to the county. Redfield v. Park, 132 U.S. 239, 33 L.Ed. 327; Finley v. Babb, 144 Mo. 403; Finley v. Babb, 173 Mo. 261; Beal v. Harmon, 38 Mo. 436; Gibson v. Chouteau, 39 Mo. 537; Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 535; McIlhiney v. Fiecke, 61 Mo. 329; Miller v. Dunn, 62 Mo. 216; Hammond v. Johnson, 93 Mo. 198; Cummins v. Powell, 97 Mo. 524; Smith v. McCorkle, 105 Mo. 135; Marshall v. Hill, 246 Mo. 23; General American Life Ins. Co. v. Dunklin County, 96 S.W.2d 380; Hamilton v. Badgett, 293 Mo. 324; Tegerman v. LeMarchel, 129 F. 487; Godkin v. Cohn, 80 F. 485; Adkins v. Adams, 256 Mo. 13; Clay v. Mayr, 144 Mo. 376; Kingman v. Seivers, 143 Mo. 519 Turner v. Dixon, 150 Mo. 422; Nalle v. Thompson, 173 Mo. 614; Ables v. Webb, 186 Mo. 247. (c) The statute begins to run against a grantee of the sovereignty (United States Government) only from the time when the purchaser acquired title; in view of the rule excluding the government from the operation of the statute an occupancy prior to that time will not be deemed adverse and can have no effect to give title by adverse possession against grantees of the Federal or State Governments. 2 C.J. 216, sec. 448; Sparks v. Pierce, 115 U.S. 408, 29 L.Ed. 428; Palmer v. Low, 98 U.S. 1, 25 L.Ed. 60; Acksmith v. Johnson, 92 U.S. 343, 23 L.Ed. 682; Burgess v. Gray, 16 How. 48, 14 L.Ed. 839; Jordan v. Barrett, 4 How. 169, 11 L.Ed. 924; Lindsey v. Miller, 6 Pet. 666, 8 L.Ed. 538; Tyee Cons. Min. Co. v. Langstedt, 136 F. 124; Smith v. McCorkle, 105 Mo. 135; Shapleigh v. Cowan, 52 Mo. 559. (d) On the ground that the title of the United States does not pass until the issuance of a patent it is held by one line of cases that the statute runs against a purchaser from the Federal government only from the date of his patent. 2 C.J. 216, sec. 450; Astiazaran v. Santa Anita Land Co., 148 U.S. 13, 37 L.Ed. 376; Redfield v. Parks, 132 U.S. 239, 33 L.Ed. 327; Simmons v. Ogle, 105 U.S. 271, 26 L.Ed. 1086; Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534; Lindsey v. Miller, 6 Pet. 666, 8 L.Ed. 538; Tyee Cons. Min. Co., v. Langstedt, 136 F. 124; Tegarden v. LeMarchel, 129 F. 487; Godkin v. Cohn, 80 F. 458; Marshall v. Hill, 246 Mo. 1; Smith v. McCorkle, 105 Mo. 524; Cummins v. Powell, 97 Mo. 524; McIlhiney v. Fiecke, 61 Mo. 329. (e) The Statute of Limitations begins to run from the time when a complete cause of action accrued and such is in the substance the language of the Statute of Limitations in most jurisdictions; that is when a suit may be maintained. 37 C.J. 807, sec. 152; Boyd v. Buchanan, 176 Mo. App. 56; Stark Bros. v. Gooding, 175 Mo. App. 353. (f) The accrual of a cause of action means the right to institute and maintain a suit and whenever one person may sue another a cause of action has accrued and the statute begins to run, but not until then. 37 C.J., 810, sec. 152; United States v. Southern Pac. Co., 222 F. 197; State v. Logan, 195 Mo. App. 171; Aachen, etc., F. Ins. Co. v. Morton, 156 F. 654; Central Pac. Railroad Co. v. United States, 138 U.S. 84, 34 L.Ed. 951; Landis v. Saxton, 105 Mo. 486; Beaty v. Cruce, 200 Mo. App. 199; Brinsmade v. Johnson, 192 Mo. App. 684.
W.L. Proffer and James A. Bradley for respondent.
(1) The Act of Congress (known as the Swamp Land Act) on September 28, 1850, granted and donated all the swamp and overflowed lands in Missouri, to the State of Missouri, in praesenti, with full power vested in the State of Missouri to dispose of said swamp lands. General Am. Life Ins. Co. v. Dunklin County, 96 S.W.2d 380; Wilson v. Beckwith, 140 Mo. 359; Sexton v. Dunklin County, 246 S.W. 195; Simpson v. Stoddard County, 173 Mo. 421; 2 C.J., p. 217; Natl. Cypress Pole Piling Co. v. Hemphill Lbr. Co., 31 S.W.2d 1059; Linville v. Bohanan, 60 Mo. 558; United States v. Railroad, 146 U.S. 570; Francouer v. Newhouse, 43 F. 236; Deseret Salt Co. v. Tarpey, 142 U.S. 241. (2) The State of Missouri, by its legislative acts of 1851 to 1869, granted and donated all the swamp and overflowed lands situated in Dunklin County, to said county with full power to sell and dispose of said swamp lands. Simpson v. Stoddard County, 173 Mo. 421; Langlois v. Crawford, 27 Mo. 456; St. L.I.M. Ry. Co. v. McGee, 75 Mo. 522; Sexton v. Dunklin County, 246 S.W. 195; General Am. Life Ins. Co. v. Dunklin County, 96 S.W.2d 380; Sec. 11128, R.S. 1929; Masterson v. Marshall, 65 Mo. 94; Clarkson v. Buchanan, 53 Mo. 563. (3) The patent from Dunklin County to Virgil McKay and the warranty deed from Virgil McKay to H.O. Stonum vested H.O. Stonum with at least the clear equitable title to the lands involved. Sexton v. Dunklin County, 246 S.W. 195; General Am. Life Ins. Co. v. Dunklin County, 96 S.W.2d 380; Simpson v. Stoddard County, 173 Mo. 421; Secs. 11128, and 11130, R.S. 1929; St. L., I.M. Ry. Co. v. McGee, 75 Mo. 522; Langlois v. Crawford, 27 Mo. 456; Titus v. Development Co., 264 Mo. 239, 174 S.W. 432; Russ v. Sims, 261 Mo. 27, 169 S.W. 69. (4) The sale of the lands under the judgment for taxes and the sheriff's deeds, dated November 15th and 24th, 1926, to Armor George and E.A. Reishaus and the quitclaim deed from George and Reishaus to Lizzie O. Stonum conveyed the fee simple title to plaintiff. Secs. 9958, 10765, R.S. 1929; Callahan v. Davis, 90 Mo. 78. (5) Plaintiff, Lizzie O. Stonum, claims title to the lands by and through the sheriff's deeds, in November, 1916, and from that date the ten-year Statute of Limitations of Missouri certainly took effect and can be applied as a bar to plaintiff's cause of action as to these swamp lands. Secs. 850, 1366, 1520, R.S. 1929; Simpson v. Stoddard County, 173 Mo. 421; Palmer v. Jones, 188 Mo. 163; Wilson v. Beckwith, 140 Mo. 359; Hunter v. Pinnell, 193 Mo. 142; Callahan v. Davis, 90 Mo. 78. (6) Plaintiff had a right of action in ejectment since the date of the sheriff's deeds in 1926, whether or not a patent had ever issued from the United States, and from the State to Dunklin County, for the lands, because she could maintain such action, for possession, on the mere naked prior possession, without any paper title, either a patent or deed. Fitzpatrick v. Garver, 253 Mo. 189, 161 S.W. 714; Love v. Love, 250 Mo. 491, 157 S.W. 590; White v. Keller, 114 Mo. 483, 21 S.W. 860; Orchard v. Store Co., 197 S.W. 44. (7) Plaintiff, nor her grantors, or those under whom she claimed title had not been in possession of any part of said lands for more than ten years next before filing this suit, nor at any time, and had not paid any taxes thereon for more than ten years, or since 1927. Plaintiff cannot maintain this action. Sec. 850, R.S. 1929; Robinson v. Allison, 192 Mo. 366, 91 S.W. 115; Smelser v. Meier, 271 Mo. 178, 196 S.W. 25; Palmer v. Jones, 188 Mo. 163; Hunter v. Pinnell, 193 Mo. 142; Linville v. Bohanan, 60 Mo. 554; Dunklin County v. Chouteau, 120 Mo. 577; Prior v. Lambeth, 78 Mo. 538; Clarkson v. Buchanan, 53 Mo. 563; Scannell v. Ame., etc., Co., 161 Mo. 606, 61 S.W. 889. (8) Defendant had acquired title to the lands involved by adverse possession which had ripened into the fee simple title before plaintiff filed this suit, because the proof shows, by the admitted and agreed statement of the facts, he did have more than ten full years adverse possession. Unless, because the lands involved are a portion of the swamp and overflowed lands in Dunklin County, and a part of the swamp lands granted by Congress on September 28, 1850, the Missouri Statute of Limitations would not apply. Palmer v. Jones, 188 Mo. 163; Hunter v. Pinnell, 193 Mo. 152; Dunklin County v. Chouteau, 120 Mo. 577; Truitt v. Bender, 193 S.W. 838; Sec. 850, R.S. 1929; St. Louis, I.M. Ry. Co. v. McGee, 75 Mo. 522; Simpson v. Stoddard County, 173 Mo. 421; Abernathy v. Dennis, 49 Mo. 469; School District v. Georges, 50 Mo. 195; Wickersham v. Woodbeck, 57 Mo. 320; Birch v. Winston, 57 Mo. 62; Sexton v. Dunklin County, 246 S.W. 195; General Am. Life Ins. Co. v. Dunklin County, 96 S.W. 380; Natl. Pole Piling Co. v. Hemphill Lbr. Co., 31 S.W.2d 1059; Oxley Stave Co. v. Butler County, 121 Mo. 614; American Stave Cooperage Co. v. Butler County, 93 F. 304; Franklin v. Cunningham, 187 Mo. 184, 86 S.W. 79; Truitt v. Bender, 193 S.W. 838; Scannell v. Am., etc., Co., 161 Mo. 606, 61 S.W. 889. (9) Defendant could acquire title to said lands by adverse possession without color of title. Mather v. Welsh, 107 Mo. 121; Handlan v. McManus, 100 Mo. 124; Cole v. Parker, 70 Mo. 379; Quick v. Rufe, 164 Mo. 408. (10) The ten-year Statute of Limitations of Missouri applies to the lands involved in this case although they are a portion of the swamp and overflowed lands included in the swamp land grant of September 28, 1850. Sexton v. Dunklin County, 246 S.W. 195; Truitt v. Bender, 193 S.W. 142; Wright v. Roseberry, 121 U.S. 488; Francouer v. Newhouse, 43 F. 236; Deseret Salt Co. v. Tarpey, 142 U.S. 241; Simpson v. Stoddard Co., 173 Mo. 421; 2 C.J., p. 217; Linville v. Bohanan, 60 Mo. 554; Langlois v. Crawford, 27 Mo. 456; St. L., I.M. Ry. v. McGee, 75 Mo. 522; Abernathy v. Dennis, 49 Mo. 469; McCarthy v. Alderson, 54 Mo. 320; Hunter v. Pinnell, 193 Mo. 142; Railroad Co. v. Baldwin, 103 U.S. 426; Natl. Pole Piling Co. v. Hemphill Lbr. Co., 31 S.W.2d 1059. (11) The possession of defendant was adverse to plaintiff although no patent had issued from the United States, or from the State to Dunklin County for the lands involved. Wilson v. Beckwith, 140 Mo. 359; Wright v. Roseberry, 121 U.S. 488; Francouer v. Newhouse, 43 F. 236; Harvey v. Hollis, 160 F. 531; Hamilton v. Right, 30 Iowa 480; Clements v. Runkel, 34 Mo. 41; St. L., I.M. Ry. v. McGee, 75 Mo. 522; Abernathy v. Dennis, 49 Mo. 469; School District v. George, 50 Mo. 195; McCarthy v. Alderson, 54 Mo. 430; Wickersham v. Woodbeck, 57 Mo. 59 Birch v. Winston, 57 Mo. 62. (12) The filing of the homestead application by defendant did not stop the running of the State Statute of Limitations in his favor, nor did his possession cease to be adverse to plaintiff. Landes v. Perkins, 12 Mo. 258; Clement v. Runkel, 34 Mo. 41; 2 C.J., p. 108; Northern Pac. Ry. Co. v. Pyle, 19 Idaho, 3; Francouer v. Newhouse, 43 F. 236; Abernathy v. Dennis, 49 Mo. 469; St. Jo. Railroad Co. v. Smith, 9 Wall. 95, 41 Mo. 310; Harvey v. Hollis, 160 F. 531; Hamilton v. Right, 30 Iowa 480; Colvin v. McCune, 39 Iowa 502; Leffingwell v. Warren, 2 Black, 599; Bicknell v. Comstock, 113 U.S. 149; 2 C.J., p. 105; Wrich v. Union Pac. Ry., 108 N.W. 178.
Lizzie O. Stonum, as holder of the record title, instituted this action on August 12, 1938, in ejectment and to quiet title against Sam Davis, who interposed the defense of title by adverse possession since July 22, 1926 (Sec. 1002, R.S. 1939, Mo. Stat. Ann., p. 1121, the ten-year Statute of Limitations with respect to lands). Plaintiff appealed from a judgment for defendant.
The case was submitted on stipulated facts. The lands involved are part of the swamp and overflowed lands passing from the United States to the State of Missouri and from the State of Missouri to Dunklin County. The lands remained mostly covered by water until the construction of the St. Francis river levee in 1915. On January 24, 1916, Dunklin County issued its patent covering said lands to Virgil McKay, who conveyed the same to H.O. Stonum July 30, 1917. On July 22, 1926, Sam Davis went into possession of the lands and has held the same in adverse possession to the present time against all persons whomsoever except the United States government. In November, 1926, said lands were sold under a drainage tax judgment to E.A. Reishaus and Armor A. George, who conveyed the same to plaintiff on November 25, 1926. The lands remained unsurveyed and unplatted until April 7, 1930, "at which time said lands were surveyed and platted by the United States government engineers" and a certified copy of the plat filed with the county clerk. On September 20, 1930, Mr. Davis made application to the United States government to homestead said lands and on March 25, 1933, said application was rejected by the United States, acting through the Department of Interior, on the ground said lands had been granted to the State of Missouri and were not subject to homestead. The United States issued its patent to the State of Missouri on December 28, 1933, and the State of Missouri issued its patent to Dunklin County on January 24, 1934, covering said lands.
Plaintiff asserts, sufficiently stated for the issues briefed, that the Statute of Limitations does not run against the government, Federal or State (Hamilton v. Badgett, 293 Mo. 324, 329 (IV), 240 S.W. 214, 216[5] [1069]), and, as to one who holds an inchoate or equitable title as did plaintiff (General American Life Ins. Co. v. Dunklin County, 339 Mo. 289, 96 S.W.2d 380, 384[3]), adverse possession first begins to run when the fee simple title passes out of the government, that is, upon the perfecting of the fee simple title in such person by patent from the government. Otherwise expressed, may defendant, in calculating his adverse possession, include the time elapsing between July 26, 1926, the date he went into possession, and the issuance of the patents of the United States (December 28, 1933) and of the State of Missouri (January 24, 1934)? The parties present no issue respecting the effect, if any, of the listing and platting of said lands as of April 7, 1930.
Congress, by an act of September 28, 1850, provided, in so far as here involved, that "the whole of the swamp and overflowed lands, . . . remaining unsold on and after the 28th day of September, A.D. 1850, are granted and belong to the several States respectively, in which said lands are situated" (Sec. 2479, R.S.U.S., 43 U.S.C.A., sec. 982); and made it the duty of the Secretary of the Interior "to make accurate lists and plats of all such lands, and transmit the same to the governors of the several States in which such lands may lie, and at the request of the governor of any State in which said swamp and overflowed lands may be, to cause patents to be issued to the said State therefor, conveying to said State the fee simple of said land" (Sec. 2480, R.S.U.S., 43 U.S.C.A., sec. 983.) The provisions of said act appearing at 9 Stat. at L., p. 519, with respect to the grant, read: "shall be, and the same are hereby, granted;" and, with respect to the patent, read: "and, at the request of said governor, cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State."
The United States Supreme Court has said: "Under the Swamp Land Act the legal title passes only on delivery of the patent. So the statute in terms declares. The second section provides that the Secretary of the Interior, `at the request of said Governor' [the Governor of the state], `cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State.'" [Brown v. Hitchcock, 173 U.S. 473, 476, 19 Sup. Ct. 485, 43 L.Ed. 772.] "While, therefore, as held in many cases, the act of 1850 was in praesenti, and gave an inchoate title, the lands needed to be identified as lands that passed under the act; which being done, and not before, the title became perfect as of the date of the granting act." [Rogers Locomotive Works v. American Emigrant Co., 164 U.S. 559, 570 (also p. 574), 17 Sup. Ct. 188, 41 L.Ed. 522. See also Michigan Land Lumber Co. v. Rust, 168 U.S. 589, 592, 18 Sup. Ct. 208, 42 L.Ed. 591; United States v. Chicago, M. St. P. Ry. Co., 218 U.S. 233, 242, 31 Sup. Ct. 7, 54 L.Ed. 1015; Chapman Dewey Lumber Co. v. St. Francis Levee District, 232 U.S. 186, 198, 34 Sup. Ct. 297, 58 L.Ed. 564; McCormick v. Hayes, 159 U.S. 332, 16 Sup. Ct. 37, 40 L.Ed. 171.]
However, these cases do not overrule but they recognize in so far as they treat of the issue, rulings made upon full discussion and consideration, that the act of September 28, 1850, operated as a grant in praesenti to the states of a full and beneficial title to the swamp and overflowed lands within their respective boundaries, lacking only an identification and a patent to perfect the fee simple title of the state, as of the date of the act; that the title of the state did not rest in promise and did not depend but became perfect upon the actual issuance of a patent by the United States; and that the Secretary of the Interior was without authority arbitrarily to affect the title passing under said act. [French v. Fyan, 93 U.S. 169, 170, 23 L.Ed. 812; Wright v. Roseberry, 121 U.S. 488, 496, 500, 509, 7 Sup. Ct. 985, 30 L.Ed. 1039; Tubbs v. Wilhoit, 138 U.S. 134, 136, 11 Sup. Ct. 279, 34 L.Ed. 887.] (Consult quotations from the cases in the recent case of General American Life Ins. Co. v. Dunklin County, 339 Mo. 289, 96 S.W.2d 380, 382.) [See United States v. Minnesota (March 1, 1926), 270 U.S. 181, 202, 46 Sup. Ct. 298, 70 L.Ed. 539.] If the words "are granted and belong" in Sec. 2479 of said act of 1850 constitute a grant in praesenti, the act is worthier evidence of the title than a patent thereafter issued by the Secretary of the Interior as the act is the direct grant by the government of land by quality instead of governmental subdivisions to specified grantees, whereas the patent, required to be issued only upon request in Sec. 2480, is the act of one of the government's ministerial officers. [Consult Grignon v. Astor, 43 U.S. (2 How.) 319, 344, 11 L.Ed. 283; Whitney v. Morrow, 112 U.S. 693, 695, 28 L.Ed. 875, 5 Sup. Ct. 333.] Apparently the United States is a donor with certain duties — duties imposed upon its Secretary of the Interior — to make lists and [1070] plats of the lands and to transmit the same to the governor of the interested state, and a duty, upon request of the governor but not otherwise explicitly imposed or required, to issue patents conveying the fee simple title. [See United States v. O'Donnell, 303 U.S. 501, 515, 58 Sup. Ct. 708, 82 L.Ed. 980.] Difficulty of or delay in identifying the swamp and overflowed lands should not affect the grant. Under the acts of Congress a patent may function in more than one way. Congressional legislation usually contemplates the retention of title until the issuance of a patent and in such instances, the United States having title, the patent passes a perfect and consummate title. In some instances legislation constitutes a grant in praesenti, divesting the United States of all title, and a patent thereafter issued operates as a deed of further assurance, a muniment of title identifying the lands and declaratory of the title passing as of the date of the grant. [Wright v. Roseberry, supra; Deseret Salt Company v. Tarpey, 142 U.S. 241, 251, 12 Sup. Ct. 158, 162, 35 L.Ed. 999, 1002-3.] Section 2480 does not expressly or by necessary implication take away or cut down the grant contained in Sec. 2479; but in providing that the patent convey the fee simple or that the fee simple vest on the patent confirms the quality of the title passing under the provisions of the grant in Sec. 2479 to be evidenced by the patent.
Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 20 L.Ed. 536 (overruling 39 Mo. 534), stressed by plaintiff, involved a "New Madrid location" under the act of Congress of February 17, 1815 (see 3 Stat. at L. 211). Section 3 of that act required the recorder of land titles for Missouri, in specified instances, to issue a certificate, "which certificate being transmitted to the commissioner of the general land office, shall entitle the party to a patent, to be issued in like manner as is provided by law for other public lands of the United States." The United States Supreme Court said ( 80 U.S. 102): "The patent is the instrument which, under the laws of Congress, passes the title of the United States;" and overruled the holding of the Missouri Supreme Court to the effect that a patent, issued in 1862, related back to a location made in 1841 ( 39 Mo. 588 and 594), and that the land was subject to being held in adverse possession subsequent to the location of 1841. The United States Supreme Court reasoned ( 80 U.S. 101) that the doctrine of relation is a fiction of law adopted for the purposes of justice and is applied only for the protection of those standing in some privity with the party acquiring the equitable right to title.
The instant case is distinguishable from the Gibson and like (2 C.J., p. 216, n. 56, p. 218, n. 72, 2 C.J.S., Adverse Possession, sec. 13, n. 76) cases in that the act of September 28, 1850, was not a grant in promise but a grant in praesenti; in that said act passed the title of the United States; and in that the patent therein required to be issued, upon request, relates back to the date of the act in confirmation of the title passed by the granting clause of the act and not solely for the protection of those in privity with the holder of the inchoate title. [St. Louis, I.M. S. Ry. Co. v. McGee, 75 Mo. 522, 525 (2); Langlois v. Crawford, 59 Mo. 456, 472.]
Missouri statutory enactments passed the interest of the State of Missouri in and to the swamp and overflowed lands of Missouri to the counties in which said lands were respectively situated. [Consult Laws 1851, p. 238; Laws 1853, p. 108; Laws 1855, pp. 154, 160; Laws 1857, p. 32; Laws 1868, p. 68; Laws 1869, p. 66.] In so far as material to the issues presented our laws provided that "all of said lands in this State are hereby donated to the counties in which they may be respectively situated, and shall be the absolute property of such counties . . ." [Sec. 12752, of Art. 5, Ch. 81 (relating to swamp and overflowed lands), R.S. 1939, Mo. Stat. Ann., p. 4873. Consult also Secs. 12753-12755, 12780-12782, R.S. 1939.]
We have held that the statutory enactments passed the inchoate title of the state to the respective counties; that the patents issued by said counties passed the inchoate title of the county, and that the subsequent perfecting of the fee simple title in said grantors perfected the title in their respective grantees as of the date of the original divestiture of their respective inchoate titles. [General American Life Ins. Co. v. Dunklin County, 339 Mo. 289, 96 S.W.2d 380, 383, [2, 3], citing Missouri cases. See Varney River Drainage Dist. v. Spiedel, 347 Mo. 1124, 152 S.W.2d 54.] These holdings do not result in sustaining legislative interference with the primary disposal of the soil of the United States (Sec. 4, Act of Admission, [1071] R.S. 1939, p. 55c) if the act of 1850 was a present grant of the title of the United States.
We have no issue respecting the character of the lands or the validity of the grant or the patents. Under the instant record it now stands determined that the United States after 1850, and the State of Missouri after the aforesaid statutory enactments had no interest in said lands; and consequently in 1926, when defendant entered into adverse possession of the lands, neither the United States nor the State of Missouri had any interest therein that was affected by defendant's possession.
Plaintiff also contends that she, and her predecessors in title, did not have a sufficient title to sustain an action for the possession of the lands until January 14, 1934, the date of the patent issued by the State of Missouri, and that the Statute of Limitations did not commence to run against plaintiff's or her predecessors' title until said cause of action accrued on January 14, 1934. Plaintiff here stresses Sec. 1529, R.S. 1939, Mo. Stat. Ann., p. 1582, and cases like Akins v. Adams, 256 Mo. 2, 13(II, a), 164 S.W. 603, 606[7]; Martin v. Kitchen, 195 Mo. 477, 487(1), 95 S.W. 780, 782(1). Akins v. Adams states that in the strict legal action of ejectment plaintiff "must recover on a legal and not a mere equitable title. So, he stands to be cast if there is shown to be outstanding a subsisting legal title. So, he must either recover on his paper title or on title by limitation." In the instant case defendant had only the naked possession. Section 1530, R.S. 1939, Mo. Stat. Ann., p. 1586, authorizes an action for the possession of lands against any person not having a better title thereto in specified instances. [Consult Callahan v. Davis, 90 Mo. 78, 82(1), 2 S.W. 216.] Plaintiff, by reason of possession of the lands by her predecessors in title under a claim of the fee prior to defendant's possession, he being a mere intruder having only naked possession, could have maintained an action for possession. [Dale v. Faivre, 43 Mo. 556; Hall v. Gallemore, 138 Mo. 638, 642(2), 40 S.W. 891, 892(2); Crockett v. Morrison, 11 Mo. 3, 6; Love v. Love, 250 Mo. 491, 498 (II), 157 S.W. 590, 592[2].] The patent from Dunklin County is an evidence of equal, if not greater, dignity of the fee than the evidences of title mentioned in Sec. 1530. Varney River Drainage District v. Spiedel, 347 Mo. 1124, 152 S.W.2d 54, holds that a county patent vested a grantee of swamp lands in identical condition of title with a sufficient interest to subject the same to drainage taxes for the years 1927 to 1934. Logically, then, the drainage tax judgment deeds of November, 1926, in the instant record would have supported an action by plaintiff for possession against defendant. Plaintiff succeeded to the possession and title of the grantors in her chain of title as against defendant. The construction placed on the act of 1850 identifies the lands therein granted by quality as the whole of the swamp and overflowed lands existing, in so far as here involved, on September 28, 1850, the date of the act, and the existence of the lands in dispute as falling within the purview of said act was not conditioned upon future events. 3 Tiffany on Real Property (3 Ed.), p. 641, n. 37, states: "When there has been a grant taking effect in praesenti, the grantee may, even without the aid of any statute, bring ejectment, as having the legal title, though a patent has not been issued to him," citing among others, Deseret Salt Co. v. Tarpey, 142 U.S. 241, 12 Sup. Ct. 158, 35 L.Ed. 999; consult Carson v. Berthold Jennings Lumber Co., 270 Mo. 238, 242(II), 192 S.W. 1018, 1019 (II), and, generally, Clarkson v. Buchanan, 53 Mo. 563, 569; Campbell v. Wortman, 58 Mo. 258; Langlois v. Crawford, 59 Mo. 456, 469 et seq.; St. Louis University v. McCune, 28 Mo. 481, 485; Aubuchon v. Ames, 27 Mo. 89, 93; Wilson v. Beckwith (Banc), 140 Mo. 359, 385, 41 S.W. 985, 992; Sage v. Rudnick, 91 Minn. 325, 100 N.W. 106.
Plaintiff also takes the position that since defendant made application to the United States to homestead the lands, his possession was not adverse to plaintiff prior to March 25, 1933, the date of which said application was rejected. Hunnewell v. Burchett (Div. II), 152 Mo. 611, 615, 54 S.W. 487, supports plaintiff's position. [See also Heckescher v. Cooper (Div. II), 203 Mo. 278, 295, 101 S.W. 658, 662.] On the other hand, court en banc in Clemens v. Runckel, 34 Mo. 41, 44, held that one who enters upon land with the expectation of procuring a preemption under the acts of Congress holds possession with a claim of right to acquire absolute title, and while the possession is not hostile to the United [1072] States it is adverse to all other persons. [See, also, Mather v. Walsh, 107 Mo. 121, 131 (III), 17 S.W. 755, 757(3).] The rule announced by court en banc accords with logic and the weight of authority (consult Annotation, 31 L.R.A. (N.S.) 153; 2 C.J.S. 576, n. 98; 2 C.J. 120, n. 27, p. 130, n. 98; 1 Am. Jur. 849, nn. 6, 7, p. 871, n. 13). The Hunnewell and Heckescher cases inadvertently overlooked Clemens v. Runckel.
The judgment, being for the right party on the record made and the issues presented, is affirmed. Cooley and Westhues, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.