75 Mo. 450 | Mo. | 1882
The suit herein was for a balance due upon the contract which is set forth in the following certified copy of the record of Lafayette county court and upon the following certificate of indebtedness :
Laeayette County Court, i
September Term, second day, Sept. 8, 1874. J
Now, at this day, come Hixon and Russell, and present to the court here a contract, in which they propose to prove certain swamp lands in this county and receive compensation for the same, and which said proposition was heretofore filed in the office of the clerk of this court on the 21st day of July, 1874, and which said contract is in words and figures following, to-wit:
This agreement, made and entered into this 24th day of June, 1874, by and between William Hixon and Charles B. Russell, parties of the first part, and the county of Lafayette, party of the second part, witnesseth : That the said parties of the first part have been appointed by the •county court of Lafayette county, commissioners to hunt up and obtain proof on all lands that were entered by individuals between the years 1850 and 1857, inclusive, being
(Signed) Wm. Hixcn.
Chas. Ben. Russell.
Plaintiffs allege that there was a settlement between Hixon and the county on the 8th day of September, 1874, hy which it was ascertained that the county was indebted to him in the sum of $1,352.60, for which a. certificate of ■indebtedness was issued to him by the County court on the 11th day of September, 1874, which was subsequently assigned by him to plaintiffs, and this suit is to recover of the.county the amount named on the certificate.
It appears from the evidence that at the date of the ■assignment of the certificate to plaintiffs, Hixon was indebted to the county by notes given for school moneys borrowed by him, in an amount exceeding the amount of the certificate of indebtedness, and this was pleaded and .allowed, as a set-off against plaintiffs’ demand, and this is their ground of complaint.
By the contract, the indebtedness evidenced by the ■.certificate was payable out of the funds which should be received by the county from the general government for ¡swamp lands. There was no express agreement to that ■effect, but that such was the understanding of the parties is fairly inferable from the terms and the character of the •contract. The labor Hixon was employed to perform was ■ exclusively in reference to the swamp lands, the proceeds ■ of the sales of which belong to the school fund, and it is ■expressly stipulated in the contract, that: “ When the ■testimony on all the swamp land in the county shall have been completed before said commissioners, then the clerk ■of this county court, under Ids seal, is to give to said par-dies of the first part a certificate of indebtedness, to the amount of what may have been proved up in accordance
We have failed to.find any statutory provision which authorizes a county court to issue certificates of county indebtedness, and, therefore, this certificate is not even prima facie evidence of the indebtedness it certifies.
The law relied upon by appellants, is not applicable to' this case. It is true that in a suit against one for debt, he cannot set-off a debt due to him as trustee. McDonald v. Harrison, 12 Mo. 447. But in this case, both the demand of the county against Hixon, and his against her, were in favor of, and against, the county as trustee of the school fund. All concurring, the judgment is affirmed.