Bowlin v. Furman

28 Mo. 427 | Mo. | 1859

Scott, Judge,

delivered the opinion of the court.

This is an action of ejectment, and the pleadings present nothing but the dry point, whether there was authority in the city of Carondelet to make the conveyance of the land in dispute through which the plaintiff claims. The record does not raise the question whether those, under whom the defendant holds, had title, under the act of 13th June, 1812, by virtue of inhabitation, cultivation or possession prior to the 20th December, 1808.

The first clause of the second section of the eighth article of the act incorporating the city of Carondelet enacts, that the property in all lands granted, for the benefit of schools, to the inhabitants of the town or village of Carondelet by any act of the Congress of the United States, is hereby vested in the corporation created by this act. The following clauses do not seem to be designed to restrict the grant, but are only directions for the management of the property conferred by the act on the city. (Sess. Acts, 1851, p. 148.) An objection of the defendant is, that the conveyance made by the city was not a sale, but an exchange which it had no authority to make. By its charter, the city had authority to take all measures necessary to obtain possession of the school lands, whether by action at law or compromise with adverse parties. The school land exchanged was not in possession of the city ; it was in dispute, as this suit shows. The party with whom the exchange was made claimed a tract situated in the commons of Carondelet. The city, then, compromised a claim to a portion of her commons by conveying a lot of the school lands in satisfaction of it. The charter provided that one-tenth part of the proceeds of any sales of the common should be paid over to the school fund of said city and be applied to the use of schools therein. It may be said that the portion of the commons claimed had been leased and disposed of before the city was incorporated, so that there could be no sales in which the schools could have an interest. To this it may be answered that there was a power of granting in fee the lands leased, and the tenth part of the profits arising from this source may have been worth as much or more than the claim of the schools to the lot in controversy. This transaction, then, might be referred to the power to compromise as the source of the authority which gave a warrant to its existence. The act of Congress of Jan’y 27,1831, vested the legal title to the school lots reserved by the act of the 13th June, 1812, in the state, to be sold or disposed of or regulated for school purposes in such manner as might be directed by the legislature. The state granted the full property in these lands to the city of Oarondelet for the benefit of schools, with directions to compromise disputed titles and to make sales, applying the proceeds to the purposes of the grant. The power of establishing, regulating and supporting common schools was vested in the council,by the charter; so that the corporation was as well one for school purposes as for municipal regulation. Powers so extensive would sanction the exchange made between the city and the vendors of the plaintiff. Under the circumstances there was no duty [imposed] on the purchaser to see to the application of the purchase money or to inquire whether the trustee was guilty of a breach of trust. Had the city exchanged a portion of the school lands not suitable as a site for a school-house for a lot adapted to that purpose, the title would certainly have passed. We are not inquiring whether Oarondelet has been guilty of a breach of trust for which she may be liable; for such an hypothesis is not at all inconsistent with the idea that the power to pass the title existed. The legal title to the lot was beyond all controversy in the city; she was a trustee; and it can not be questioned that the deed of a trustee conveys a legal title. The trustee having a legal, though defeasible, title, that title becomes absolute in his vendee in a court of law. In a court of law, the vendee need not show that the conditions of the trust deed have been complied with. (Gale v. Mensing, 20 Mo. 461; Taylor v. King, 6 Munf. 366.) Although there is now no distinction between courts of law and equity, yet if a party under the present system will file a petition which formerly only entitled him to a legal remedy, he can not now under such a petition have any other than the remedy he formerly had. If he would have equitable relief, he must set out in his pleading the facts which give him title to it. The pleadings in the present action are only designed to try the mere legal title, and therefore that is the only matter we are called upon to decide, and we accordingly speak of it as an action at law.

Another argument of the defendant is, that the deed is void for fraud patent upon the face of it, because it shows that a trustee is attempting to convert a trust estate to his own use and declares his intention upon the face of the deed ; and he further maintains that the grantees in the deed are bound to see to the application of the purchase money and to hold themselves liable to account to the beneficiaries. This argument proceeds certainly on the ground that the title passed from the city to her alienees. No fraud by way of breach of trust and confidence can have been committed by the city unless she has passed away the title granted to her by the general assembly. If no title has passed, the beneficiaries of the trust are not injured. But if there is a breach of trust and a fraud has been committed, then the title must have passed; and if a title has passed, it is obvious that the plaintiff must recover in this action, as the right to thg strict legal title is the only matter in issue by the pleadings. If the city has been guilty of a breach of confidence in conveying away a trust estate; if the plaintiff has been guilty of a fraud in accepting a title under it, that is a matter not to be determined in this suit, nor in a suit to which the defendant is a party. If Carondelet has betrayed and defrauded those who confided in her, that is no concern of the defendant. Let those complain who are injured. A deed may be fraudulent and void, but it is not for strangers to complain of it. A deed that is fraudulent can only be avoided by those who are injuriously affected by it. If a breach of trust has been committed in aliening this land, the defendant is no more affected by it than any other member of the community.

It was insisted by the defendant that the deed under which the plaintiff claims was executed before the school lands therein described and attempted to be conveyed were assigned and set apart for the use of schools, consequently there was no title in Carondelet at the date of the deed, and therefore none could pass by the deed of the vendors of the plaintiff. In the case of Kissell v. The Public Schools, 18 How. 215, the supreme court of the United States expressed the opinion that the school lands were in the condition of Spanish claims after confirmation, without having established and conclusive boundaries made by public authority, and which claims depended for their specific identity on surveys to be executed by the government. If the school lands were in the condition of confirmed Spanish grants before a survey, surely no question can arise as to the right to dispose of them, and that a disposition of them in that state would carry any title the government would afterwards- pass. The deed would convey the land, and the subsequent designation, like the survey of a confirmed grant, would point out the land designated. The doctrine of the enurement of a title acquired after the making of a conveyance is not applicable to the circumstances of this case.

Eeversed and remanded;

the other judges concur.