This is a suit in equity to annul certain conveyances of swamp lands in Butler county, as clouds upon com
As already stated, complainant claims a title of record from Butler county, by and through its subscriptions to the capital stock of the Cairo & Fulton Bailroad Company, its conveyance of the lands in question to the last-named railroad company in payment of such subscriptions, the mortgage by the last-named railroad company to secure its bonds, the foreclosure of the mortgage, and purchase thereunder by his grantor. Mr. Chouteau.
The foundation of complainant’s title is assailed at the outset by the defendants. It is conceded in the argument of this case that the subscriptions to the capital stock of the Cairo & Fulton Bailroad Company were made by the county court of Butler county without the assent of the taxpayers of the county, secured at an election held for that purpose. It is contended that under the provisions of section 29 of the act of February 24, 1853, such a vote was a condition precedent to the right to make the subscriptions in question. On the other hand, the complainant contends that such is not the true construction of said section 29, and claims further that by the provisions of the act of December 10, Í855, entitled “An act to secure the completion of certain railroads in the state,” the county court of Butler county had the right to subscribe its overflowed or swamp lands as stock to any railroad passing through the county, upon such terms, and to he valued at such priees, as may be agreed upon by the county court and the directors of the railroad company in which stock was taken, and that this act was in force at the time the patents were made to the railroad company, and was ample authority for the conveyance, without the consent of the taxpayers.
The able arguments of counsel, the several decisions of the supreme court of Missouri, and divers acts of the general assembly bearing upon the necessity for a preliminary election, would command critical consideration, if the question involved were an open one to this court; but, in my opinion, the decree of July 2, 1869, in the case of Butler county et al. against the Cairo & Fulton Bailroad Company et al., concludes the complainant ou this question. That suit was instituted by Butler counly against the railroad company and the trustees of the bondholders for the purpose of annulling the county’s subscriptions to the capital stock of the railroad company, and for the purpose of setting aside the patent of April 20, 1857, from the governor of Missouri to the railroad company, and the mortgage, of "date May 23, 1857, from the railroad company to the trustees for the bondholders, — Moore, Wilson, and Waterman. The ground of complaint was that the title to the lands involved was procured from the county fraudulently and without warrant of law, and that, among other things, there was no consent of the taxpayers thereto. The suit, after pending three years or more, came on for a hearing upon the merits; and a final decree was rendered as prayed for by the county, setting aside and annulling the title of the railroad company and the trustees for /the
I am unable to agree with' counsel for complainant that said decree was void for want of necessary parties. The suit was instituted in June, 1866. John Moore, John Wilson, and Albert G. Waterman, the trustees named in the mortgage of 1857, which was duly recorded in the recorder’s office of Butler county, were named as defendants in the case; and being nonresidents at the time of the execution of the mortgage to them on May 23, 1857, and supposed to be so in 18G6, an order of publication was secured and duly executed against them as such nonresidents, requiring them to appear at the September term of said court and answer the petition of the plaintiff. But it now appears that Waterman died in February, 1862, and that Moore died on September 23,1866, before the order of publication was returnable. Wilson alone survived. Notwithstanding the death of Waterman and Moore, counsel entered appearance and filed pleadings for all the défendants. The case took the usual course, and was tried, and the decree was entered in July, 1869, with no knowledge on the part of Butler county of the death of the two trustees, or of any irregularity in the proceedings. By the provisions of the mortgage of 1857, the land-therein described was conveyed to John Moore, John Wilson, and Albert G-. Waterman, and “to the survivor and survivors, successor and successors, of them, forever, as joint tenants, and not tenants in common, for the uses and purposes set forth.” The mortgage also provided:
“That, for the purpose of continuing and securing the due execution of the trusts hereby created, it is declared that all vacancies that may occur in the office of trustee, by death, resignation, or otherwise, shall be filled thus: The first vacancy shall be filled by a majority of the members of the board of trustees as constituted, being in office at the time such vacancy shall take place; the next vacancy shall be filled by the said party of the first part [which is the Cairo & Fulton Kailroad Company]; and so on alternately, until the end. And trustees so appointed shall fill the terms and succeed to and perform all the duties, and have all the powers, hereby conferred upon the members of the board of trustees herein named or provided for.”
It appears that an attempt was made, pursuant to tbe provisions of the mortgage, to appoint a successor to Waterman, who died in 1862. t)ne Mason Brayman had, before then, pursuant to the provisions of the original mortgage, been chosen by the three original trustees as president of the board of directors. On March 22, 1866, he and’John Wilson signed a paper at Springfield, 111., the home of the trustees, and where they seemed to have had an office, purporting, by its terms, ¿o appoint the said Brayman a trustee to fill the vacancy caused by the death of Albert G. Waterman. It also appears that after the death of John Moore, to wit, on April 11, 1867, the board of directors of the Cairo & Fulton Bailroad Company, purporting to act under the power conferred by the original mortgage, passed a resolution appointing Henry H. Bedford as trustee to fill the vacancy occasioned by the death of John Moore; and a writing embodying this resolution and this appointment was signed by Green L. Poplin, president, and T. W. Johnson, secretary, of the railroad company. These appointments, it ap
It is next contended that the Cairo & Fulton Railroad Company had •been dissolved by the sale made on October 1, 1866, to enforce the state’s lien for money loaned to it, pursuant to the provisions of the act of February 19, 1866, commonly known as the “Sell-Out Act,” and that, such being the case, the last board of directors became thereafter trustees for the railroad company, and that they, instead of the president of the railroad, Mr. Poplin, should have been served with process 'in the case of Butler county against the railroad. It seems to me ■that a complete answer to this contention is found in the provisions ■of the last-mentioned act, as follows:
'“Nothing in this act shall be construed as to convey or authorize to be conveyed, to the purchasers of said railroad, any of the lands subscribed by the ;counties to the stock of said railroad company.”
■■ In other words, the act in question did not authorize the sale, and no sale was made, of a large quantity of lands belonging to the railroad company. Butler county alone had, as then supposed, conveyed over 100.000 acres of swamp lands to this railroad company; and other counties had in like manner conveyed to it, as I understand, over 300.000 acres more of such lands. Although the railroad company ‘had mortgaged its lands, the equity of redemption still remained in 'it. Considering the fact that the railroad itself was never completed, it' seems to me that there was probably less in fact conveyed to the state under the sell-out act than was allowed to remain unsold under ■its provisions. Be this, however, as it may, the mere insolvency of ■the corporation, or the sale of the larger portion of its assets, does not necessarily work a dissolution. Hill v. Fogg, 41 Mo. 563; Bank v. Robidoux, 57 Mo. 446; Hotel Co. v. Sauer, 65 Mo. 279; F. G. Oxley Stave Co. v. Butler Co., 121 Mo. 614, 26 S. W. 367. The cases relied upon by counsel for the complainant, namely, Opinion of the Judges, 37 Mo. 129, Moore v. Whitcomb, 48 Mo. 543, and Chouteau v. Allen, 70 Mo. 290, in which some expressions are found substantiating their views, deal with cases in which there had been a sale of all the property of the corporation, or in which a dissolution was admitted by the pleadings. These last-mentioned cases are considered by the ■supreme court of Missouri in the F. G. Oxley Stave Co. Case, supra, and their authority is gravely doubted; and, notwithstanding them, the court holds that service upon the president of the railroad company, instead of upon the members of the last board of directors, was, at the worst, an irregularity which might have been corrected if seasonably -suggested, and affords no ground for vacating the judgment rendered, at the suit of Mr. Chouteau or his grantees. To the same effect is the case of Hotel Co. v. Sauer, supra. Taking all these cases together, and giving them due consideration, I cannot hold that the
The supreme court of Missouri has carefully considered all these questions in the case of F. G. Oxley Stave Co. v. Butler Co., supra. That suit was instituted by the plaintiff, who claimed title, as the complainant in this case does, by conveyances from Chouteau, and was instituted for the express purpose of setting aside the decree of 1869; All of the grounds of objection to that decree which are now made before this court were fully presented to the supreme court in that ca’se. The last-named court took substantially the same views as I have taken, and in addition thereto announced a salutary, and, in my opinion, correct, doc (line, applicable to this case, and which effectually disposes of all the questions already considered, namely, that the delay of nearly 30 years by persons claiming these lands adverse to Butler county constitutes such laches as deprives them of any standing in a court of equity to aid their own title by destroying the county’s muniment of title afforded by the decree of 1869. "This principle is also distinctly announced in the case of Boone Co. v. Burlington &
“The supreme court of Missouri properly said that only “two questions were presented by the record for its determination: First Were the subscriptions by the county courts [eounty and district] of Butler county to the stock of the Cairo & Fulton Railroad Company, and the conveyance of the swamp lands of that county to said railroad in satisfaction of said subscriptions, authorized by law? Second. Ought the decree of the circuit court of Butler county annulling the conveyances of said lands to be set aside for the reasons urged by the plaintiffs, to wit — First, because procured by fraud; and, second, because two of the defendants named in it were dead at the time of its rendition, and the railroad company a dissolved corporation?”
After stating the foregoing propositions as. having been presented, "the supreme court of the United States says:
“Whether the subscriptions by the county court of Butler eounty to the stock of the railroad company, and the conveyances to that company, were ' valid, and whether the decree which the plaintiffs sought to have declared void was obtained by fraud, were questions of local law or practice, in respect of which the judgment of the state court was final.”
This expression of opinión of the supreme-court would have concluded any and all consideration of the questions already discussed, had not counsel for complainant, invoked the fourteenth amendment to the constitution of the United States, and claimed that he, or his grantees in title, had been deprived of their property without due process of law. This contention, which, for the reasons stated by Mr. Justice Harlan in pronouncing the opinion of the supreme court, could not be considered by the supreme court, necessitated my ruling upon the questions already considered, namely, whether Brayman and Bedford, and the directors of the Cairo & Pulton Railroad Company in office immediately prior to the sale of that road under the sell-out act, were necessary parties to the suit of Butler county against the Cairo & Pulton Railroad Company. In view of what has already been said in discussing these questions, it is my opinion that they were not necessary parties, but that all necessary parties were before the court in that case, and therefore that the complainants, who claim under the parties defendant in that case, were not, by the decree in that case, deprived of their property without due process of law.
The foregoing considerations result in the conclusion that complainant has no legal title to the lands in question by virtue of the sale under the decree of foreclosure rendered in 1879 in the suit of Chouteau against the Cairo & Pulton Railroad Company et al. But counsel contend that Butler county, and its grantees under its patents to the St. Louis, Iron Mountain & Southern Railway Company (hereafter called the “Railway Company”) of 1874, and others, are estopped from asserting aught against complainant’s title; and this by reason of the fact that the county assessed taxes against Chouteau upon the lands in question, and collected the same from him and his grantees, for several years after the date of his purchase, in 1882, and that the Railway Company knew of such assessment and payments, and allowed the same to be done. It is the settled law of this state that the assessment against, and collection of taxes from, a person, by a county of
Complainant next claims that he has acquired title to the lands in controversy by adverse possession by himself. and his grantor. In considering this question, it is well to start out with the undisputed fact that the lands are what is known as “swamp or overflowed lands.” Neither Mr. Chouteau nor his grantee, the complainant in this case, have ever had the actual possession, in the sense in which these terms are employed in speaking of cultivated lands, but it is claimed that they have had all the possession which wild lands are susceptible of. This is claimed to consist in certain surveys, blazing trees, running • off of squatters, prosecuting trespassers, and generally keeping an eye on the lands. The evidence in relation to all these acts is extremely general, and, indeed, the cross-examination of the witnesses prod need to prove them shows that the “interest lands,” as they are called, which are not involved in this case, were the subject of many of the alleged proprietary acts of Mr. Chouteau. All these acts, whether applicable to the lands in question or to the “interest lands,” appear by the proof to be unsubstantial in character, and entirely insufficient to establish that open, notorious, adverse possession, under a claim of right, which alone is held sufficient to destroy the title of the real owner. They signally fail to comply with the requirements laid down by the supreme court of Missouri for such purpose. In Musick v. Barney, 49 Mo. 458, it is said:
“It would endanger property riglits to permit a loose claim to land, with such acts of ownership only as might he exercised without attracting the attention of the real owner, and without occupancy, to ripen into title. The indications of the claim of possession should he so patent that the real owner could not be deceived.”
The following authorities are, in my opinion, conclusive against the claim of the complainant in this case: Leeper v. Baker, 68 Mo. 400; Pharis v. Jones, 122 Mo. 125, 26 S. W. 1032; Nye v. Alfter, 127 Mo. 529, 30 S. W. 186; Carter v. Hornback, 139 Mo. 238, 40 S. W. 893. In addition to this, the proof shows that the Railway Company was fluring all these years exercising acts of ownership, in offering to sell, and selling, parts and parcels of the lands in question, and that these lands were quite generally known throughout the community as “railroad lands,” — probably better known as “railroad lands” than as “Chouteau lands.”