Bump v. Butler County

• Decision Date: 15 March 1899
• Docket Number: 3,844.
• Citation: 93 F. 290
• Parties: BUMP v. BUTLER COUNTY et al.
• Court: U.S. District Court — Eastern District of Missouri

93 F. 290

BUMP v. BUTLER COUNTY et al.

No. 3,844.

United States Circuit Court, E.D. Missouri, Eastern Division.

March 15, 1899

M. W Huff and John F. Shepley, for complainant.

M. L Clardy and Wood & Douglas, for defendants.

ADAMS District Judge.

This is a suit in equity to annul certain conveyances of swamp lands in Butler county, as clouds upon complainant's title. The complainant claims title through the following legislative acts and conveyances: That is to say, the act of congress of September 28, 1850, authorizing the conveyance of certain lands, known as 'swamp or overflowed lands,' to the state of Missouri; the acts of the general assembly of the state of Missouri approved March 3, 1851, and February 23, 1853, donating to Butler county such of said swamp lands as were located within its confines; the act of the general assembly of Missouri of February 24, 1853, authorizing the formation of railroad associations, and subscriptions to the capital stock of such associations by counties; the orders of the county court of Butler county of dates October 24, 1854 and December 6, 1855, making two subscriptions, each for $50,000, to the capital stock of the Cairo & Fulton Railroad Company, and providing for the payment of such subscriptions by the conveyance to said railroad company of swamp lands at $1 per acre; the selection of such lands; the conveyance thereof to the railroad company by a patent executed by the governor of the state of Missouri, of date April 20, 1857; the mortgage executed by the railroad company, of date May 23, 1857, conveying said lands to Moore, Wilson, and Waterman, trustees, to secure the payment of an issue of 1,600 bonds of the railroad company, each for the sum of $1,000; the foreclosure of said mortgage by a decree of the supreme court of Missouri rendered on the . . . day of . . ., 1879, in the proceedings instituted by Charles P. Chouteau against the Cairo & Fulton Railroad Company et al.; the sale of the lands on October 30, 1882, by a deed executed by the special commissioner appointed by the supreme court of Missouri, to Charles P. Chouteau, from whom the complainant, by mesne conveyance, claims to have acquired title. The defendants admit complainant's chain of title as already set forth, but assail some of the proceedings involved in it, and especially the validity of the subscriptions made by the county court of Butler county to the stock of the railroad company. They contend that these subscriptions were without authority of law, in that there was no vote of the taxpayers of the county, as required by section 29 of the act of February 24, 1853, authorizing such subscriptions, and that the subsequent selection of lands, and conveyances thereof to the railroad company, and its mortgage thereof to secure its issue of bonds, were each and all illegal and void acts. The proof shows that a suit was instituted in the circuit court of Butler county on the 12th day of June, 1866, by Butler county against the Cairo & Fulton Railroad Company and Moore, Wilson, and Waterman, trustees named in the mortgage, to cancel and set aside the patent to the railroad company, and its mortgage of May 23, 1857, to Moore, Wilson, and Waterman, trustees, because of fraud and illegality in the proceedings involved in securing the same, and that such proceedings were had as resulted on the 2d day of July, 1869, in a final decree annulling said patent and mortgage, and vesting the title to the lands described in the mortgage in Butler county. The proof further shows that the county thereafter, by three separate conveyances called 'patents,' dated, respectively, January 31, 1871, and December 10 and December 21, 1874, conveyed a part of the lands included in said mortgage so annulled by the decree of 1869 to the defendant the St. Louis, Iron Mountain & Southern Railway Company. (I do not now, and will not hereafter, undertake to distinguish between the two names of this corporation,-- the railroad company and its successor, the railway company.) It is these conveyances, and others of like character, which the complainant seeks to have set aside as clouds upon his title.

As already stated, complainant claims a title of record from Butler county, by and through its subscriptions to the capital stock of the Cairo & Fulton Railroad Company, its conveyance of the lands in question to the last-named railroad company to secure its bonds, the foreclosure of the mortgage, and purchase thereunder by his grantor, Mr. Chouteau.

The foundation of complainant's title is assailed at the outset by the defendants. It is conceded in the argument of this case that the subscriptions to the capital stock of the Cairo & Fulton Railroad Company were made by the county court of Butler county without the assent of the taxpayers of the county, secured at an election held for that purpose. It is contended that under the provisions of section 29 of the act of February 24, 1853, such a vote was a condition precedent to the right to make the subscription in question. On the other hand, the complainant contends that such is not the true construction of said section 29, and claims further that by the provisions of the act of December 10, 1855, entitled 'An act to secure the completion of certain railroads in the state,' the county court of Butler county had the right to subscribe its overflowed or swamp lands as stock to any railroad passing through the county, upon such terms, and to be valued at such prices, as may be agreed upon by the county court and the directors of the railroad company in which stock was taken, and that this act was in force at the time the patents were made to the railroad company, and was ample authority for the conveyance, without the consent of the taxpayers.

The able arguments of counsel, the several decisions of the supreme court of Missouri, and divers acts of the general assembly bearing upon the necessity for a preliminary election, would command critical consideration, if the question involved were an open one to this court; but, in my opinion, the decree of July 2, 1869, in the case of Butler county et al. against the Cairo & Fulton Railroad Company et al., concludes the complainant on this question. That suit was instituted by Butler county against the railroad company and the trustees of the bondholders for the purpose of annulling the county's subscriptions to the capital stock of the railroad company, and for the purpose of setting aside the patent of April 20, 1857, from the governor of Missouri to the railroad company, and the mortgage, of date May 23, 1857, from the railroad company to the trustees for the bondholders,-- Moore, Wilson, and Waterman. The ground of complaint was that the title to the lands involved was procured from the county fraudulently and without warrant of law, and that, among other things, there was no consent of the taxpayers thereto. The suit, after pending three years or more, came on for a hearing upon the merits; and a final decree was rendered as prayed for by the county, setting aside and annulling the title of the railroad company and the trustees for the bondholders. This decree, if valid, is binding upon the parties to that case, and all others in privity with them,-- including, of course, any subsequent purchasers under the annulled mortgage.

I am unable to agree with counsel for complainant that said decree was void for want of necessary parties. The suit was instituted in June, 1866. John Moore, John Wilson, and Albert G. Waterman, the trustees named in the mortgage of 1857, which was duly recorded in the recorder's office of Butler county, were named as defendants in the case; and being nonresidents at the time of the execution of the mortgage to them on May 23, 1857, and supposed to be so in 1866, an order of publication was secured and duly executed against them as such nonresidents, requiring them to appear at the September term of said court and answer the petition of the plaintiff. But it now appears that Waterman died in February, 1862, and that Moore died on September 23, 1866, before the order of publication was returnable. Wilson alone survived. Notwithstanding the death of Waterman and Moore, counsel entered appearance and filed pleadings for all the defendants. The case took the usual course, and was tried, and the decree was entered in July, 1869, with no knowledge on the part of Butler county of the death of the two trustees, or of any irregularity in the proceedings. By the provisions of the mortgage of 1857, the land therein described was conveyed to John Moore, John Wilson, and Albert G. Waterman, and 'to the survivor and survivors, successor and successors, of them, forever, as joint tenants, and not tenants in common, for the uses and purposes set forth. ' The mortgage also provided:

'That, for the purpose of continuing and securing the due execution of the trusts hereby created, it is declared that all vacancies that may occur in the office of trustee, by death, resignation, or otherwise, shall be filled thus: The first vacancy shall be filled by a majority of the members of the board of trustees as constituted, being in office at the time such vacancy shall take place; the next vacancy shall be filled by the said party of the first part (which is the Cairo & Fulton Railroad Company); and so on alternately, until the end. And trustees so appointed shall fill the terms and succeed to and perform all the duties, and have all the powers, hereby conferred upon the members of the board of trustees herein named or provided for.'

It appears that an attempt was made, pursuant to the provisions of the mortgage, to appoint a successor to Waterman, who died in 1862. One Mason Brayman had, before then, pursuant to the provisions of the original...