This suit is under Section 2535, Revised Statutes 1909, to determine title to the southwest quarter of Section 15, Township 22, Range 13, in New Madrid County, Missouri. The answer, after a general denial and an averment of title in the defendant, pleads the ten-year Statute of Limitations, the thirty-year Statute of Limitations, laches and estoppel, and facts which it is claimed bar the action by limitation under Section 1900, Revised Statutes 1909. There was a judgment for plaintiff determining title in him, and defendant appealed.
It appears from the record and briefs that both parties to the controversy claim through New Madrid County as the common source of title, the land having *Page 605 been patented by the United States to the State of Missouri in 1856, under the Swamp Land Act of 1850, and by the State of Missouri to New Madrid County in 1857.
Plaintiff claims under Patent No. 310, executed by New Madrid County, November 30, 1859, conveying the east half and the southwest quarter of Section 15, Township 22, Range 13, to Shapleigh R. Phillips. Shapleigh R. Phillips died intestate and on partition proceeding among his heirs the land was set off and adjudged to Amos R. Phillips. Amos R. Phillips died after the institution of this suit, and James Kline, his only heir, succeeded him as plaintiff.
The defendant claims title from two sources: under a commissioner's deed, executed by a commissioner for New Madrid County, November 10, 1881; also under a patent issued by New Madrid County to John Himmelberger, June 29, 1899. These, together with the proceedings leading up to the issuance of the commissioner's deed and patent, were offered in evidence; also mesne conveyances and subsequent proceedings by which, it is claimed, title from both sources was vested in the defendant.
When the plaintiff offered in evidence Patent No. 310 from New Madrid County to Shapleigh R. Phillips, the offer was a certified copy of the patent. This was objected to by the defendant as incompetent on several grounds: because the law required a patent issued by the county to be recorded in the office of the county clerk as a condition precedent to its delivery, and the patent, a copy of which was now offered in evidence, had never been recorded in that office and therefore conveyed no title to the patentee; because the copy was not the best evidence and the original was not accounted for; and because in the absence of the original patent the next best evidence was the record of the patent which is required to be kept in the county clerk's office. These objections were overruled and the copy was admitted in evidence; around this alleged erroneous *Page 606 ruling the principal argument and contest of the case revolves.
The defendant then offered in evidence the record in the county clerk's office of Patent No. 310, showing that the land covered by it was in Section 15, Township 22, Range 15.
The plaintiff offered the list of swamp lands in New Madrid County which was required to be filed in the office of the clerk of the county court, called, "The Swamp Land Abstract of New Madrid County," showing that Section 15, Township 22, Range 15 was not listed as swamp land. Plaintiff further offered evidence to show that the southwest quarter of Section 15, Township 22, Range 15 was entered by Shapleigh R. Phillips in 1836 and was an improved farm, and had always been known as such, and was not, therefore, swamp land; and could not have been patented to Shapleigh R. Phillips in 1859 as such.
Murray Phillips was sworn on behalf of plaintiff and testified that he was the grandson of Shapleigh R. Phillips; said he once saw the original patent No. 310; he found it among his grandfather's papers. He was aware then that "the title was being claimed" and he went to the office of the county clerk and compared the original patent with the record which appeared there of Patent No. 310. He found the record in the county clerk's office showed the land in Range 15, when the original patent showed it was in Range 13, indicating that the 15 was written in the record by mistake; otherwise, the record was an exact copy of the original. This original patent was then delivered by him to Amos R. Phillips and the latter had it recorded in the office of the recorder of deeds. Just when this occurred does not clearly appear from the evidence. The courthouse in New Madrid was burned in 1904-1905, and it was inferred that the patent was burned at that time.
The land in controversy was wild land, had never been in cultivation, had never been in the possession of any person, nor fenced, nor any improvements placed *Page 607 on it. The only acts of ownership shown by either party was that it had been visited and looked at, and both parties and their grantors had executed several mortgages and other conveyances affecting it. Some evidence was offered by both parties as to payment of taxes, and this will be noticed in considering the defenses of the Statute of Limitations.
I. The law which the appellant claims determines the rights of the parties in this case, is the act the General Assembly of Missouri approved February 27, 1859, Laws of Missouri 1856, pp. 271-272, entitled, "An Act in Relation to the DisposalCopy of of Swamp Lands." The first section of the act providesPatent. that when the county courts of certain counties, including New Madrid, shall be satisfied that full payment has been made for swamp lands under the act authorizing the same, they shall cause patents to be issued to the purchasers. Section 2 of the act provides the form of the patent, the manner of its execution, and that such patent shall convey to the grantee therein named all the title the county has acquired under the several acts of the General Assembly and the Act of Congress of 1850. Section 3 of the act is as follows:
"3. Such patent shall be recorded before delivery in the office of the clerk of the courts issuing the same, and such patent, and the record thereof, by such clerk, or by any other officer authorized to record deeds and other instruments of writing, and copies of such records, duly authenticated, shall be received in evidence in all courts, and other places, in the same manner, and with like effect, and may be used as fully for all purposes as patents for lands issued by the United States, or deeds duly proven or acknowledged, or the record of the same are received, or can be used in this State, and shall at all times, and in all courts, and other places, be received as prima-facie evidence of title to the lands and real estate therein named."
Section 4 is as follows: *Page 608
"It shall be the duty of the Governor of this State to cause to be furnished to each of said counties, as soon as practicable, a list of all the swamp lands in the county, which list shall be recorded in the office of the recorder of deeds, and filed in the office of the clerk of the county court, and shall be a public record, and copies of said list, or of the record thereof, shall be prima-facie evidence that the lands therein described are lands granted by Congress to this State as aforesaid, and by said State donated to the several counties by the said several acts, and shall be received in evidence as such, in all courts and other places."
The appellant claims that under Section 3, Patent No. 310 was of no force or validity until recorded in the county clerk's office. That it was not required to be recorded anywhere else, and the only evidence of the existence of a patent and its terms would be either the original patent, or the record of the same, or a copy of such record as it appears in the office of the clerk of the county court; that therefore the copy of Patent No. 310 offered by the plaintiff was incompetent. It does not appear by whom this copy was made and certified. The questions thus presented to the court were whether the loss of the original was accounted for; whether the purported copy was a correct copy; and, whether the record in the county clerk's office was better evidence of the contents of the original patent than any other copy, however proven.
It is conceded that the patent was not required to be recorded in the recorder's office. It was held by this court in case of Mosher v. Bacon, 229 Mo. 338, where land belonging to a county is sold by the county, and paid for, and the purchaser receives a certificate of purchase, thereafter the county is powerless to convey it to another person. The purchaser receiving the certificate of purchase would have an equitable title which would be good against all the world. It was further decided in that case l.c. 349, that a purchaser has no control over the land office, nor over the state officers, whose duty it is to issue a patent and conform to the requirements *Page 609 of the law, and the failure of such officer to do his duty in that respect would not affect a purchaser's right or title.
The objection that the loss of the original patent was not accounted for is not well taken. It was shown that the owner of the patent, Amos R. Phillips, was dead. Murray Phillips testified that both he and Mr. Kline, the plaintiff, searched for the patent and were unable to find it; that he made the search at the request of Mr. Kline, and that the last time he saw it it was in the recorder's office; that he was adviser and attorney of Amos R. Phillips, that the courthouse burned, probably while the patent was lodged in the recorder's office when all such papers were destroyed. Thus it appears that the persons who had a right to the custody of the patent were unable to find it.
Appellant, however, asserts that no other copy could be admissible as long as the record in the county clerk's office was accessible. The record of Patent No. 310 in the county clerk's office was produced in evidence by the appellant himself. The Act of 1857 makes such a record only prima-facie evidence of title. Such a record is not conclusively correct. It was open to plaintiff to show that it was erroneous. Murray Phillips testified that he compared the original patent which he found among the papers of Shapleigh R. Phillips with that record and the record of Patent No. 310 was an exact copy of the original patent, with the exception of the word "fifteen" giving the number of the range, whereas the original patent showed the range number to be thirteen. This patent on its face showed that it was a patent to swamp land under the Swamp Land Act. In corroboration of that testimony of Phillips it was shown that Section 15 of Township 22, Range 15, contained no swamp land, and, therefore, the county could not have issued a patent for the land described in the record of Patent No. 310 in the county clerk's office. It was a question of fact for the trial court to determine whether the patent was erroneously recorded in the county clerk's office. There *Page 610 was sufficient evidence before the court from which it very properly could find, as the general finding for plaintiff shows it did, that the patent delivered to Shapleigh R. Phillips correctly described the land in suit, and that the county clerk in recording it made a mistake as to the number of the range. This being purely an action at law that finding is binding upon this court. Here we have the loss of the original patent accounted for. We have proof that the record in the county clerk's office is erroneous, and therefore not a correct copy of the patent. Then we must be remitted to the next best secondary evidence — the certified copy, supported by the testimony of Mr. Murray Phillips who saw the original patent and knew exactly what it contained by comparison with the record and swears that the copy produced in evidence is a correct copy.
II. Where two patents are issued for the same land, both regular upon their face, the prior one must prevail over the subsequent one. [Simpson v. Kilpatrick, 148 Mo. 507.] The statutes in regard to recording instruments affectingRecording the title to land do not apply to conveyances by thePatent. State. Such conveyances may be recorded, but their effect in vesting title and affording notice is not dependent upon their being recorded. [Wilcox v. Phillips,260 Mo. 664, l.c. 681.] The question, where successive patents are issued by a county for the same land, is not one of notice. As stated by WOODSON, J., in case of Mosher v. Bacon, 229 Mo. l.c. 362: "I am, therefore, clearly of the opinion that it is not a question of notice, either actual or constructive, that is involved in this case, but one of power and authority on the part of the register of swamp lands to sell such lands a second time; and this he cannot do."
A point is made that the "Swamp Land Abstract of New Madrid County" does not show that the land in dispute was patented to anybody. Section 4, however, of the Act of 1857, does not require the "Swamp Land Abstract" filed in the office of the clerk to show to whom *Page 611 the land was patented by the county, only to show the list which the county acquired.
Under Section 3 of the act it was the duty of the county clerk before delivery to have the patent recorded. That was not a prerequisite to its validity. The plaintiff's ancestor received the patent correctly describing the land. He had no duty to perform and there was nothing he could do in seeing that it was correctly recorded, and he was not responsible for the failure of the county officer to perform his duty. It was not necessary for him to make any record of it for the purpose of affording constructive notice. The power of the county to deal with the land was exhausted by the act of issuing that patent.
It necessarily follows that the subsequent commissioner's deed and patent issued by the county under which the defendant claims were of no validity and pass no title.
III. Obviously the appellant cannot avail himself of the ten-year Statute of Limitations, because it stands admitted that there was no actual possession of the land in controversy by either party at any time and no possessory actsLimitations. which would start the operation of the statute. Appellant, however, claims that, under Section 2535, Revised Statutes 1909, enacted in 1897, the cause of action accrued to plaintiff or his successors in title more than ten years prior to the bringing of this suit, and therefore he is barred. He cites the case of Powell v. Bowen, 279 Mo. 280, decided at the April term, 1919, by Court in Banc. In that case, however, there was actual adverse possession for ten years which, of course, vested title in the possessor. The land in this case was wild land, and neither party was in possession. It has been held by both divisions of this court that the failure to sue within ten years after the right to sue has accrued does not bar an action under Section 2535. [Armor v. Frey, 253 Mo. 447, l.c. 476; Powell v. Powell, 267 Mo. 117, l.c. 129.] *Page 612
IV. Defendant further claims that plaintiff's action was barred by the operation of what he terms the one-year Statute of Limitations. He pleaded that the plaintiff previously had brought an action concerning this same land; that saidNonsuit: action, before determination, was voluntarilySuit Within dismissed by the plaintiff and the present actionYear. was not commenced within one year thereafter, and therefore the plaintiff could not be heard to maintain this suit. Appellant doubtless refers to Section 1900, Revised Statutes 1909. That section, however, has been construed by this court to be simply a saving clause to prevent the bar which otherwise would be applicable: "It doesn't purport to limit the time of bringing suits, but to save from the statute, for one year after nonsuit, actions which, but for its provisions, would be barred." [Meriwether v. Overly, 228 Mo. 218, l.c. 231; Karnes v. Ins. Co., 144 Mo. 413.]
V. Appellant further claims that action is barred by the thirty-year Statute of Limitations, Section 1884, Revised Statutes 1909. In order to maintain this defense it would be necessary to prove that the plaintiff had been outThirty-year of possession for thirty years and that theStatute. defendant had been "in lawful possession" for at least one year thereafter and that the plaintiff had not paid taxes for thirty years. There was no lawful possession by the defendant within the intent of that term by the statute. [Brannock v. McHenry, 252 Mo. l.c. 9; Weir v. Lumber Co.,186 Mo. 388; Bevier v. Graves, 213 S.W. 74.]
VI. Appellant further asserts that plaintiff has no right of recovery because of laches and estoppel. The defendant does not ask any equitable relief in his answer, so that theLaches. action remains purely an action at law, and in such case laches is not a defense. The doctrine of laches is applied only to defeat a claim for some equitable relief. [Chilton v. Nickey, 261 Mo. 232, l.c. 243; Kellogg v. Moore,271 Mo. 189, l.c. 193; *Page 613 Newbrough v. Moore, 202 S.W. 547, l.c. 551; Bell v. George, 204 S.W. 516, l.c. 519.]
As for the claim of estoppel, it is not shown that the plaintiff did anything which misled the defendants, or that the defendants relied upon anything done by plaintiff and thereby altered his position to his hurt. It is shown that theEstoppel. defendant executed and filed several mortgages covering the land, including other large tracts. The plaintiff and his predecessors in title executed also four mortgages covering this land. The land is included in Drainage District No. 18, and perhaps in two other drainage districts. It was shown that Charles Luce obtained a contract from New Madrid County to dig drainage ditches, presumably in Drainage District No. 18, which would affect this land; that Luce received a commissioner's deed from the county in 1881 and is one of the sources through which the appellant claims; further that Charles H. Luce was in some way connected with the Himmelberger-Luce Land Lumber Company, through which defendant also claims, and a patent was made to John Himmelberger in 1899. This apparently to show that the parties through whom the defendant claims had been instrumental in procuring the organization of the drainage district and carrying out the work thereon. It was not shown that the defendant or his grantors at any time expended any money in the improvement of the land in question. If they spent any money constructing drains it was under contract with the county. The Himmelberger-Luce Land Lumber Company, it was claimed by appellant, mortgaged the land for a large amount of money with which to carry out the contract with the county in the digging of the ditches. But that was a contract which anyone could have made and the work was not done by that company because of claim of ownership of this land, but because the county paid it, as it would any other contractor.
There is no error shown in the record. The judgment is affirmed. *Page 614 Railey and Mozley, CC., concur.