State v. Crumb

• Decision Date: 15 May 1900
• Citation: 157 Mo. 545,57 S.W. 1030
• Parties: STATE, to Use of PUBLIC SCHOOLS, v. CRUMB et al.
• Court: Missouri Supreme Court

57 S.W. 1030

157 Mo. 545

STATE, to Use of PUBLIC SCHOOLS, v. CRUMB et al.

Supreme Court of Missouri, Division No. 1.

May 15, 1900.

PUBLIC LANDS — SCHOOL FUND — SWAMP AND OVERFLOWED LANDS — SALE BY COUNTY — STATE BOARD OF EDUCATION — EMPLOYMENT OF ATTORNEY — PROCEEDINGS OF BOARD — PRESUMPTIONS — WARRANT OF ATTORNEY — ILLEGAL SALES — PROCEEDS — JUDGMENT AGAINST COUNTY — APPEAL AND ERROR — COUNTY COURT — POWERS — LIMITATIONS.

1. Acts 1868, p. 68. § 1, conveys the swamp and overflowed lands of the state to the counties for the purposes named in the act. Section 2 provides that such counties shall reclaim such lands; and section 3 authorizes the county court to direct the sheriff to sell such lands, on 60 days' notice, for not less than $1.25 per acre; and section 8 declares that the net proceeds of such lands shall be paid into the county treasury as a part of the county school fund. Acts 1869, p. 67, § 6, authorizes the county court to issue patents and sell such lands. Held, that the act of 1868 conferred title on the county merely as trustee for the county school fund, and that such trust was not abrogated by the act of 1869; and hence such lands could not be sold under a judgment against the county, nor could the county court grant the same by patent for a sum less than $1.25 per acre, or receive general county warrants in payment therefor.

2. Acts 1868, p. 68, §§ 1-8, grant the swamp and overflowed lands of the state to the counties, to be reclaimed, and sold for the benefit of the county school fund. Rev. St. 1889, § 8040, provides that, if the state board of education shall ascertain that any county is using the swamp or other school lands for a purpose other than that named in the grant, it shall institute suits to recover the same in the name of the state in behalf of the public schools of the county, and section 8042 authorizes such board to employ an attorney to prosecute such suits. Held, that the board was authorized to sue in the name of the state, for the benefit of the public schools of the county, to set aside a void sheriff's deed and an illegal patent of such lands issued by the county court, and to employ an attorney for that purpose.

3. Rev. St. 1889, § 8040, provides that, if the state board of education shall ascertain that the swamp or other school lands of the state are being used by any county for a purpose not authorized by the grant, such board shall bring suits to recover the same in the name of the state, for the benefit of the public schools of the county in which such lands lie. Section 8042 provides that the board may employ an attorney to prosecute such actions. Section 2094 provides that an attorney may appear in any action without a warrant of attorney, except as may be provided by law. Held that, in an action brought under section 8040, the court would presume that such board had ascertained the necessity of bringing such suit, and that it had appointed an attorney, in the absence of a showing to the contrary, and such attorney would not be required to produce a warrant of attorney, or prove his employment.

4. Where, in an action by the board of education to set aside a void sheriff's deed, and an illegal patent to public school lands issued by the county court, it appeared that such county, which was a party to the suit, had received a large sum of money for such land, which had gone into its general fund, it was error to render judgment for defendant county, though such deed and patent could not be set aside, as plaintiff was entitled to a judgment for the money so received by the county.

5. Where, on the face of a judgment against a county, it appeared to have been rendered for general county indebtedness, it would be treated as a general judgment on appeal, though an order of the county court relating to a compromise thereof recites that such judgment was based on warrants on the swampland fund of the county, a copy of which order is attached to the petition, but which was not offered in evidence.

6. Under Acts 1868, p. 68, §§ 1-8, granting the swamp and overflowed lands of the state to the counties, and directing the county court to reclaim and sell the same for the benefit of the public school fund of the county; and under Acts 1869, p. 67, § 6, authorizing such court to issue patents therefor, — such county court is not the general agent of the county, but a special agent, vested with the powers prescribed therein; and one who dealt with such court in compromising a judgment against the county, and in receiving a patent for such swamp lands as an incident thereto, was chargeable with notice of the extent of such court's power.

7. Under Rev. St. 1889, § 6772, providing that the statute of limitations shall not run against any grant for educational purposes, the right of the public school fund of a county to swamp lands was not barred, where the county court had granted the same by an illegal patent in 1869.

Appeal from circuit court, Stoddard county; John G. Wear, Judge.

Suit by the state, on behalf of and to the use of the public schools of Stoddard county, against D. Starks Crumb and others, to remove a cloud on title to public school lands. From a judgment in favor of defendants, plaintiff appeals. Reversed.

This is a proceeding in equity to remove a cloud upon the title to 80,172 acres of land in Stoddard county, being a part of the land granted to the state of Missouri by the United States by the act of congress of September 28, 1850, relating to swamp and overflowed land, and thereafter by various acts of the general assembly of Missouri conveyed by the state to Stoddard county, to be held by it for reclamation, drainage, and sale, and the net proceeds to go to the public-school fund of the county.

The controversy arises in this wise: On the 13th of March, 1868, Louis M. Ringer obtained a general judgment against Stoddard county for $1,136.90, and in August following caused an execution to be issued and levied upon 107,000 acres of the swamp and overflowed lands conveyed by the state to Stoddard county for the purposes above stated, had the land sold under the execution on September 16, 1868, and purchased at that sale 80,172 acres thereof for $663.95, other persons purchasing the remainder thereof. Afterwards, on the 28th day of April, 1869, Ringer conveyed the land in controversy, so purchased by him, to the defendant D. Starks Crumb by a quitclaim deed. At the February term, 1869, the county court of Stoddard county employed attorneys to have the sale of the land aforesaid set aside, and agreed to give them 50,000 acres of the land if they succeeded. Exhibit C, attached to the petition, shows that at a special term, in April, 1869, the county court entered of record an order which recited the obtaining of the Ringer judgment against the county "upon warrants on the swamp-land fund of said county"; the execution thereon; the sale thereunder to Ringer and others; the employment of attorneys to have the sale set aside; the fact that the suit would continue for years, and the result be uncertain; and that "it is therefore considered by the court that a compromise of the same would be for the benefit of said county of Stoddard, if made with the parties who bought said lands at said sale" (Ringer and others); "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 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 1st day of January, A. D. 1870, and the remaining half on the 1st day of January, A. D. 1871." The order then proceeds in the shape of a judgment directing letters patent to be issued to the purchasers conveying all the right, title, interest, and claim of the county in and to the lands sold under such execution, and appoints a commissioner to execute and deliver the patents upon the purchasers producing the treasurer's receipt for the $13,500. The commissioner issued patents accordingly, on the 1st day of May, 1869, reciting that the patentee had "made full payment to the said county of Stoddard." Thereafter Crumb conveyed the whole, or a part, it is not clear which, to John S. Farlow, and Farlow conveyed the whole, or a part, it is not altogether clear which, to Himmelberger. Upon demand of the citizens of the county and of the attorney of the state board of education in the Fourteenth congressional district, the county court refused to bring suit to set aside the deed and patents, and thereupon this suit was begun to the March term, 1886, of the Stoddard circuit court. The petition sets out the above facts, and alleges the sale by the sheriff to be null and void; that the compromise was fraudulent, and the result of a conspiracy, and so known to be by all the defendants; that Himmelberger claims to own the land, and is in possession thereof; and asks a cancellation of the sheriff's deed and of the patents from the county.

The answer of Crumb denies the legal capacity of the plaintiff and relator to sue, and also the right of the attorneys to represent the plaintiff and relator; denies that the plaintiff and relator are the real parties in interest, and avers that Stoddard county is the only real party in interest; sets up that, under the several acts of the general assembly, all swamp and overflowed lands were donated by the state to the county in fee simple absolute, with full power and authority in the county to sell and dispose of the same as it might think proper, either with or without draining or reclaiming the same, as in its discretion it might think most conducive to the interests of the county, and that under that power the county disposed of these lands, "as alleged in plaintiff's petition"; avers...