Glasgow v. Peter Lindell's Heirs

• Decision Date: 31 March 1872
• Citation: 50 Mo. 60
• Parties: WILLIAM GLASGOW et al., Appellants, v. PETER LINDELL'S HEIRS, Respondents.
• Court: Missouri Supreme Court

50 Mo. 60

WILLIAM GLASGOW et al., Appellants,

v.PETER LINDELL'S HEIRS, Respondents.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Glover & Shepley, and Hamilton, for appellants.

I. It has long been settled that the act of Congress of March 6, 1820, and the ordinance of July 19, 1820, operated as a direct grant by Congress to the State, and vested in the State a complete title to section sixteen, for township schools, as soon as surveyed, unless the title had previously passed out of the United States. (Payne et al. v. St. Louis County, 8 Mo. 476; Kennett v. Cole County, 13 Mo. 139; State v. Dent, 18 Mo. 313; State v. Ham, 19 Mo. 592.)

II. The validity of the act of the Legislature of March 3, 1851, was somewhat questioned in the court below, but it is expressly decided in Payne et al. v. St. Louis County, supra, that the Legislature of the State have the power to provide for leasing and selling the school lands and applying the proceeds to the object of the grant; that such legislation amounts to no breach of trust; and see Maupin v. Parker, 3 Mo. 310.

III. The object of the act, and the powers expressly conferred upon these commissioners, render it perfectly clear that it was intended that all suits for the recovery of the possession of the property should be brought in the names of the commissioners. These commissioners are made the statutory agents of the law for this very purpose among others, and, as such, are armed with all the powers of the State which may be necessary for the discharge of the duties enjoined upon them, that enables them thus to sue. While a private agent may sue only in the name of his principal, yet where a statute authorizes an agent to sue he may do so in his own name. Whenever a statute gives a right or imposes a duty, it also confers by implication the power necessary to make the right available or to discharge the duty. Jackson v. Reynolds, 14 Johns. 335, illustrates this distinction between a public and a private agency. In Overseers v. Overseers, 18 Johns. 418, the court lays down the general principle for which we are contending, in this language: “There can be no doubt that when a public office is instituted by the Legislature, an implied authority is conferred on the officer to bring all suits as are incident to his office, which the proper and faithful discharge of the duties of his office requires.” To the same effect are: Inhabitants, etc., v. Wood, 13 Mass. 198; Todd v. Birdsall, 1 Cow. 260, and notes; Grant v. Faucher, 5 Cow. 311; Supervisor v. Stimson, 4 Hill, 136; Page v. Fazackerly, 36 Barb. 395, and cases cited by the court; Trustees of Schools v. Tatman, 13 Ill. 29; Carruthers v. Bailey, 3 Kelly, 105, and Rogers v. White, 1 Sneed, 72. The right of these commissioners to sue in their own names is now for the first time questioned, although this litigation has been pending for nearly twenty years.

IV. The act of 1851 (Sess. Acts 1851, p. 706) was not repealed by that of January 31, 1865 (Sess. Acts 1865, pp. 337-9). It was shown on the trial that the county of St. Louis had other lands besides this section sixteen. There can be no difficulty in so reconciling these two statutes that they may stand together. Repeal by implication is not favored. (Brown v. Crawford County, 8 Mo. 642; City of St. Louis v. Alexander, 23 Mo. 501; Sedgw. Stat. and Const. Law. 127.)

V. Sanguinet was the only witness produced in reference to the cultivation of the land in controversy prior to 1803. He could not say anything of any particular lot as cultivated by any particular person. He knew nothing of the lines of the sixteenth section. Defendants say that the ground in dispute was cultivated by somebody, but by whom they do not prove, and therefore there was a confirmation to somebody--to some of the inhabitants en masse--and, consequently, that the plaintiffs cannot recover. But there can be no confirmation en masse of common-field lots. (See Act of June 13, 1812.) The law has long been settled that some particular person must have cultivated some particular lot, with ascertainable limits, prior to December 20, 1803, and was claiming the same at the passage of the act of June 13, 1812, or there was no confirmation. (Page v. Schibel, 11 Mo. 183; Papin v. Hines, 23 Mo. 277.) A confirmation to a tract of land by metes and bounds which cannot be identified by evidence is like a confirmation without any metes and bounds; therefore such a confirmation is not a title to any land. It will be found on examination of the recorder's proofs and certificates of the Bouis and Baccanne tracts, that there is no such description of metes and bounds as, under the evidence in the case, will locate either of them. As to the Bizet arpent the case is equally plain. There is no proof of any cultivation prior to December 2, 1803, by any witness at the trial. There is no proof under the act of Congress of 1824. There is only a confirmation of July 4, 1836. As to the necessity of a definite location under the act of 1812, in order to pass title by confirmation, see United States v. Delespine, 15 Pet. 319; United States v. Lawton, 5 How. 28; Watts v. Lindsey's Heirs, 7 Wheat. 159; Littlepage v. Fowler, 11 Wheat. 216; Lecompte v. United States, 11 How. 115; Bissell v. Penrose, 8 How. 317; Stanford v. Taylor, 18 How. 411; Menard's Heirs v. Massey, 8 How. 293; Guitard v. Stoddard, 16 How. 512; West v. Cochran, 17 How. 403; Ledoux v. Black, 18 How. 473; Carondelet v. St. Louis, 1 Black, 189.

VI. There is no defense by limitation to this suit. Our title was in the State till 1851. This suit was brought in 1853. No limitation runs against the State. (7 Mo. 194; 19 Mo. 607.)

VII. To vest title in village schools the surveyor-general is, under the acts of Congress, to survey the lot and assign it to the schools. There are many decisions on school titles. Not one was ever rendered that any title passed without a designation of the particular lot claimed by the schools, or without any assignment made out and delivered by the surveyor-general. (Kissell v. Schools, 18 How. 19.) And the plainest answer to the pretense of outstanding title in the school is that no assignment has been made by the surveyor-general to the schools. (Papin v. Ryan & Walker, 32 Mo. 21.)

B. A. Hill, for respondents.

I. This act of 1851 makes the commissioners attorneys in fact for the County Court, and gives them no further authority than that of mere agents to act under the direction and approval of the County Court; and the County Court has been for many years general attorney in fact for the State in regard to school lands. (See R. C. 1825, '35, '45 and '55.) The act of 1851 does not vest any title in the plaintiffs, nor authorize them to sue in their own names; nor could it do so, for the State is a naked trustee, and the County Court is the attorney in fact for the State in regard to the school lands, while the inhabitants of the township are the beneficial owners. The State could not authorize the County Court to appoint commissioners to sell the school lands in any township without the consent of the inhabitants, who were the beneficial owners; but if power of sale could be delegated by the State without the consent of the inhabitants of the township, the legal title must still be in the State, and the beneficial ownership in the inhabitants. But the Legislature nowhere attempts to delegate the trust confided to the State by Congress, even by implication, but manifestly appoints the County Court as the most appropriate agent for the faithful execution of such trust.

“The only proper plaintiff in an action for the recovery of real estate is the party holding the legal title, although such party may be only the trustee of an express trust.” (Boardman v. Beckwith, 18 Iowa, 292; Winters v. Rush, 34 Cal. 126; Weaver v. Wabash Canal, 28 Ind. 115; Balcombe v. Northrup, 9 Minn. 172; Tyler Eject. 52; Tiff. & Bull. Trust. 811; Gardner v. Armstrong, 31 Mo. 535; Fenn v. Holme, 21 How. 481; Smith v. McCann, 24 Mo. 398; Governor v. Ball, 1 Hemp. 541; State v. Bradish, 34 Verm. 419; State, to use, etc., v. Fleming, 19 Mo. 608; Stevens v. Brown, 32 Mo. 176.) This legal title has never passed, and the State holds it now, if any exists, under the grant for schools. The commissioners are not the real parties in interest, nor are they trustees of an express trust within the meaning of the statute, because, even if the State had the power to transfer its trusts, there are no words or intention expressed to do so, and such trust cannot be created except by an express agreement or express words to that effect. (Robbins v. Dwerill, 20 Wis. 148; Lewando v. Dunham, 1 Hill, 114.) “A mere agent or attorney in fact is not a trustee of an express trust and cannot sue in his own name.” (Rawling v. Fuller, 31 Ind. 255.) “One who is described in an instrument as the attorney in fact of another, does not hold the character of a trustee.” (Powell v. Ross, 4 Cal. 197.)

This suit ought to have been brought in the name of the State of Missouri, to the use of the inhabitants of township 45. Being brought in the name of the commissioners, who have no interest, title or estate whatever, legal or equitable, in the land sued for, the suit should be dismissed.

II. The legal title to the land is in the owners of the common-field lots, which cover all the land sued for. No title ever passed to the State of Missouri for any of the lands sued for, if they were otherwise disposed of by any law of Congress, or act of the government or its officers, prior to 1820. (See Bissell v. Penrose, 8 How. 317; Wilcox v. Jackson, 13 Pet. 498) A title to land becomes a legal title when a claim is confirmed by Congress. Such confirmation is a higher evidence of title than a patent, because it is a direct grant of the fee which had been previously in the United States. (See 16 How. 494; 1 Black, 590; 2 How. 319, and case cited in opinion.) The land sued for by plaintiff...