Linville v. Bohanan

60 Mo. 554 | Mo. | 1875

Wagner, Judge,

delivered the opinion of the court.

This was a proceeding in the nature of a bill in eqnity brought by the plaintiffs as heirs of Aaron Linville, deceased, asking permission to redeem certain land upon the payment of the purchase money and interest thereon.

' The record discloses the following facts: In 1856, Aaron Linville purchased of the sheriff of Nodaway County, certain swamp land belonging to that county. None of the purchase money was paid. In 1859, the commissioner appointed by the County Court to convey swamp lands, made him a deed, and at the same time, Linville executed to the county a mortgage in the form and with the conditions of a statutory school fund mortgage, conveying the land as security for the payment of the purchase money. Linville died in 1861, and prior to his death he had made two small payments of interest only. The principal debt and the accumulated interest remaining unpaid, in 1863, the County Court ordered the sheriff to sell the land under the mortgage. The land was regularly sold, and at the sale the county became the purchaser at a price considerably less than the amount due. Afterwards the county sold the land to one Coover, under whom defendants claim by a chain of mesne conveyances.

The sole question therefore is, whether the county had the right to make* the purchase, or whether it was ultra vires, and should be treated as a nullity. In the case of Ray County vs. Bently, (49 Mo., 236, followed in Holt County vs. Harmon, Feb’y T.,) it was held that where land was mortgaged to a county to secure a loan of school funds, the county on a foreclosure sale had no power to bid in the land in satisfaction of the debt. In that case the county never had any title. The school lands were vested in the State, in trust for the benefit of the inhabitants of the township in which they were respectively situated. The County Courts in such cases are vested with the management of the fund as trustees, but they act in an administrative capacity, in obedience to the laws of the State, and not by virtue of any power derived from the county. The statute points out the manner in which the funds shall be secured and collected, but no power to purchase by the county is conferred.

But the present case stands in a different situation, and ought to be governed by a different rule. The controversy springs out of a sale of swamp lands of which the county was the owner. After the act of Sept. 28, 1850,- granting the swamp lands to this State, the legislature, by various acts donated the lands to the different counties in which the- lands were situated, and invested in them the fee. Bv an act approved February 28, 1855, it was enacted that “the several County Courts of this State are hereby authorized to sell and dispose of the swamp and overflowed lands within their respective counties either with or without draining and reclaiming the same, as in their discretion they may think most conducive to the interest of said counties.” (Sess. Acts, 1855, p. 160, 2 R. S. 1855, p. 1006, § 3.) The proceeds arising from the sale of the swamp lands were appropriated to the school fund.

By the legislative enactments above referred to the absolute title to.the lands was vested in the counties, to be disposed of in the discretion of the County Courts. The counties were then the proprietors with the right of discretionary disposal, but by a law of the State they were required to apply the proceeds to a particular purpose. In selling the land they possessed the same powers that owners generally possess under like circumstances, one of the most important of which is the right to buy in the premises to' secure the debt. As the connty in the first instance owned the land, under the provisions of law, when it purchased it in, it stood in the same attitude that it previouslj’ occupied before the sale. It owned the land as does an individual — to again be disposed of.. Any one who owns the absolute fee, with the power to sell, must necessarily have the right to buy to secure the purchase money. The sheriff, in making the sale, acted as a trustee. The county was the beneficiary, and as such, had the right to buy, audits title cannot be questioned. The judgment was for the defendants and it should be affirmed.

All the judges concur, except Judge Sherwood, who is absent.