98 Mo. 675 | Mo. | 1889
— The plaintiff’s action is in ejectment for three detached tracts of land in sections 5, 8 and 17, in township 28, range 10, in Bollinger county. The
The lands in controversy are part of the swamp lands granted to the state of Missouri by an act of congress approved September 28, 1850. The plaintiff claims title through mesne conveyances under a deed from Bollinger county, dated May 23, 1871, and under a patent from the state of Missouri to said county, dated August 4, 1869, executed by the governor and duly recorded in pursuance of an act of the general assembly, approved March 10,1869. Acts, p. 66. Section 5 of that act makes this patent prima facie evidence of title in Bollinger county to the premises, if, at that date, they were situate in that county, which presents the first question on the record.
I. By an act of the general assembly, approved March 1, 1851 (Acts, p. 193), Bollinger county was organized out of territory theretofore forming a part of the counties of Wayne, Stoddard and Cape Girardeau. By the boundaries then established, made more definite by 1 Revised Statutes, 1855, page 471, the lands in controversy remained in Stoddard. By an act approved January 15, 1857 (Acts, p. 237), the boundary line between Bollinger and Stoddard counties was changed, and that part of the land in sections 5 and 8, west of Cane creek slough, was put in Bollinger county. By an act approved March 14, 1859 (Acts 1858-9, p. 304), the boundary line between these two counties was again changed, and all of said land put within the territorial limits of Bollinger county, and all the land so remained in Bollinger county until the revision of 1865. By chapter 34, title 11, of that revision (G. S. 1865, p. 185), defining the boundaries of all of the counties in the state, in alphabetical order, Bollinger ( section 50) comes first, and its boundaries are defined as by the act of 1869, leaving this land in Bollinger
As between the state and the counties, there can be no question that the legislature had the power to make these changes in the boundary line between these counties. 55 Mo. 295; 49 Mo. 468 ; 47 Mo. 189. And the title to these lands having, by act of November 14, , 1857 ( Acts Adj. Sess. 1857, p. 32), been vested in the counties “in which they may lie” by legislative grant, and being in Bollinger at the time the patent from the state issued, the title of the state passed to Bollinger county, and the patent was primia facie evidence of that fact, subject, however, to any vested right that may have been acquired by any person or corporation from the state or Stoddard county, while the lands constituted a part of the territory of said county.
As bearing upon another branch of the case, it may be as well here to announce the conclusion that these lands have been within the territorial limits of Bollinger county ever since March 14, 1859, where they were so placed by the act of that date, which is the last original expression of legislative will on the subject. The ■carrying forward into the general statutes of the existing laws on that subject was simply a continuation of the law of 1855, as to the boundary of Stoddard and the law of 1859, as to the boundary of Bollinger, and the last act, being repugnant to and inconsistent with the
II. By section six of the act of March 10, 1869 (Acts, p. 67), under which this land was patented to the county by the state, it is provided that: ‘ ‘ The several county courts shall have full power and control over all * * * swamp lands patented to their respective counties under the provisions of this act, and to sell and •dispose of the same with like effect as now provided by the general statutes iu relation to the conveyance of other real estate belonging to their respective counties.” ' The deed from Bollinger county, under which the plaintiff claims, was made in execution of this power and the power granted by section 9, General Statutes, 1865, page 556, by a commissioner appointed by the county court of said county under the provisions of section 4, page 444, General Statutes, 1865, in pursuance of a sale made by order of the county court of said county to Judson Gardner, and was effective to pass the title of the county to said .grantee, if the law of 1869 applied to the swamp lands situate in the county of Bollinger. Prior v. Scott, 87 Mo. 303.
It is contended for the defendant that it did not, for the reason that at that time, there was an unrepealed special law regulating the sale of swamp land in said county, the terms of which it is conceded were not complied with. The grant of these lands by the general government, to the state was in trust. The trust however has been held to be a personal one, not running with the land. Dunklin County v. District Court, 23 Mo.
III. Several objections are urged to the validity of the deed from the county under this general law, none of which, however, do we think are sufficient to invalidate
IY. To overcome this title, the defendants rely upon a deed dated August 1, 1867, from Stoddard county, by commissioner, to the Cape Girardeau & Bloomfield Macadamized and Gravel Road Company, a deed from said company to the Cape Girardeau Railroad Company, dated August 23, 1881, and a deed from said railroad company to the defendants, dated October :24, 1881. But, as we have seen, on the first of August, 1867, these lands were within the territorial limits of Bollinger county, and Stoddard county had no title to, or power to convey them, all legislative grants of these lands being to the counties within which they lie, and subject to the right of the state, at pleasure, to change, the boundaries of' the counties. And unless the deed from Stoddard county was made in pursuance of a contract made with the gravel road company prior to March 14, 1859, while these lands were in said county, under which the said company acquired a vested right to them, the deed from that county conveyed no title to the gravel road company. The evidence entirely failed to
The judgment is for the right party and is affirmed.