173 Mo. 421 | Mo. | 1903
Lead Opinion
These eases originated in Stoddard county, Missouri. The questions involved in both cases, being practically the same, they were consolidated by agreement of the parties, with the consent of the court, and tried as one case.
The suits in these cases were instituted to quiet title to certain lands set out in the petition, located in Stoddard county, Missouri. The lands involved in this controversy are what are known as swamp or overflowed lands. The petitions in the two cases, as well as the answers, present practically the same questions, and there being no point presented for review upon the pleadings, we will not burden this opinion by inserting them. There is no dispute as. to the facts, other than upon the character of the claim of Ringer against Stoddard county. As to that, there is a conflict of testimony as to whether his cause of action was an ordinary claim against the county or upon warrants upon .the swamp land fund. We regard this dispute as to the nature of the cause of action in the suit of Ringer against the county, as being immaterial as to the vital questions involved. At least, we have concluded that a conclusion reached upon one side or the other, upon this disputed question, would shed but little light upon the main points of difference in this cause.
On March 13, 1868, Lewis M. Ringer obtained a judgment against Stoddard county for $1,136.90, and in August following caused án execution to be issued and levied upon 107,000 acres of land, the same being swamp^ and overflowed lands conveyed by the State of Missouri to Stoddard county for the purpose of reclamation and drainage, as set out in the act of conveyance; had the land sold under the execution, and at said sale, the plaintiff’s grantors purchased the land in controversy in this
“Whereas at the March term, A. D., 1868, of the circuit court of Stoddard county, in the State of Missouri, Louis M. Ringer obtained judgment against Stoddard county upon warrants on the swamp land fund of said county, upon which said judgment an execution issued according to law, by virtue of which said execution the sheriff of Stoddard county did seize and levy upon all the swamp land owned and possessed by said county, of which said lands so levied upon one hundred and seven thousand or near that amount of acres of said lands were sold by said sheriff in due accordance of law at the September term of the circuit court of Stoddard county, A. D. 1868, to Louis M. Ringer and others; and whereas, the county court of Stoddard county, did at its February term, A. D. 1869, by an order of record, appoint William G-. Phelan and David Gr. Hicks, attorneys for and on behalf of said county to institute suit for the recovery of the lands sold as aforesaid, granting to them the interest of the county to fifty thousand acres of the lands so sold, as their fee. Now, therefore, in consideration of the facts that said suit would be attended with much uncertainty in the recovery of said lands and require years of litigation to terminate the same, it is therefore considered by the court that a compromise of the same would be for the benefit of the said county of Stoddard if made with the parties who bought said lands at said sale, whose names are as follows, to-wit: Louis M. Ringer, D. Starks Crumb, Erastus W. Hill,, Thomas W. Johnson, Samuel J. Bartlett, I. Frank Starrs, Robert W. Carter, M. E. Leach, William P. Knox, Clarissa M- O’Dell, H. H. Bedford, James Frazier, William W. Norman, J. Moore, J. E. Liles and' Jesse B. Leggett; and whereas, said purchasers agree*440 and covenant to pay to the said county the sum of thirteen thousand five hundred dollars in Stoddard county warrants, which sum is to he paid into the county treasury on the following terms and in the following manner, to-wit: said parties either paying as aforesaid- or executing their promissory notes, bearing six per cent interest, one-half of said sum shall be paid as aforesaid on or before the first day of January, A. D., 1870, and the remaining half on the first day of January, A. D., 1871. Each of said parties giving notes for their portion of said sum shall secure the same by mortgage on real estate to the satisfaction of the county court of the said county. Therefore, it is considered, adjudged, ordered and decreed, that in consideration of the premises aforesaid, the county court shall and will cause letters patent to be issued to the purchasers of said lands, and to their assigns, conveying in fee simple, all the right, title, interest and claim of said county, of, in and to the lands sold by virtue of said execution, to the parties who purchased the same or to their assigns. And it is further ordered that for the purpose of carrying out this order in good faith towards the purchasers aforesaid, and their assigns, the county court of this county does hereby make, constitute and appoint Alfred Eltzroth a special commissioner for and on behalf of said county of Stoddard, to make, execute and deliver to-said purchasers or their assigns, letters patent for the lands aforesaid. Said commissioner to receive the usual fee for such services, to be paid by the parties to whom the patents shall be made, which said patents shall be delivered to the parties aforesaid, upon the ■execution, acceptance and delivery of the mortgages .aforesaid, on the production of the County Treasurer’s receipt for the pro rata of the aforesaid thirteen thousand five hundred dollars due upon the amount of lands for which the patents are to be issued.,”
In pursuance of the order of compromise and the appointment of Alfred Eltzroth special commissioner
“State of Missouri, County of Stoddard:
“To all to whom these presents shall come — Greeting : Whereas, D. Starks Crumb of the county of Stoddard, State of Missouri, made full payment to the said county of Stoddard for the following described lands: [The lands described in plaintiff’s petition, containing in the aggregate 4,194.67 acres], according to the official plat of the survey of the said land returned to the general land office by the surveyor general, which said bracts have been purchased by the said D. Starks Crumb. Now know ye that the said county of Stoddard, in consideration of the premises, and in conformity with the laws of said State of Missouri, in such cases made and provided, have given, granted, bargained, sold and conveyed, and by these presents do give, grant, bargain, sell and convey unto the said D. Starks Crumb and to his heirs and assigns forever, the above' described lands .granted by the Government of the United States to the State of Missouri, and by said State of Missouri to the said county of Stoddard, to have and to hold the above described lands, with all the rights, privileges, immunities and appurtenances thereto belonging to the said D. Starks Crumb and to his heirs and assigns forever. In testimony whereof, I, Alfred Eltzroth, special, commissioner, duly appointed by the county court of said Stoddard county to sell and dispose of the above-described lands belonging to the said county of Stoddard for and in behalf of said county, have caused these letters to be made patent. Given under my hand and seal as commissioner aforesaid at Bloomfield in said county this 1st day of May, 1869.
“Alfred Eltzroth, Special Commissioner.”
Properly acknowledged on May 1, 1869; recorded ■on May 15, 1869.
The record in this case discloses this admission; it appears in the record, as well as in the brief: “We admit that for more than thirty years, the respondents have been the apparent owners of said land and have been paying the taxes levied and assessed'thereon by the agents of the county. ” "
The lands, the title to which plaintiffs seek to quiet by this suit in equity, are a portion of the lands originally granted to the State of Missouri by act of Congress of September 28, 1850. That act is entitled “An Act to enable the State of Arkansas and other States to reclaim the ‘ swamp lands’ within their limits. ’ ’ The first section provides that ‘ ‘ to enable the State of Arkansas to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be, and the same are, hereby granted to said State.” By the fourth section of said act its provisions are extended to and the benefits thereof are conferred upon each of the other .States in which such swamp and overflowed lands were situated, thus granting to Missouri all of the swamp lands within her borders which had not previous to the enactment of that law been sold by the United States Government. The second section, after directing a listing of said lands by the Secretary of the Interior, and the issuing of a patent therefor to the State, further provided that “on that patent, the fee simple to said lands should vest in the State subject to the disposal of its Legislature, provided, however, that the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid.” [U. S. Stats, at Lar. 1851, c. 84, pp. 519, 520.]
This act of Congress was a legislative grant and required no formal conveyance to transfer the title to all
After the title to these lands had thus been vested in the State of Missouri, the State through its General Assembly by an act approved February 23, 1853 (Laws 1852-1853, p. 108), donated its swamp lands to Stoddard county, upon the terms and provisions of an act approved March 3, 1851 (Laws 1850-51, p. 238), which granted all of said lands to the county in which they were situated, except such as were situated in the counties of Scott,- New Madrid, Pemiscot, Mississippi, Cape Girardeau, Stoddard, Dunklin, Ripley, Butler and Wayne. The State by previous act having appropriated fifty thousand dollars to reclaim said lands in the counties excepted, it was provided in the Act of 1853, that said counties should refund to the State said sum as the price of being placed on an equal footing with all other counties in the State as to their swamp lands.
By an act approved January 28, 1855, so much of the Act of February 23, 1853, as required “that the amount appropriated for the reclamation of said lands, etc., be refunded to the State,” was repealed. [Laws 1854-1855, p. 160.] By an act of the Legislature approved February 28, 1855, the several county courts of this State were “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 might think conducive to the interest of said counties.” [Laws 1854-1855, p. 160.]
Subsequently, by an act approved March 27, 1868 (Laws 1868, p. 68) the Legislature revised the swamp land laws of the State. The first section of that act is in the identical language of section 1 of chapter 48, General Statutes 1865, p. 278.
By its terms “all of said lands in this State are hereby donated to the,counties in which they may be respectively situated, and shall be the absolute property of such counties, for the purpose hereinafter designated.” This act simply confirmed to the counties the title which had been already granted to them by the Acts of 1851, 1853, 1855 and 1857, above noted. The designated purposes were “drainage and reclamation,” the primary and exclusive purpose for which they had orignally been granted by Congress to the State, and after that was accomplished and all costs of reclaiming, drainage and selling had been first paid, then the balance should go to the school fund. As already said, ,in the view we take of this case it is not necessary, in order to sustain the judgment of the circuit court, to hold that these lands could be sold under execution on a general
The important question to determine on this appeal is the power of the county court of Stoddard comity to sell and convey these lands, and what limitations have been imposed upon them by our several statutes. In Linville v. Bohanan, 60 Mo. 554, the Act of February 28, 1855, came before this court for construction as to the rights of the counties thereunder, and Judge Wagner, speaking for the whole court, said:
“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,” to-wit (2 R. S. 1855, p. 1006, sec. 6), “the net proceeds of the sales of all such lands, after defraying the expenses of draining, reclaiming, surveying and selling the same, shall be paid into the county treasury, and become a part of the public school fund of the county. ’ ’
In that case this court drew a clear distinction between the powers of a county court over the sixteenth section school lands, the title to which had never been in the counties, and these swamp lands, which had been donated to the counties by such plain and unequivocal language as was found in the Act of 1855. Said this court: “The absolute title h> the lands was vested in the counties, to be disposed of in the discretion of the county courts. ... 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, ’ ’ a right which the court had already shown was not in the county as to the school or sixteenth section lands.
When that decision was rendered there was imposed upon the county courts the same duty to cover
The county of Stoddard, as held by this court in State ex rel. v. New Madrid County, 51 Mo. 85, did not acquire its title to the lands in suit by the Act of March 10, 1869 (Laws 1869, p. 66), but by the previous acts already cited, which were continued in the act of March 27, 1868. Prior to the Act of 1868 there was no restriction. of the sale of these lands to public sales by the sheriff. By section 3 of that act it may be fairly inferred that the Legislature intended to require them to sell them only at public vendue by the sheriff and for not less than $1.25 an acre. But by the Act of March 10,1869, there was an unmistakable purpose on the part of the General Assembly to restore to the county courts the power of private sale which they had prior to the Act of March, 1868. The Act of 1869 recites that, “in order to convey to the different counties in the State of Missouri a complete title to all the swamp lands which were granted and have been patented to the State of Missouri by an act of Congress of September 28, 1850, the register of lands is directed' to prepare a patent or patents, embracing all the swamp lands lying within the limits of the several counties, conveying thereby all the title and interest of the State in and to such lands, ’ ’ and makes it the duty of the Governor to sign such patents and have them attested by the Secretary of State.
The sixth section of that act provides: ‘ ‘ The several county courts shall have full power and control over all such overflowed and swamp lands patented to their respective counties under the provisions of this act, and to sell and dispose of the same in like manner and with like effect as now provided by the general statutes in relation to the conveyance of other real estate belonging to their respective counties.”
“By the Act of March 10, 1869, supra, the whole previous system of the State in regard to these lands was changed, by general law applicable to every county in the State by which a complete title was to be vested in each county by a patent to be issued for the swamp land therein situate, and thenceforth the State delegated to each county the execution of its trust as to the land situate in each county under the general law as expressed in this act and the Act of 1868, supra, which in the main has since remained the general law of the land governing the sale and transfer of title to the purchaser of swamp lands. . . . and thereafter the swamp lands in said county were subject to sale and conveyance by the county under the provisions of the general law expressed in those acts. . . . The county court had power to sell the land therein described at private sale to such purchaser as it might deem advisable at a price less them $1.25 per acre upon the terms upon which sale was made.” And as confirmatory of his construction of the Act of 1869, the learned judge cites Linville v. Bohanan, 60 Mo. 554, and says further, “The limitation of section 3 of the Act of 1868 as to price applies to public sales of swamp lands, and this limitation had expired by lapse of time before this sale was made.”
Obviously the remark as to the five-year limitation had no reference to the power and right of the court to sell at private sale, but merely to give an additional reason why in that case the limitation as to $1.25 would not have been applicable even if it had been a public sale.
In Pool v. Brown, the court was called upon to construe the Act of March 10, 1869, as to the powers of county courts in dealing with their swamp lands, and the point in judgment was, what was the scope of that
Prior to that act the county court was a mere intermediary trustee for the State. It bargained the lands and received the purchase money, but the title was required to be made by a patent from the Governor. As said by Judge Brace, the last act requiring a patent by the State to the purchaser was the Act of March 27, 1868, and by the Act of March 10, 1869, the whole previous system both general and local was changed and thenceforth the counties were vested with the title and were authorized to convey such lanfis just as they could any other lands owned by them.
In that case the lands were sold at private sale for seventy-five cents and the court was requested to declare the law that the county court was not authorized to sell swamp lands for less than $1.25 per acre, and this court responding to this contention unanimously ruled that the limitation as to the price of $1.25 only ap^ plied to public sales of such lands by the sheriff, and that the county courts were authorized to sell such lands at private sale for less than $1.25 per acre, and fortified its judgment by reference to 'the decisions in Linville v. Bohanan, 60 Mo. 554. Placing section 6 of the Act of March 10, 1869, in juxtaposition with the Act of 1855, we find that the former confers upon the county courts full power and control over the swamp lands in their respective counties and the right and power to sell, and dispose of the same as they had to dispose of other real estate belonging to their respective counties, and in the Act of 1855, they were authorized to sell and dispose, of the swamp lands in their respective counties either
' In a word, the two acts confer the same power upon the county courts, and this court having construed that an absolute title was vested in the counties by the Act of 1855, and that as to them they possessed the same powers that owners generally possessed, and where a county had sold to a purchaser of such lands on a credit it could buy it in without any further enabling act authorizing it so to do, the only consistent construction of the Act of 1869 was that which the same court had given the Act of 1855. Indeed, when we consider the emphatic, unambiguous language of both of said acts, we are at a loss to see how the court could have reached a contrary conclusion without rejecting the positive command of our statutes, as the construction of laws which requires all courts in this State to give to words their ordinary and usual sense, and conceding as it has everywhere been recognized that the State had the power to grant these lands to the counties divested of all trusts, we can conceive of no words or language which could have better effectuated that purpose than was employed in both the Act of 1855 and that of 1869.
So that while we entirely agree that the county courts are statutory bodies, and we must look to the laws of the State for their powers, we have no hesitancy in putting our fingers upon section 6 of the Act of 1869 as the authority for the county courts to sell and convey the swamp lands in their respective counties at private sale, and for less than $1.”25, as was unanimously ruled by this court in Pool v. Brown, 98 Mo. 675. That case was decided nearly fourteen years ago, and until the decision in the case of State ex rel. Public Schools v. Crumb, 157 Mo. 545, was never questioned. In that case without adverting to the unanimous decision of this court-in Pool v. Brown, supra, it was.ruled that these lands could only be sold at that time by the-sheriff
But it may be asserted that in Railroad v. Hatton, 102 Mo. loc. cit. 55, 56, it was said: ‘ * Tbe county courts may cause tbe swamp lands to be sold with or without drainage at public or private sale; but they must be sold for not less tban $1.25 per acre. ’ ’
The same able and learned judge who wrote that opinion made no reference to Pool v. Brown, 98 Mo. 675, in which he had fully concurred, when the question be
But there is nothing to show that the learned judge who wrote that opinion had changed his views as to the proper construction of the Act of 1869, nor that the learned judge who wrote the opinion in Pool v. Brown regarded that case as in anywise affecting his decision in the Pool case. Judge Black was construing a contract made in 1882, long after the Act of 1868 had been amended by the Act of 1874 (Laws 1874, p. 101) which expressly provided that the county court could sell swamp lands at private sale without advertisement, but ‘ ‘ at a price not less than $1.25 per acre. ’ ’ It was not necessary to decide even in that case at what price the lands could be sold for at private sale, as the court held in the construction of the contract it was neither for drainage nor sale, but a pure gift of the lands to the railroad company if it would run its road on a designated route, and as the law did not authorize the county court under any circumstances to give away these lands, its contract to do so could not be enforced in equity.
As the Acts of 1868 and 1869 were in pari materia and entirely consistent the one with the other, neither had been repealed, and the Act of 1874 amending the Act of 1868 doubtless was properly construed as limiting the power of the county courts after its enactment to sell swamp lands at private sale for not less than $1.25, but that case in no manner impinges upon the controlling weight and authority of Pool v. Brown, 98 Mo. 675, as to the proper construction of the Act of March 10, 1869, under which the transactions in suit -were had.
That the conveyance by Eltzroth as special commissioner was sufficient to carry the legal title, there can be no doubt. [Hall v. Gregg, 138 Mo. 286; Elliott v. Buffington, 149 Mo. 676; Prior v. Scott, 87 Mo. 303; Wilcoxson v. Osborn, 77 Mo. 621.]
This contention is not a new one, either in this court or in the Supreme Court of the United States. In Dunklin County v. Dunklin County Court, 23 Mo. 456, it' was insisted that an order of the district county court, directing the alternate sections of the swamp lands owned by Dunklin county to be sold and conveyed to the Cairo & Pulton railroad in payment of a subscription to the capital stock of said company, was a breach of the trust which Congress confided in the State of Missouri when it granted it these lands in 1850, for the exclusive purpose of reclaiming said lands by means of levees and drains, but Judge Leonard speaking for this court in answer to such contention, said: “The original grant, made by the State to the counties', was in order to execute this trust, and it is supposed that the trust is fastened upon the lands, so that they can not be disposed of by the State for any other purpose: This, however, is not correct; the trust reposed by the United States is in the State of Missouri; it is a personal trust, in the public faith of the State, and not a property trust, fastened by the terms of the grant upon the land itself, and following it into whose hands soever it may. pass.
Afterwards the case of the Emigrant Co. v. Adams County, Iowa, 100. U. S. 61, came before the Supreme Court of the United States. That county had conveyed its swamp lands to the Emigrant Company, and subsequently brought suit to avoid its contract on the grounds, first, that the sale of the county’s swamp lands was made at a much less price than the law allowed them to be sold for; that by the laws of Iowa it was unlawful to sell them for less than $1.25 per acre, whereas by the said contract nearly 8,000 acres were sold for $2,000; and for fraudulent representations. Mr. Justice Bradley, speaking for the court, among other things said, ‘ ‘ But there was one aspect of it which, at the conclusion of the first hearing, we thought deserving of consideration, and that was the general character of the transaction, viewed' in connection with the act of Congress by which these lands were granted to the State. ’ ’ He then repeats the provisions of the Act of September 28, 1850, the same under which the State of . Missouri obtained the lands in suit, especially the proviso which required the proceeds of said lands, whether from sale or direct appropriation, to be applied exclusively, as far as necessary, to the purpose of reclaiming-said lands by means of drains and levees, and said, “Our first view was, that this trust was so explicit and controlling as to invalidate the scheme finally devised by the Legislature of Iowa for the disposal of the land, under which the contract in question was made. But on more mature reflection, we are satisfied that such a result did not necessarily follow.” He then points out that the Legislature of Iowa by Act of February 2, 1853, granted the lands to her several counties, subject
It was accordingly held, just as Justice Leonard had held nearly twenty-three years before, that the county which had thus disposed of its swamp lands could not rescind its contract on the ground that it was a violation of the trust imposed by the act of Congress.
The same doctrine was announced in the subsequent case of Mills County v. Railroad Companies, 107 U. S. 557, in which the Supreme Court of the United States, referring to the duty of the State to apply the proceeds of such lands to reclaiming them, remarked that, “whether faithfully performed or not, was a question between the United States and the States, and it is neither a trust following the lands, nor a duty which private parties can enforce as against the State. ’ ’ And such has been the unbroken line of adjudication in this State. [Sturgeon v. Hampton, 88 Mo. 210; Pool v. Brown, 98 Mo. 681.]
Conceding, as we do, that it was entirely competent for the State to grant these lands to the several counties, either with or discharged of a trust, and that the Legislature could designate, as it did, the purposes to which the counties should devote these lands, we think it is clear that the only use or trust which the State declared, so far as the schools were concerned, was upon “the net proceeds” of such lands after deducting all
We concede that the State has full power to compel the county of Stoddard to account for “the net proceeds” of the sales received by the county court from Ringer, but that is a very different proposition from that advanced that the county can, after thirty years, repudiate the sale it made to Ringer, and the patent which its commissioner Eltzroth made by the direction of the county court. We are dealing not with a case in which the county court had no authority to sell and convey the lands in which the acts of the court and its commissioner would be void, but at most an irregular or defective execution of an indisputable power, and in a case in which no fraud is charged or proven'. To hold that this trust is fastened upon these lands in the hands of these remote purchasers from Ringer, when the substituted trustees had a plain statutory power to sell and convey and they had executed that power and their commissioner had conveyed the lands by an instrument which gave no notice of any breach of the trust, would in our opinion be subversive of all the principles of equity and justice, especially after the lapse of thirty years. That the county of Stoddard may be required to make good to its public school funds the amount it received from Ringer and others who purchased these lands from the county court, is equitable, but it has no right to repudiate a contract which is not tainted with fraud because at this late day it is assumed or appears
It was not incumbent on the purchasers to see that the county court properly covered the purchase money into the school fund.
Upon the contention that the acts of the county court, in respect to the disposition of the land in controversy, were absolutely void, and that the powers of the county court are limited and defined by law, our attention is earnestly invited to numerous cases decided by this court. Before proceeding to an investigation of these cases, it must be observed that the record discloses, in respect to the sale of this land, that the acts of the county court are divisible. If the county courts were authorized to sell this land, in pursuance of the Act of 1869, then we look to the act of the court that consummated that sale; that is, the Eltzroth patent. That act is regular upon its face — does not purport to be based upon the Ringer judgment,. or upon the order of compromise, but specially recites that it is done, in “pursuance of the provisions of the law of this'State.” That act in itself, if the. power to perform it existed, is not void, but in order to have it's force and power rendered inoperative, it is necessary, if even appellant’s contention is to be upheld, to show by evidence aliunde, that such patent emanated from the order of compromise, which appellant insists was without authority of
In the case of Butler v. Sullivan Co., 108 Mo. 630, cited by appellants, is simply a reiteration of the principle announced in the ease of Sturgeon v. Hampton, supra; hence, what is said as to the application of that case to the case at bar is for the same reason applicable to the Sullivan county case.
The case of Railroad v. Wayne County, 125 Mo. 351, was a suit upon a contract entered into by the county with the railroad company, relative to certain work in respect to draining certain swamp lands belonging to Wayne county. All the defects and infirmities appeared upon the face of the contract, and that suit was on the contract, and the court announced the principle discussed under this contention. We readily assent to the doctrine as announced upon the facts in that case, but a casual examination of it will demonstrate beyond dispute that it is not applicable to the case before us.
In the case of Hooke v. Chitwood, 127 Mo. 372, there was no evidence upon the face of the instrument that the county ever sold the land; hence, the court very appropriately quoted the principle that “the statutes constituted the warrant of authority” in the county courts to sell or dispose of swamp lands.
As to instruments where the defects appear on the face of the instrument, the rule announced in the case of Tydings v. Pitcher, 82 Mo. 379, and other cases on effect of notice cited by appellant, will apply; but they do not apply where the instrument is regular on its face and is issued by proper authority. In the patent executed by commissioner Eltzroth, no reference is made to the order empowering him to act as such commissioner, nor does it make any reference to the order of compromise. Nor was it necessary for him to recite the power under which he acted. [Henry v. Atkison, 50 Mo. 266; Swartz v. Page, 13 Mo. 603; Jamison v. Fopiana, 43 Mo. 565.]
In the case of Tydings v. Pitcher, supra, the true test as to the character of notice that is to be imputed to a purchaser, is very tersely stated, in the language of Commissioner Leonard of New York: “The principle of equity is well established that a purchaser of land is chargeable with notice, by implication, of every
We repeat that the only instrument in respect to the sale of the swamp land by Stoddard county involved in this case that was entitled to a place upon the land records of Stoddard county, was the one that evidenced the sale of the land, that is to say, the Eltzroth patent. Of this instrument and its entire contents, the respondents were charged with notice. Again we say, they were not required to investigate and examine the various orders of the county court authorizing such conveyance. They had the right, as was announced in the case of State ex rel. Board of Education v. Wayne County Court, 98 Mo. 362, to assume that “public officers have proceéded in obedience to, not in disregard of, their duties and obligations as such.”
It is insisted by appellant that the acts of the county court of Stoddard county were void and that respondents are charged with notice of all the orders of the county court, and its acts being void, can not be ratified, and that the county can not be estopped by reason of such void acts.
If such contention is maintained, we are unable to discover upon what theory the learned judge, in the case of Dunklin Co. v. Chouteau, supra, reached the conclusion he did, in respect to the contention in that case, which is identical in principle with the one involved in the case before us. In the Dunklin county case, there was involved a hundred thousand acres of the most valuable swamp land in that section of the State. The district county court of Dunklin county subscribed for
It is next insisted by appellant that “this case in its very nature, is not susceptible of being controlled by the doctrine of laches.” In respect to that contention, we will say that, having reached the conclusion that the county court of Stoddard county had the power to sell the lands under the Act of 1869, at private sale, through its appointed commissioner, at less than $1.25 per acre, we are of the opinion that the patent executed by commissioner Eltzroth was not absolutely void. And this leads us to the discussion of the only unsettled question, in that contention, and that is as to the application of the doctrine of laches to counties.
The administration of equitable principles is not dormant, but as the development of the county and business interests advance, new subjects are created to which these principles are to be applied, and it has very appropriately been elsewhere said:
“It is a mistake to assume that the doctrine of laches or delay, or the doctrine of estoppel, does not apply to a county or other municipal corporation. Indeed, it may be said that there is no State, or any of the political subdivisions of a State, against which the doc*464 trine of estoppel or laches may not in certain instances be urged. If a transaction shows all the observances of the law, then the law itself will afford all the relief necessary, and estoppel or laches need not be urged. It is only where there are irregularities by the officers and agents of States or municipalities in the performance of certain duties imposed upon them by the Constitution or laws, that there is reason that they should not be allowed to insist that the act was improperly or irregularly done to the prejudice of those who, in good faith, have assumed, and acted upon the assumption, that the acts of such officers and agents were within their power to perform. The doctrine of estoppel is not only a very old doctrine, but, it may be said, is one that ‘has grown with the growth’ of human affairs. It is a principle whose existence is not to be deprecated, for its enforcement not only prevents the commission of a wrong upon those who are innocent, but it teaches the moral lesson to all persons that they shall not to-day dispute the truth of what they said yesterday, to the financial injury of others. ‘Its foundation is laid in the obligation which every man is under to speak and act according to the truth of the case.’ [Hermann on Estoppel and Res Adjudicata, see. 14.]”
In the case of People v. Maynard, 15 Mich. 463, where the inyalidity of an act organizing a county was suggested on constitutional grounds, Campbell, J., says:
“If this question had been raised immediately, we are not prepared to say that it would have been altogether free from difficulty. But, inasmuch as the arrangement there indicated had been acted upon for ten. years before the recent legislation, and had been recognized as valid by all parties interested, it can not now be disputed. Even in private associations, the acts of parties interested may often estop them from relying on legal objections, which might have availed them if not waived. But in public affairs, where the people have*465 organized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements, and exercising their .usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as on the regularity of their origin. . . . Whatever may be the rights of individuals before such general acquiescence, the corporate standing of the community can no longer be open to question. . . . The exercise of jurisdiction being notorious and open in all such cases. . . . there is no principle which could justify any court in going back to inquire into the regularity of the law of 1857.”
To the’same effect is the case of People ex rel. v. Alturas County (Idaho), 55 Pac. 1067, where the court says that “public policy and sound principles of law require that the State now be held estopped from questioning the manner of the passage of the act in question. ’ ’
In the case of Adams County v. Eailro'ad, 39 Iowa 507, where the county set up the title to swamp land claimed by defendant, the court held that the plaintiff, by assessing the lands to the railroad company and collecting taxes from the company thereon, had estopped itself from claiming title to the land as against the company.
The cases are very numerous in which it is held that a county may be estopped by the acts of its agents.
In the case of Eailroad v. Marion Co., 36 Mo. 294. it is said: “Where a county, acting under authority it supposed to be valid, subscribed b> the stock of a railroad company in good faith, issued its coupon notes in payment of such subscription, for a series of years, voted such stock and paid its coupons, and such notes passed into the hands of innocent and bona fide purchasers, it is estopped from asserting that such notes were illegally issued.”
If the Legislature had never conferred upon the counties the power, through their county court, to sell and dispose of swamp lands, and the court had undertaken to do so, it is very clear that no subsequent action of the counties could have ratified the unauthorized act of the county court.
The principle is that, where a county court is charged by law with the performance of certain duties in reference to a particular subject-matter, and that court undertakes, in good faith, to execute its powers, but fails to observe certain requirements of the law, so that its acts in that regard are- irregular, such acts, if acquiesced in, will 'become binding upon the counties as completely as if they had been regular in the first instance.
Here, the Legislature authorized the counties to sell the swamp lands. When Stoddard county undertook to sell the land, it but exercised the right of disposing- of- the land conferred upon it by the Legislature. It had the right to sell it, and, as we think, at public or private sale. Anyhow, it had the right to sell it, and it did undertake to sell it more than thirty years ago, and had acquiesced in the sale which it' has made ever since.
We take it that it is no longer a disputed question that the doctrine of laches applies to- a county or other municipal corporation, as well as to individuals.
This brings us to the application of the doctrine of delay or laches, to the facts of this case.
The admission of appellant in respect to the conduct of Stoddard county in reference to these lands for the last thirty years, renders it unnecessary to minutely detail all the testimony submitted in the trial court: The
There was some evidence introduced that the $13,-500 in warrants issued by Stoddard county and accepted by it, were only worth thirty or forty cents on the dollar, and it is intimated by counsel for the Board of Education, that this is an important fact in the consideration of this case. It will be observed that the Board of Education is not a party to this suit. The county of Stoddard is the only party defendant, and the only necessary party in this proceeding; and we say now, that, standing as she does in a court of equity, her position is a very unfavorable one, to ask this court to consider the worthlessness of its own obligations, ere
The chancellor who tried this case doubtless, reached the conclusion that appellant was a long time-in making known her grievances in this transaction, which is now so earnestly urged as a base outrage. It is no answer to the proposition involved in this case to say that the county courts are the trustees of a sacred fund. The people are the beneficiaries of this-fund, and the county court represents the people; and while we fully concur in the doctrine, that the county courts are creatures of the statutes, with limited and well-defined powers, it is not contemplated that they are to be regarded as perfect “dummies,” and the sooner and more firmly it is impressed upon the public that the acts and conduct of public officials may, under certain conditions, affect the interests of the public, the more readily will the conclusion be reached that in the selection of our official representatives, it is important that some attention be given, not only to their honesty, but also to their business discretion and judgment. If these lands were improperly disposed of by Stoddard, county, her agents and officials knew it as well twenty-five years ago as they do now, or at least they had the same opportunity of knowing it, and still these parties are permitted to remain in possession of these lands, exercise acts of ownership over them, and at this late day (1898) after the expiration of thirty years, for the
The Dunklin county case, supra, is decisive of this. The facts in that case did not appeal as strongly to the conscience of the chancellor as they do in the case at bar. Dunklin county never received a dollar in consideration for the large body of land conveyed in the patent by the Governor. The Cairo & Eulton railroad to which these lands were conveyed, was never built; it was simply a railroad on paper. Still the county remained silent for thirty years, assessed and collected taxes on the land, made compromise deeds, and the learned judge in that case said: “No excuse whatever is offered for the long ■delay and inaction on the part of the plaintiff. The neglect of the county in asserting its rights in a proper way for so great a length of time, to the continual prejudice of the rights of the defendant, can not be excused.. Courts of equity can not and ought, not to give relief in such a case. The delay and conduct of the county is a complete bar to the relief which it now asks, and this is true, though the defendant may not have had ten years’ adverse possession of the lands.”
The. same doctrine is clearly announced in the case of Boone County v. Railroad, 139 U. S. 684. The court said in that case: “The principle of ratification by laches or delay is as applicable to such a municipal corporation as it is to a private corporation or to an individual person. ”
The principle of applying laches to counties, finds strong support in the recent case of American Stave & Cooperage Company v. Butler Co., 93 Fed. 301. This was a suit against Butler county to quiet title to certain swamp lands which had previously been conveyed by said- county to the Iron Mountain Railway Company, the grantor of plaintiff. Butler county undertook by its answer in that case, as Stoddard county does in this, to avoid the conveyances, for the reason that- the county had been defrauded out of its swamp land. Adams, J.,
To the same effect is the case of Rummel v. Butler Co., 93 Fed. 304. In this last case cited, lands were conveyed in payment of subscription of stock to the Cairo & Fulton company. The county asserted that the subscription for stock and the conveyances were invalid. Adams, J., said in deciding the case: ‘ ‘ The county must be held to have effectually ratified its subscriptions, . . . by its long delay and laches in asserting any claim to the contrary. ’ ’
It must be remembered that the cases cited as applying the doctrine of laches to counties were cases in which the very character of land (that is to say, swamp land) was involved, as is in suit in the case before us, and in these cases it was urged with the same earnestness and ability that this land being held in trust for the school fund, this doctrine did not apply. The courts.
The facts in this case fully warranted the trial court in the conclusions reached; it was especially appropriate to apply this doctrine upon the facts as disclosed. It must not be forgotten that these respondents are not the original purchasers of this land; but they stand before the chancellor, innocent purchasers for value, in good faith; their position entitles them to every favorable presumption in their behalf. If the county of Stoddard had rights in this land, her long silence, her acceptance and retention of the money paid her, her continuous acceptance of taxes and efforts to enforce the" collection of the assessments levied, are a complete ratification of the conveyance made by commissioner Eltzroth to these lands, and the appellant is now estopped by reason of the laches or delay in asserting such rights.
This leads us to the last proposition involved in this case. The General Assembly at its session in 1901,-enacted the following provision in respect to swamp lands. Section 8197, Eevised Statutes 1899, was amended, and the amended section contained this proviso: “Provided, further, that in all cases where the county courts of this State have, prior to 1880, sold or disposed of any such swamp lands in their respective counties and issued, or caused to be issued, patents for the same, and the patentees, or those claiming under them, have been claiming such lands and paying county and state taxes thereon for more than twenty years, such grants shall be deemed and held to be good and valid, and no action shall be maintained for the purpose of setting aside or calling in question such patent or patents.” [Laws 1901, p. 202.]
This amended section presents two questions for our consideration:
First. What is the force and power of the act?
Second. The act not being in force at the time of the trial of this cause in the lower .court, can this court,
It is unnecessary for us to state that the swamp lands in the respective counties of this State, have been the subject of litigation for years past; for we need only turn to the numerous reports of cases in the .appellate courts, or exarbine the dockets in the circuit courts of State, to have a full and complete verification of this statement. This statute was doubtless intended as a curative act; its purpose was to make valid powers defectively executed, and put an end to litigation on this subject.
As we have heretofore stated ih this opinion, the title to these lands were vested in the counties, with power of disposition; the trust reposed in the counties by the State, in donating these lands, was a personal one, applicable alone to the net proceeds of the sale. These lands were held in subordination of the power of the State. A county is simply a part of the State; it is a mere subdivision of it. Although these lands were donated to the counties by the State, it did not divest itself of all control or management over the same. [Barton Co. v. Walser, 47 Mo. 189.]
In fact a reference to the innumerable statutes upon the subject of swamp land, will disclose that the State has ever kept in touch with those lands, and from time to time, as occasion required, has changed the method of disposition by the counties. In fact all the power, capacity and duties of the counties are derived from the Legislature, and they are subordinate to the power of the State, through this legislative body. [Hamilton v. St. Louis Co., 15 Mo. 3; People ex rel. v. Power, 25 Ill. 190; East Hartford v. Hartford Bridge Co., 10 How. 511.]
An act was passed by the Legislature very similar to this one in 1868. It provided: ‘ ‘ Section 1. That all deeds or patents granted or made by the county courts of the State, in which any of the lands known as swamp
This act was in judgment before this court in the case of Barton County v. Walser, supra. The act was held valid. The court announced in that case that as between individuals, “the Legislature can not validate void deeds; but counties are not individuals; they are political divisions of the State; their functions are of a public nature; they hold their property in subordination and under the control of the Legislature.” In that case the deeds validated were void; they were executed by a person without authority.
The conclusion reached in the Barton county case was bottomed upon the ground that the Legislature had' given the power to the counties to dispose of the land; that the counties had exercised the power, but not in the method designated by statute. The court further said in that case that “no vested right of the citizen is interfered with. The State is only rendering valid the acts of one of her political divisions, which was done under and by virtue of the authority of the Legislature, but was carried out and executed in an informal manner. The Act of 1868 is a legislative confirmation, and simply makes good the acts of the officers in the same manner as if they had proceeded in a formal, regular way in the execution of their authority. ’ ’ The case of Barton Co. v. Walser, supra, was approved in the case of Sturgeon v. Hampton, 88 Mo. 203.
It' is true in the Barton county case, it is said the money was paid and went into the school fund; but that does not prevent the principle from being applicable to the case at bar. In this case it is not pretended that this transaction, was based upon fraud; but doubtless the county court proceeded upon the theory that Stoddard county was not only tide legal owner of the land, but that there was no trust as to the proceeds of the sale and accepted the $13,500 in warrants issued by Stoddard county, and upon receipt of this, the patent was issued. •As to whether the county of Stoddard had ever applied the value of the consideration received, to the school fund, the record does not disclose. We do not think that the respondents or their grantors had to follow the fund.
In the case of Moss v. Kauffmann, supra, the facts in that case were that Thomas Allen purchased from Bollinger county certain swamp lands, and paid for them in railroad stock, which appeared upon the face of the deed. This deed was held void; but the county of Bollinger had converted the railroad stock into money. Houck and Brown succeeded to whatever equities Thomas Allen had in the money realized by the county from the stock; they afterwards purchased the land from Bollinger county, and the value of this railroad stock was considered a part of the purchase money.
In the case of Linville v. Bohanan, 60 Mo. 554, the commissioner sold the swamp land on a credit, the purchaser executing a mortgage for the purchase money. The land was sold in pursuance of the provisions of the mortgage and the county became the purchaser. There was no provision of the statute authorizing the county to buy. This transaction was upheld, under the statute then in force, which authorized the county courts to sell and dispose of the swamp lands.
These cases indicate very clearly that the title to these lands being in the county and the trust only being applicable to the proceeds of the sales, the poivers of the county court, as designated by statute, in respect to the sale and disposition of these lands, are not to be construed as meaningless. But aside from this, the Act of 1901 is not to be construed as making a patent-valid that recites a consideration which would make it void; but its application is sought as to patents reciting “that full payment has been made to the county of Stoddard as provided by the laws of this State.”
"When this act was passed, the State, to whom the counties are subordinated, was presumed to know the conditions and character of title it desired to relieve and quiet, and when it stretched out its strong arm to accomplish this purpose, we are of the opinion that it had full power to do so.
The only remaining question is the power of this court to apply the curative provisions of the Act of 1901 to this case, the act not being in force at the time of the trial in the lower court. This is the first lime this question has ever been presented to this court for determination. Upon an examination of this subject, we find that recognized authority fully supports the contention of respondents, and that this court has the
This curative act not only provided that “no action shall be maintained for the purpose of setting-aside or calling in question such patent or patents,” but it expressly declared that “such grants shall be deemed and held to be good and valid.”
The patent involved in this case, together with all the acts of the parties claiming through such grant, are-brought directly within the character of instruments intended to be cured by the Act of 1901, and if such in
Entertaining tbe views as herein expressed, we have reached the conclusion that the action of the trial court was not only appropriate and just, but is supported by every principle of equity, and its judgment will be affirmed.
Dissenting Opinion
Dissenting Opinion.
I do not agree to the foregoing opinion of the majority of the court, but adhere to the views expressed in the original opinion in this case, delivered on March 28, 1902, and in which all the members of the court except Burgess, C. J., then absent, concurred, and which is as follows:
“These two cases were tried together, brought here on a single transcript, and may be treated as one case, The decrees of the circuit court were in favor of the plaintiffs in each case, and the defendant appeals.
‘ ‘ On March 13,1868, in the Stoddard Circuit Court, a judgment was rendered as follows:
“ ‘Louis M. Ringer v. Stoddard County — Civil Action : Debt. Now comes the plaintiff by his attorney and it appearing to the satisfaction of the court that the defendant herein has been duly notified of this proceeding by personal service as the law directs, and that said plaintiff did at the last term of this court recover an interlocutory judgment against said defendant and the said defendant being solemnly called comes not but continues to make default, whereupon, upon said motion, said judgment is made final for $1,136.08. It is therefore considered and adjudged by the court that said plaintiff recover of and against said defendant his debt aforesaid in form aforesaid found, in the sum of $1,136.08, together with his costs and charges by him*478 laid out and his said suit in this behalf expended, which costs amount to $10.65, and that he have execution therefor, and that this judgment draw interest at the rate of six per cent per annum. ’
“In pursuance of an execution issued upon said judgment dated August 17, 1868, the sheriff of said county levied upon all the right, title and interest of Stoddard county in and to 80,172.71 acres of land situate in said county,' and on September 15, 1868, sold said lands to D. Starks Crumb and Lorn's 1..'. Rmger for the sum of $663.95, and duly executed and r!e-Gored to them a deed therefor dated September 16, 1868. The lands thus sold and conveyed were swamp lands donated to the State of Missouri by act of Congress approved September 28, 1850, and by the State of Missouri donated to Stoddard county by the act of the General Assembly approved March 27,1868, and previous acts for the purposes in said acts designated (Laws 1868, p. 68; Laws 1857, p. 32; Laws 1854-5, p. 154; Laws 1852-3, p. 108; Laws 1850-1, p. 232).
“Afterwards on April 23, 1869, an order was entered of record by the county court of Stoddard county as follows:
“ ‘Whereas at the March term, A. D. 1868, of the circuit court of Stoddard county, in the State of Missouri, Louis M. Ringer obtained a judgment against Sotddard county upon warrants on the swamp land fund of said county, upon which said judgment an execution issued according to> law, by virtue of which said execution the sheriff of Stoddard county did seize and levy upon all swamp land owned and possessed by said county, of which said lands so levied upon one hundred and seven thousand or near that amount of acres of said lands were sold by said sheriff in due accordance of law at the September term of the circuit court of Stoddard county, A. D. 1868, to Louis M. Ringer and others; and whereas, the county court of Stoddard county, did at its February term, A. D. 1869, by an order of record,*479 appoint William Gr. Pelham and David Gr. Hicks, attorneys for and on hehalf of said county, to institute suit for the recovery of the lands sold as aforesaid, granting to them the interest of the county to fifty thousand acres of lands so sold as their fee: Now, therefore, in consideration of the facts that said suit would he attended with much uncertainty in the recovery of said lands and require years of litigation to terminate the same, it is, therefore, considered by the court that a compromise of the same would be for the benefit of the said county of Stoddard if made with the parties who bought said lands at said sale, whose names are as follows, to-wit: Louis M. Ringer, D. Starks Crumb, Erastus W. Hill, Thomas W. Johnson, Samuel J. Burdett, L. Frank Starrs, Robert W. Carter, M., E. Leach, William P. Knox, Clarissa M. O’Dell, H. H. Bedford, James Frazier, William W. Norman, J. More, J. E. Liles and Jesse B. Legget; and, whereas, said purchasers agree and covenant to pay to the said county the sum of thirteen thousand five hundred dollars in Stoddard county warrants, which sum is to’ be paid into the county treasury on the following terms and in the following manner, to-wit: said parties either paying as aforesaid or executing their promissory notes, bearing six per cent interest; one-half of said sum shall be paid as aforesaid on or before the first day of January, A. D. 1870, and the remaining half on the first day of January, A. D. 1871, each of said parties giving notes for their portion of said sum shall secure the same by mortgage on real estate to the satisfaction of the county court of the said county. Therefore it is considered, adjudged, ordered and decreed, that in consideration of the premises aforesaid, the county court shall and will cause letters patent to be issued to the purchasers of said lands, and to their assigns, conveying in fee simple, all the right, title, interest and claim of said county, of, in and to the lands sold by virtue of said execution, to the parties who purchased the same or to their as*480 signs. And it is further ordered that for the purpose of carrying out this order in good faith towards the purchasers aforesaid, and their assigns, the county court of this county does hereby make, constitute and appoint Alfred Eltzroth a special commissioner for and on behalf of said county of Stoddard, to make, execute and deliver to said purchaser's or their assigns, letters patent for the lands aforesaid. Said commissioner to receive usual fee for such services to be paid by the parties to whom the patents shall be made, which said patents shall be delivered-to the parties aforesaid, upon the execution, acceptance and delivery of the-mortgage aforesaid, on the production of the county treasurer’s receipt for the pro rata of the aforesaid thirteen thousand five hundred dollars due upon the amount of lands for which patents are to- be issued. And it is further ordered that on compliance a special provision of this compromise, William Gr. Phelan and David'Gr. Hicks are to receive out of said lands so sold, ten thousand acres each, in lieu of the fifty thousand acres mentioned heretofore, the same to be selected. Said selection to- be justly proportioned between the parties who are to receive patents for said lands as aforesaid in equal pro rata of said lands so sold, that being seventeen and one-half per cent. And the commissioner aforesaid is hereby ordered to issue to said Phelan and Hicks patents for the lands so selected, upon their securing or paying to said county fifteen hundred dollars of said thirteen thousand five hundred dollars. And it is further ordered that upon the issuing of patents to William Gr. Phelan and David Gr. Hicks to the amount of lands above mentioned, then the order made at the February term, 1869, granting said Phelan and Hicks as attorneys to protect the interest of said county fifty thousand acres of said land, shall be considered, revoked, held for naught and cease to be of effect. ’
“Afterwards on and before May 1, 1869, the said special commissioner in pursuance of said order, upon*481 compliance with, the terms thereof, issued patents to the purchasers. By mesne conveyances the plaintiff, Albert P. Simpson, has acquired the title of the said Einger and Crumb so conveyed by said sheriff’s deed and patents, to 9,121.50 acres of said land and the plaintiffs Himmelberger have acquired title to 640 acres thereof.
“Afterwards in an action in ejectment in the United States Circuit Court for the Eastern District of Missouri this title came before that court for adjudication in the case of Stone v. Perkins, 85 Fed. 616, in which it was decided‘that the land in question was held in trust by Stoddard county for the ultimate use and benefit of the public schools of the county, and was not a part of the general assets of the county of Stoddard, or subject to be sold on execution to pay a general judgment against the county.’ Hence, ‘the plaintiff’s remote grantor acquired no' title by virtue of the execution sale, and the plaintiff has acquired none by the several mesne conveyances from such grantor to him.’ And that, ‘The county court exceeded its authority in making the compromise agreement in question, and the deéd made by the commissioner, Eltzroth, to plaintiff’s grantor, pursuant to such compromise, conveyed no title for the following reasons: (1) Because the compromise was based upon a recognition that Einger had some right to the land, arising out of the execution sale, and in the settlement with him, and the deed executed pursuant thereto, trust property belonging to the public schools was indirectly appropriated to the payment and satisfaction of a general judgment against Stoddard county. (2) Because the compromise involved a settlement of a large demand, on the part of the attorneys above named, against Stoddard county, arising out of their said contract of employment with the county. (3) Because, by the terms and provisions of the compromise, the land was bartered; that is to say, was not sold for cash, or for work done or to be done in draining other swamp*482 lands. (4) Because, treating the consideration received as the equivalent of cash to the amount of the alleged face value of the securities taken (the same being $13,500, in the aggregate, for 107,000 acres of land sold), it amounts to only about eight cents per acre, instead of $1.25, as required by the Act of March 27,1868, supra, as construed by the Supreme Court of Missouri, supra. (5) Because the compromise as made, taken as a whole, as above analyzed, can in no proper sense be regarded as a sale and disposition of the swamp lands for the benefit of the schools of the county, under and pursuant to the statutory authority conferred upon the county court.’
“Afterwards on April 16,1898, the county court of Stoddard county made an order, of record, as follows:
“ ‘On this day the question of the future action of this court in relation to the swamp lands of Stoddard county known as the “Ringer lands,” coming on to be heard, and the court being fully advised in the premises •doth consider and adjudge that, in view of the recent decision of Judge Adams of the United States Circuit Court for the Eastern District of Missouri in the case of Stone v. Perkins, said lands belong to Stoddard county and ought to be sold by the county and the revenue arising therefrom applied as directed by the statute. It is further considered and adjudged by the court that justice demands that those parties having a bona fide chain of title coming down through the Ringer sale, ought to have the preference in the sale of said lands. It is therefore ordered by the court that all parties holding the Ringer title to said" lands be and are hereby given until the first Monday in November, 1898, to come on and make application to the court for the purchase of any of such lands which they may hold under and by virtue of the Ringer sale at the price and sum of one dollar and twenty-five cents per acre, on such terms as the court by order of record may direct, and that ail of said lands that shall remain unsold after the first*483 Monday in November next, will be offered for sale to tbe general public as other lands of the county are now sold, and that the holders of the Ringer lands be notified of this action of the court by the publication of this order in the Bloomfield Vindicator, and that all parties desiring to make application for the purchase of any such lands should apply to Ralph Wammack of Bloomfield, Missouri, who is hereby constituted agent of the county in the settlement of the title to said lands.’ ”
Afterwards on September 14, 1898, these suits were instituted.
The petition, which is very voluminous, sets out at length plaintiff’s chain of title, the facts aforesaid in detail, and further alleges in substance, that the Ringer judgment was upon county warrants issued for work and labor done under a contract made with the county court of said county, for the construction of certain ditches, dikes and levees, for the purpose of reclaiming said lands, whereby it was agreed that payment therefor would be made by warrants on the swamp land fund of said county, and thereupon it was represented by said county court that such warrants would be paid on presentation to the county treasurer, the custodian of the swamp land fund. That the same having been presented to the county treasurer and payment thereof refused, the said Ringer, being the assignee and holder of said warrants, instituted the suit thereupon in which said judgment was rendered. That since the conveyance by the sheriff’s deed aforesaid, and the issue of the patents aforesaid by. commissioner Eltzroth, the lands claimed in this controversy have been assessed to and the taxes paid by the plaintiffs and their grantors. That they have been in the continuous, open, notorious and adverse possession thereof for more than ten years before the institution of this suit, and that for more than twenty-nine years they and their grantors have exercised all such acts of ownership and control over said lands as their condition permitted, during which
“At the time this suit was instituted there was pending in this court on appeal an action in which this same title was involved, and which was thereafter passed upon in Division One, June 30, 1900 (State ex rel. Public Schools of Stoddard County v. Crumb, 157 Mo. 545), in which, after summarizing the statute governing the subject, it was held that, ‘The plan, scheme and policy of the act was to vest the title to the lands in the county for the purpose of drainage, reclamation and sale, or sale without drainage or reclamation, the proceeds to go to the school fund; to authorize the county court to have the lands drained, reclaimed and surveyed under the direction of a commissioner and to give power to the county to raise money for this purpose by borrowing money and issuing bonds; to have the land sold by the sheriff, at public vendue, on sixty days ’ notice, but not for less than one dollar and twenty-five cents an acre within five years from January 1, 1866; and to require the net proceeds of such sale after deducting the expenses of draining, reclaiming, surveying and selling the same, to be' paid into the county treasury and become a part of the public school fund of the county, and to be loaned out like other school funds, and' only the interest arising therefrom to be apportioned
“ ‘But defendants rely also upon the patents issued hy the county,-through its special commissioner, on May 1, 1869. Prior to the passage of the act of March 10, 1869, the patents for all such lands sold by the county courts, were issued by the Governor, countersigned by '-the Secretary of State, and registered in the office of Register of Lands. [Laws 1868, p. 69, sec. 4.] The sixth section of the Act of 1869 (Laws 1869, p. 64, sec. 6) authorized the county courts to issue the patents to such lands and to sell and dispose of such lands like any other real estate belonging to the county. But this .act has been held by this court not to destroy the trust created by the 'Act of 1868, and not to vest absolute •ownership of such lands in the county. [State ex rel. v. Co. Ct. New Madrid Co., 51 Mo. l. c. 85; Sturgeon v. Hampton, 88 Mo. 203; C. G. S. W. Railroad Co. v.
‘ ‘ ‘ The Act of 1869 did not therefore divest or destroy the trust upon which the' county held the land, nor did it change the manner of selling the same, nor remove the limitation as to selling for less than one dollar and twenty-five cents per acre within five years-after January 1, 1866. Its only effect was to authorize the county to issue the patent instead of having it issued by the State.
“ ‘When, therefore, the county court by its order of April 23, 1869, ordered these lands to be conveyed by a commissioner to the purchasers at the execution sale under the Ringer judgment, in consideration of $13,500 “in Stoddard county warrants, or, at the option of the purchasers, in cash, one-half payable January 1, 1870, and the other half January 1, 1871,” it acted wholly without authority of law. As before shown, these lands could only be sold at the time by the-sheriff, at public vendue, on sixty days’ notice, for not. less than one dollar and twenty-five cents an acre, by order of the county court. The proceeds were required to go to the school fund. The county court had no power to authorize them to be sold for $13,500' ‘ ‘ in Stoddard county warrants. ’ ’ That they were so paid for is prima facie shown by the fact’that the commissioner’s deed was dated May 1, 1869, which could not-have been the case if the purchasers had elected to pay in cash, one-half on January 1, 1870, and the other half on January 1,1871. These inherent infirmities in these patents and want of power of the county court were known to the purchasers, for they knew the law and knew the power of the court under the law.
“ ‘It is clear that the trust ran with the land, not-only from the statutory provisions quoted, but from the decisions of this court from the case of State ex rel. v.
‘ ‘ ‘ The circuit court therefore erred in not cancelling the patents issued by the county court through its commissioner. . . . It is only necessary to add that the plaintiff’s rights are not barred by limitation. [Sec. 6772, R. S. 1889.] Neither is there any laches in the case, nor is the ease, from its very nature, susceptible of being controlled by the doctrine of laches. ’
“While the ease of Stone v. Perkins, 85 Fed. 616, was an action in ejectment and the legal title to the land under the sheriff’s deed and patent aforesaid only was
“The effect of the recital, ‘whereas at the March term, A. D., 1868, of the circuit court of Stoddard county in the State of Missouri, Louis M. Ringer obtained a judgment against Stoddard county upon ’warrants on the swamp land fund of said county, ’ etc., in the order of the county court of April 23, 1869, on the judgment, was not directly passed upon in State ex rel. v. Crumb, 157 Mo. 545, for the reasons stated in the opinion on page 561, and on the trial of this case the plaintiffs after showing that all of the original ‘files’ in the case of Ringer v. Stoddard County had been destroyed, introduced two witnesses who had seen the files before they were destroyed (some twenty or thirty years before), the evidence of one of whom tended to prove that the suit in which said judgment was rendered was based entirely on a number of certificates signed by J ames Cooper, superintendent of public works of Stoddard county, called ‘county script’ or ‘swamp land script, ’ and of the other that the suit was based partly on such script and partly on county warrants, and the defendant introduced one witness, who examined the files at the time of the sale, and who testified that the suit was on two county warrants on the general revenue fund of the county. The parol evidence also tended to
“As to these lands the county was a mere trustee, and the county court and the other officers of the county were mere agents, for their disposition, in the manner and for the purposes designated by law, whose powers were defined and limited by law, and whose acts beyond the limits of such powers were void. Of those limitations the defendants and their grantors were required to take notice, and hence they acquired no title to the lands in question under the sheriff’s deed aforesaid, or under the patents issued in pursuance of the order of the county court aforesaid. I - support of which conclusion, we deem it sufficient to cite the cases: State ex rel. Pub. Schools v. Crumb, 157 Mo. 545; Stone v. Perkins, 85 Fed. 616; Hooke v. Chitwood, 127 Mo. 372; St. L., Cape G. & Ft. Smith Ry. Co. v. Wayne Co., 125 Mo. 351; Wm. Brown Est. v. Wayne Co., 123 Mo. 464; Butler v. Sullivan Co., 108 Mo. 630; Cape G. & S. W. Ry. Co. v. Hatton, 102 Mo. 45; Sturgeon v. Hampton, 88 Mo. 203; Saline Co. v. Wilson, 61 Mo. 237; State ex rel. Robbins v. County Court, New Madrid, 51 Mo. 83; State v. Bank, 45 Mo. 528.
“The plaintiffs "acquired no title by the statute of limitations. The doctrine of laches is not applicable to it, nor is the defendant estopped from asserting its title as trustee to these lands for the purposes of the trust, by reason of the fact that for more than twenty-nine years they have been paying the taxes assessed
“At the time this act was passed and went into effect these cases had been tried and finally determined in the circuit court and were pending in this court on appeal. The jurisdiction of this court over them is purely appellate, in the exercise of which we are confined to a review of the case as it was tried below. No new issue can be injected into the cases in this court. Moreover, this statute does not purport to give a cause of action, or to give aid to one, but only to bar an action ‘for the purpose of setting aside or calling in question
