Kennett v. Cole Cnty. Court

• Decision Date: 31 January 1850
• Citation: 13 Mo. 139
• Parties: KENNETT ET AL v. COLE COUNTY COURT.
• Court: Missouri Supreme Court

13 Mo. 139

KENNETT ET AL

v.COLE COUNTY COURT.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM COLE CIRCUIT COURT.

EDWARDS, for Appellants. By the 6th section of the act of Congress authorizing the people of Missouri Territory to form a State government sundry propositions were submitted by Congress to the people of said territory, in convention, for their acceptance or rejection. One of these propositions was, that section numbered 16 in every township, and when said section had been sold, or otherwise disposed of, other lands equivalent thereto, and as contiguous as might be, should be granted to said State for the use of the inhabitants of said township, for the use of schools. This proposition was accepted by the people in an ordinance reciting the identical language used in the act of Congress, subsequently adopted by the people. See Rev. Stat. 1845, p. 20, § 6--also, p. 23, Ordinance declaring the assent of the people to the propositions submitted by Congress.

The appropriation of the 16th section to school purposes was a matter of contract between Congress and the people of the State, and was conditional in its nature. Congress agreed to give and the people to receive the 16th section for school purposes; but there was coupled with this gift a qualification or reservation. This qualification or reservation was, that if the 16th section had not been sold or otherwise disposed of, then the inhabitants of the township were to have it for school purposes. If it had been disposed of, other lands were to be selected in lieu thereof for the use of schools. There are two contingencies under which the right of the inhabitants of a township to the 16th section may fail. The one is, where the 16th section was sold at the time the propositions of Congress were accepted by the people. The other, when said section had been otherwise than by sale disposed of at the ratification of said propositions. From this it is manifest, that neither Congress nor the members of the convention, considered the right of the inhabitants of the township absolute and paramount to all other titles thereto; but, on the contrary, admit that there may be better titles by providing a remedy for such cases.

Was this 16th section disposed of at the time the propositions submitted by Congress were accepted? If it was, then the inhabitants of that township had no right thereto. The County Court of Cole county had no right to sell the same. The purchaser acquired no title by virtue of a purchase at such sale. The bond given for the purchase-money was void for want of consideration and should be canceled and given up to the complainants; and the Circuit Court erred in refusing to decree according to the prayer of complainants. If the 16th section had not been sold, or otherwise disposed of, the judgment of the Circuit Court was right. Upon this point the case turns.

It is contended by the appellants, that the United States government had disposed of this 16th section before the acceptance of said propositions referred to, and that all her title was in Patterson under the act of Congress for the relief of the inhabitants of New Madrid. Patterson's certificate was issued on the 4th of December, 1816, was located on the 30th of January following. The claim was surveyed on the 12th of May, 1819 and a plat of the survey was forwarded to the general land-office on the 6th of January, 1820. Thus it will be seen that Patterson had performed every act which was required of him, or which he could perform to make his title good before the passage of the act of Congress submitting said proposition to the people of the then territory of Missouri for their acceptance or rejection and consequently before the acceptance thereof by the people. The land, then, had been disposed of, and inhabitants of the township had no title to the 16th section, and their remedy and their duty was to have selected other lands in lieu thereof. If there had been a doubt as to the correctness of this position, that doubt is removed by the issuing of the patent to Patterson. This patent was issued when all the facts and circumstances were fresh and well understood, and unless that patent was obtained through fraud, or under circumstances not warranted by law, it was conclusive. It is submitted that the validity of the patent cannot be called in question under a demurrer. Whether properly or improperly issued is a fact which should be tried upon a proper issue between the parties.

It is admitted that it has ever been the policy of the government to encourage common schools by donations of lands for that purpose; but this is not and should not be done by sacrificing the rights of private individuals.

All the acts of Congress reserving the 16th section from sale, for school purposes, make the reservation take effect after the survey of the land not before. It is a reservation from sale and not a donation or grant. There is no grant of the lands until the passage of the act of Congress above referred to. If it be necessary, to make the reservation good, that the lands...