Sturgeon v. Hampton, 88 Mo. 203

Sturgeon v. Hampton

88 Mo. 203

Mo.

1885

Check Treatment

Lead Opinion

Black, J.

This is аn action of ejectment. Both parties claim title from Chariton county. The section of land in dispute is a part of the swamp lands of that county. The plaintiff’s title is as follows :

1. On tenth May, 1860, the county court of that county made an order directing the sheriff to sell on the same day twenty-two thousand and four hundred acres of swamp land to the Chariton & Randolph Railroad Company, in consideration that the company assumed to pay to the county for the school fund three thousand dollars annually forever. On the same day the court made another order, reciting a sale made by the sheriff and report thereof, all of which was approved. The clerk was directed to certify to the governor that the consideration had been discharged and that he issue patents to the company. The governor declined to issue any patents. On July 2, 1860, the court appointed Hammond a commissioner to make a deed to the company, which he did, including therein the land in question. This deed recited a consideration of three thousand dollars, payable annually forever, to the school fund.

2. On November 6, 1862, the court made an order discharging the company from the payment of the three thousand dollars annually, provided it would construct its road within one-half mile of Keytesville, and locate a depot at that place ; and on April 5, 1865, the court directed Cunningham, the presiding justice, to make a quit claim deed to the North Missouri Railroad Company for some thirteen thousand acres, that company having acquired a conveyance thereto from the Chariton & Randolph Railroad Company, which deed he made on the same day, reciting a consideration of one hundred dollars. This deed also includes the land in question.

3. On eighth of February, 1866, the court made an *210■order setting aside the order of sixth of November, 1862, ■ as to the location of the road and depot, and fixed upon ■ another location near Keytesville. This order 'then revertes the Hammond deed, an agreement of the Chariton ■& Randolph Railroad Company 'to sell the land to the -North Missouri Railroad Company, and in order to secure the same to that company and for the consideration of one thousand dollars of paid up stock in the west branch of the North Missouri Railroad Company, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and upon the condition that the branch road should be built and a depot located at the - place last designated, Holcombe is appointed a commissiоner to convey the land by quit claim deed to the North Missouri Railroad Company, which deed he made.

4. On eleventh of May, 1866, the court made another order accepting the one thousand dollars of paid up stock in the branch road as a full consideration to be paid by the North Missouri Railroad Company for these swamp lands, and discharged that company from the payment 6f any other or further sum, and directed its clerk to join with the company in the execution of deeds to purchasers ; and on December 9, 1867, the clerk and the company executed a deed to the land in question to plaintiff.

The branch road and depot were built at the designated place. Defendant purchased and' paid for the land in question under the provisions of law relating to sale of swamp land in 1880 and took possession thereunder. The act of congress of September 28,1850, vested the title to the swamp lands thereafter to be selected in the state, primarily for the purpose of reclaiming them. The trust, it is held, is a personal trust reposed in the state, and does not follow the land. 23 Mo. 456; 100 U. S. 61. So that we are here only concerned with the state statutes.

By the first section of the act of 1851, as amended and contained in Revised Statutes of 1855, the state donated *211these lands to the counties' in which they were situate, ‘4 for the purpose hereinafter designated. ’ ’ By subsequent sections thе county courts are authorized to have them •drained and reclaimed. An actual settler is given the right to pre-empt eighty acres and to pay for the same in two installments. The net proceeds of all the sales, after defraying the expenses of drainage, etc., are required to be paid into the county treasury and become а part of the school fund of the county. The amendatory act of 1857 (Acts 1857, p. 32) provides “that all lands in this state selected” under the act of congress, “be and the same are hereby declared to vest in full title and belong to the counties in which they may- lie.” This act was probably passed because of the fact that the lands were not selected and designated until long after the passage ■of the act of 1851. However that may be, there is nothing in the act which enlarges the powers of the county ■courts over,them. The counties still held them for the uses and with power of disposition under the then existing laws. The lands are not the general property of the counties. It was so held in State ex rel. Robbins v. New Madrid County Court, 51 Mo. 84. Other sections •of the swamp land law (R. S. 1855, 1006) having a more direct bearing upon the questions involved in this case .are as follows:

“Section 3. Whenever in the judgment of said ■county courts it shall be to the interest of said counties so to do, they shall order the sheriff to sell the same, in such quantities at such times, and places, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and ■on such terms as they may think proper, with or without draining and reclaiming the same, as in their discretion they may think most conducive to the interests of their respective counties.

‘4 Section 4. Whenever full payment shall be made for any of said lands by the purchasers thereof, 'the county courts shall cause the same to be certified to the *212governor, who shall thereupon grant to the purchasеr, his heirs and assigns, a patent for the same,” etc.

Prom these provisions of the law it is clear no deed or patent could be made until full payment of the consideration. The counties by force of these provisions held the title as a security for the payment of the purchase money. The patents were to be issued by the governor. The Hammond deed, made in 1860 was, therefore,, made in plain violation of the law, for the consideration had not only not been paid, but no part of it was yet due.. Besides this, the court had no power to appoint Hammond a commissioner, and-'when appointed he had no authority to make the deed. Reliance for authority so to do is placed upon section 2, page 502, Revised Statutes, 1855. That section does give to the county courts authority to appoint a commissioner to sell real estate belonging to the counties, and to execute deeds, but it has no application to the sale of these swamp lands. It relates • to the general property of the counties. The swamp land laws provide when and how title thereto is to be made, and those statutes are exclusive, and the method there pointed out must be pursued. The special act of March 15, 1861, (Acts 1860-1, 394) gave to the county clerk of Chariton county power to make deeds to purchasers of the swamp lands, but that act, like the general law, gave him' such power only “when the purchase money shall be fully paid off and satisfied, or the terms of the contract complied with.” The terms of the sale, that is, three thous- and dollars, payable annually forever, are certainly unusual, in view of the fact that no legal title could be made until full payment of the purchase price; still trеating the terms of the sale as coming within the lawr, we do not see by what authority the county courts Could release the railroad company from the payment of the consideration. The act of February 8, 1861 (Acts of 1860-1, 40) gave the county courts authority to cancel *213contracts with persons for the purchase of these lands when such persons had become unable to pay the purchase price, but in such cases the land was to be re-sold under the provisions of the swamp land laws. That the county court had no power to trade the obligation of the company to pay three thousand dollars annually to the school fund, for the agreement of the company to build its road and locate a depot near Keytesville, is too clear to call for argument. The Cunningham deed, as an independent transaction, had no sheriff’s sale to support it, and so far as the orders of the coiihty courts go, there was no consideration whatever paid for the thirteen thousand acres. As a deed, to confirm the Hammond deed, it was subject to the same infirmities. The Holcombe ■deed and the deed of the county clerk were designed to ratify the prior transaction by putting in a consideration •of one thousand dollars paid up stock in the branch road. While authority was given by section thirty-three, page 429, Revised Statutes, 1855, to counties to sell their swamp lands to pay subscriptions for stock in railroad companies, and the Chariton & Randolph Railroad Company had authority to receive land at an agreed valuation, in payment for its •capital stock (Acts 1859-60, 208), still it is agreed by this record that the county never subscribed for stock in •either of these companies. By a special act (Acts of 1858-9, 320) Charitоn county could not make such a subscription without a majority vote of the taxpayers. No such vote was taken under that act or the general law.

1. The county courts are not the general agents of the counties or of the state. Their powers are limited and defined by law. These statutes constitute their warrant of attorney. Whenever they step outside of and "beyond this statutory authority their acts are void. Saline County v. Wilson, 61 Mo. 237 ; Wolcott v. Lawrence County, 26 Mo. 275 ; Steines v. Franklin County, 48 Mo. 167. Persons dealing with such agents are bound to *214take notice of their powers and authority. State v. Bank, 45 Mo. 538; Andrew County v. Craig, 32 Mo. 531. We should go far to uphold their acts when merely irregular, but in this case the right to a deed for these lands must stand upon the order of the county court discharging the company from the payment of the agreed cofnpensation to the school fund, and the consideration of one thousand dollars ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍paid up stock. Both these acts were not simply irregularities, but they were without any warrant or authority in law and are void. These infirmities-appear upon the face of the. deeds and orders to which they make reference, and the purchaser from the company took with full notice.

2. Nor is the county estoppеd from disputing the validity of these deeds. These quasi public corporations are not estopped by the illegal and void acts of their limited statutory agents. The record shows that the land in question was assessed for taxes for the years 1870 to 1879, both inclusive. The taxes for 1870 were paid by plaintiffs, for the other years the taxes have not been paid. These facts do not constitute an estoppel. City of St. Louis v. Gorman, 29 Mo. 593.

3. These deeds must stand or fall upon the act o f the legislature, approved March 26, 1868 (Laws, 67) entitled “ An act to perfect the titles t-o lands known as swamplands,” which is as follows: “That all deeds or patents granted or made by the county courts of the state in which any of the lands known as swamp or оverflowed lands may lie, shall be deemed and held to be ralid and legal, whether issued by the county court or a commissioner appointed by said court for the purpose ; and such deed or patent shall vest in the purchaser of any such lands, all right, title or interest of said counties in said lands as fully as if said patents or deeds had been granted by the governor of the state, and countersigned by the secretary of state, as is now provided by general statutes ; and the fnnds arising from such sale shall con*215stitute a part of the school fund of the respective counties,, as is now provided by law.”

This act was before the court for consideration in Barton Bounty v. Walser, 37 Mo. 189. Then there were irregularities in the sales, and the deeds, certainly some of them were not executed by the proper officers. That the lands had been sold for fair prices, the terms of the sales complied with, and the purchase money paid into, the county treasury, were uncontroverted facts. It was then held that the state had not divested itself 'of all control over the swamp lands ; that the counties did not stand in the attitude of individuals, and that these lаnds were held by them in subordination to the legislative will, and that the act was not within the constitutional prohibition against retrospective legislation. As to the act it is also said: “It takes no property from the county, but says that the title to the land, which was sold and paid for under previous laws, shall vest in the purchasers. If there was any fraud or other infirmity attending the sаle which would render it void, those questions are still open and not touched by this decision.” We adhere to what is there decided. It was the purpose of this curative act to make valid those deeds executed by officers having no authority so to do, and to give them the force and effect of patents regularly issued by the governor. It was not thе purpose of the act to make valid those sales made in violation of law and for purposes not contemplated by any statute. It contemplates sales from which funds may arise, for they are to constitute a part of the school fund. In short, it does not make valid a void sale, or make valid a deed when the purchaser is not еntitled to one.

There never was a time in the history of these transactions when a deed could have been made to the railroad companies, or either of them, under any existing law.. It follows from what has been said that the ;judg*216inent should be affirmed. It is so ordered.

Sherwood, J., and Henry, C. J., dissent. The other judges concur.

Dissenting Opinion

Henry, C. J.,

Dissenting; — The act of congress of 1850 was a grant of the title of the swamp lаnds to the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍state, “subject to identification of the specific parcels coming within the description.” Martin v. Marks, 97 U. S. 347; Stephenson v. Stephenson, 71 Mo. 127. While the grant was made to the state, with a view to the drainage and reclamation of the swamp lands, no trust was ‘£ fastened upon the lands, but a personal trust in the public faith of the state” was reposed. Duklin County v. Dunklin County Court, 23 Mo. 456 ; Emigrant Co. v. Adams County, 100 U. S. 61. By the act of February 3, 1851, the state grantеd these lands to the several counties in which they were situate. That act toas ah honest attempt on the part of the general assembly to effectuate the purpose for which the lands were donated to the state. Throughout its provisions the main purpose of reclamation and draining of the lands is prominent. By the act of 1855, howеver, the several county courts were authorized “to sell and dispose of swamp and overflowed lands within their respective counties, whether with or without draining, or reclaiming the same, as in their discretion they may think most conducive to the interests of said county.” This enlarged the power of the county courts over the swamp lands.

It might still have been contеnded, however, that, even under that act, the county court could sell them only for the purpose, and on the terms mentioned in the previous swamp land acts; but in 1857 the legislature passed an act, declaring, “That all lands in the state, selected under and by virtue of the act of congress of September 28, 1850, entitled, etc., be and the same are hereby declared to vest in full title, and to lye-long to the counties in which they lie”; and by the gen*217eral law then in force (sec. 2, p. 502 R. S. 1855), the county court was authorized to appoint a commissioner to sell and dispose of any real ¿state belonging to the county, and execute a deed, etc. This act was still in force when the Hammond and Holcombe deeds were executed. That it was within the power of the legislature to grant these lands to the county in fee-simple, stripped of all trusts, has been expressly held by the Supreme Court of the United States, in Mills Co. v. Railroad Companies, 107 U. S. 565, and, if the act of 1857 did not vest the title of these lands in the county of Chariton, it would be difficult to find language that would accomplish that object. If the act had that effect, it ends this controversy, for the county сould sell the lands by a 'commissioner, under- the general law. Sec. 2, p. 502, R. S. 1855. That the county court had no authority to release the. railroad company from the consideration it agreed to pay for the lands, three thousand dollars annually forever, does not affect the question of title. The title passed by the commissioner’s deed, and, if the сounty ■court had no authority to release the railroad company from its obligation, that obligation rests upon the company still. Nor does it matter that the contract between the county court and the railroad companies was fraudulent and corrupt. That cannot affect the title of an innocent purchaser, ■ and ho - fraud is аlleged in defendant’s answer.

The following propositions are conceded: First, the act of congress of 1850 operated as a grant of the lands to the state, upon their selection, and did not impose a trust upon the land. Second, the state could, if it saw proper, grant the lands to 'the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍counties in which they lie, or to an individual, divested of all trusts ; and the only question remaining, about which there is, or can be any controversy, is, ■ did the act of 1857 so grant the lands to the counties in which they were situate % Satisfied that the answer to the last question must be af*218firmative, that the language of the act of 1857 is emphatic, unambiguous, and clearly passed the title to the land in controversy to Chariton county, to be held in fee-simple absolute, the same as if an individual instead of the county had been named therein as grantee, I cannot concur in the foregoing opinion.

Judge Sherwood concurs with me.