Dunklin County v. Chouteau

Citation25 S.W. 553,120 Mo. 577
PartiesDUNKLIN COUNTY v. CHOUTEAU.
Decision Date05 March 1894
CourtUnited States State Supreme Court of Missouri

1. A county court subscribed for stock in a railroad company, to be paid for in swamp land, under the authority of Act Feb. 24, 1853, § 29, which provided that the county court subscribing to such stock "may," for information, cause an election to be held to ascertain the sense of the taxpayers; but no such election was held. Three months later, the county superintendent of public works applied to the supreme court for a writ of mandamus to compel the county court to vacate the subscription on the grounds that such appropriation of the swamp lands would not accomplish the purpose contemplated by the act of congress donating them to the state, was contrary to the wishes of the inhabitants of the county, and was without legal authority. The question whether a vote of the taxpayers was essential to a valid subscription was not, in terms, made in the pleadings, nor was it argued. The supreme court held that mandamus was not the proper remedy, but stated that, as it was a matter of public interest, it would determine all questions involved. Without referring to the necessity of a vote of the taxpayers, the court held the subscription valid. The governor then issued a patent to the railroad company, which conveyed the lands. Held, in an action by the county against a purchaser to set aside the patent, that the previous decision established that a vote of the taxpayers was not necessary.

2. The action was brought 33 years after the patent was issued, 32 years after the stock in the company was issued to the county, and 30 years after the stock was sold on execution against the county. Suits against the company to foreclose mortgages on the lands had been pending more than 12 years, defendant had invested large sums of money in and paid taxes on them, and compromises had been made between him and the county whereby 13,000 acres of the land were released to it. Held, that the delay and conduct of the county were a bar to the action, even if the subscription was invalid.

3. The fact that the patent, by mistake, recited a subsequent act relating to such lands as being the one under which such subscription was made, instead of Act Feb. 24, 1853, did not render it void.

Appeal from circuit court, Madison county; James D. Fox, Judge.

Action by the county of Dunklin against Charles P. Chouteau to set aside a patent of certain swamp lands issued to the Cairo & Fulton Railroad Company, to vacate orders of the county court on which such patent is based, and to vacate certain compromise deeds from the county to defendant. From a judgment for defendant, plaintiff appeals. Affirmed.

H. N. Phillips, C. P. Hawkins, Phillips & Walker, and Wm. Carter, for appellant. G. A. Madill and Lionberger & Shepley, for respondent.

BLACK, C. J.

The county of Dunklin brought this suit, in 1890, against Charles P. Chouteau, to set aside a patent professing to convey 100,000 acres of swamp lands to the Cairo & Fulton Railroad Company, to vacate two orders of the district county court upon which the patent is based, and to vacate three compromise deeds from the county to the defendant. There was also a count in ejectment. The trial court dismissed the bill, and the plaintiff appealed, so we are to consider the equity branch of the case only. The bill contains numerous charges of fraud, but there is no evidence to support any of these charges, and they need not be noticed.

The record discloses the following facts: The acts of March 3, 1851, and February 23, 1853, donated the swamp lands which the state acquired by the act of congress of September 28, 1850, to the counties in which the lands were situated, giving to the county courts power to reclaim the lands, and, to that end, to sell them in the manner pointed out in the act of 1851. Under these acts, Dunklin county acquired about 400,000 acres. The Cairo & Fulton Railroad Company was organized in January, 1854, under the general railroad law passed on the 24th February, 1853. Laws of 1853, p. 121. On the 1st March, 1855, the legislature passed an act (Laws 1855, p. 474) creating a district county court for the counties of Stoddard, Dunklin, and Butler, and providing that the court thus created "shall possess all the powers and perform all the duties that the respective county courts now possess, or may perform in said counties." This district county court is therefore to be deemed a county court. It may be stated here that it was abolished by the act of 10th January, 1857, as to the counties of Dunklin and Butler, and the county courts reinstated. An act was passed on the 7th December, 1855, (Local Laws 1855, p. 353,) enabling eight or nine counties — Dunklin being one of them — to transfer swamp lands to the Iron Mountain or Cairo & Fulton Railroad Company. It provides that "whenever a majority of the voters of either of said counties shall petition the county court of their county, it shall be lawful and is hereby made the duty of said county court to enter an order transferring" alternate portions of said lands to either of said companies; the order to be certified to the governor, who shall issue a patent to the company. This act also provides that the land shall not be transferred at a rate less than one dollar per acre, payable in stock of the company; the stock and accruing interest thereon to be used for the sole purpose of reclaiming swamp lands. On the 18th December, 1855, a petition signed by 24 persons representing themselves to be citizens of Dunklin county was presented to the district county court, asking that court to make a subscription to the stock of the Cairo & Fulton Railroad Company, and in payment therefor to transfer to the company swamp lands. On the same day that court made the following order: "On motion, and being fully satisfied that the same will conduce to the interest of the citizens generally of this county, it is now here ordered and directed by this court that the sum of one hundred thousand dollars be subscribed by the said county of Dunklin to the capital stock of the Cairo & Fulton Railroad Company of the said state of Missouri, and that George W. Mott be, and he is hereby, appointed to make such subscription in due and proper form; and it is further ordered that alternate sections of the swamp and overflowed lands owned by, and commencing on the northern boundary thereof, and extending thence southwardly, belonging to the said county of Dunklin, be sold, transferred, conveyed, and set over, by deed or deeds in due and proper form, at one dollar per acre, to an amount sufficient to meet and fully pay off said subscription upon the execution by the said company of a certificate or receipt therefor in proper form, through its duly-authorized agent, as in other cases of stock subscriptions where payment is made in advance, the same to bear interest at six per cent. per annum from the date of said transfer." Thereafter, and on the 18th March, 1856, the agents of the railroad company filed in that court their report of the lands selected. This report was approved by the court on the 21st of the same month. The order of approval also directed Mott to execute proper deeds to the company. As bearing on the validity of the order of 18th December, 1855, the evidence discloses these further facts: The 24 persons signing the petition did not constitute a majority of the voters of the county. It does not appear by any direct evidence whether a vote of the taxpayers was ever held or not, but the fair inference from all the evidence is that no such election was held. The courthouse of Dunklin county was destroyed by fire in 1872, and all the records of the county and circuit courts were consumed. The road was never projected or constructed so as to pass through Dunklin county or nearer than four miles. In two or three months after the date of the order directing Mott to execute deeds to the company, Nathaniel G. Murphy, superintendent of public works of Dunklin county, commenced a proceeding in the supreme court to compel the district county court to vacate the order of 18th March, 1855, but the supreme court refused a peremptory writ on final hearing. The details of that proceeding will be noticed hereafter. It does not appear that Mott ever executed a deed to the railroad company, but certified copies of the order of the district county court, and the approved report of the selection of the lands were filed in the office of the secretary of state on the 1st April, 1857; and on the 20th of that month the governor executed a patent, reciting therein the order of the district court of date the 21st March, 1856, and stating that the order was made pursuant to the act of 7th December, 1855, and conveying the 100,000 acres to the company. A certificate for 4,000 shares of stock was issued to the county by the company in July, 1858. On the 23d May, 1857, the Cairo & Fulton Railroad Company conveyed the larger portion of the lands thus acquired to trustees to secure a large number of bonds issued by the company to raise money to build the road. The company also made a supplemental deed of trust for the same purpose in 1858. The defendant held a large number of these bonds. Default having been made in the payment of them, he commenced a suit to foreclose the first deed of trust. This foreclosure suit was commenced in 1871, and he obtained a decree of foreclosure in 1882, and under that decree became the purchaser of 86,350 acres, and received a deed dated 2d November, 1882. The supplemental deed of trust was foreclosed at a later date, and under that decree he acquired another portion of the lands. It appears that Dunklin county sold to various persons some of the lands purchased by defendant. In view of this state of affairs, the...

To continue reading

Request your trial
45 cases
  • Flinn v. Gillen
    • United States
    • United States State Supreme Court of Missouri
    • 30 Julio 1928
    ...v. Powell, 22 Mo. 525; Lumber Company v. Craig, 248 Mo. 319; Hunter v. Pinnell, 193 Mo. 142; Palmer v. Jones, 188 Mo. 163; Doniphan County v. Chouteau, 120 Mo. 577; Pendleton v. Perkins, 49 Mo. 565; City v. Duuham Towing Co., 246 Ill. LINDSAY, C. The plaintiff, as assignee of a special tax ......
  • Boise City v. Wilkinson
    • United States
    • United States State Supreme Court of Idaho
    • 27 Marzo 1909
    ...... . APPEAL. from the District Court of the Third Judicial District, for. Ada County. Hon. Fremont Wood, Judge. . . Action. in ejectment to recover for the city a ...v. West , 68 Mo. 229.) The latter case is cited and approved to the same. effect in Dunklin County v. Chouteau , 120 Mo. 577,. 25 S.W. 553. (See, also, Hesse v. Strode , 10 Idaho. 250, 77 ......
  • Simpson v. Stoddard County
    • United States
    • United States State Supreme Court of Missouri
    • 20 Marzo 1903
    ...them reposes the security of property, and they are not to be tampered with to suit the views of different persons." Dunklin County v. Chouteau, 120 Mo. 578, 25 S. W. 553. But it may be asserted that in The Cape Girardeau S. W. Ry. Co. v. Hatton, 102 Mo., loc. cit. 55, 56, 14 S. W. 765, it ......
  • Stonum v. Davis, 37233.
    • United States
    • United States State Supreme Court of Missouri
    • 3 Abril 1941
    ...271 Mo. 178, 196 S.W. 25; Palmer v. Jones, 188 Mo. 163; Hunter v. Pinnell, 193 Mo. 142; Linville v. Bohanan, 60 Mo. 554; Dunklin County v. Chouteau, 120 Mo. 577; Prior v. Lambeth, 78 Mo. 538; Clarkson v. Buchanan, 53 Mo. 563; Scannell v. Ame., etc., Co., 161 Mo. 606, 61 S.W. 889. (8) Defend......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT