Lemoine v. Dunklin County, 38.

• Decision Date: 25 July 1892
• Docket Number: 38.
• Parties: LEMOINE v. DUNKLIN COUNTY.
• Court: U.S. Court of Appeals — Eighth Circuit

51 F. 487

LEMOINE v. DUNKLIN COUNTY.

No. 38.

United States Court of Appeals, Eighth Circuit.

July 25, 1892

Statement by CALDWELL, Circuit Judge:

This is a suit in equity commenced on the 2d day of July, 1888, in the circuit court of the United States for the eastern district of Missouri, by the appellant, Louis R. Lemoine against Dunklin county, the appellee, to compel the county to convey to the appellant about 17,000 acres of land, which the bill alleges the county holds in trust for the appellant, and to require the county to account for the proceeds of such of said lands as it has sold. The lands in question are swamp lands, granted by the United States to the state of Missouri by act of congress approved September 28, 1850, and granted by the state to the county in 1851. The receiver and register of swamp lands for the county were invested by law with authority to sell the swamp lands of the county; and, in 1857, these officers issued receipts and certificates of purchase for a portion of these lands to sundry persons, who subsequently transferred their rights to the appellant. The certificates of purchaser were in the following form:

'LAND OFFICE AT KENNETT, DUNKLIN COUNTY, STATE OF MISSOURI.

'No. 425.

JANUARY 26, 1857.

'It is hereby certified that in pursuance of law Clark and Richardson, of Shelby county, state of Tennessee, on this day purchased of the register of this office, (here follows a description of the lands,) at the rate of one dollar per acre, amounting to-- dollars, for which the said Clark and Richardson have made payment in full as required by law. Now, therefore, be it known that, on presentation of this certificate to the governor of the state of Missouri, the said Clark and Richardson shall be entitled to receive a patent for the lots above described.

(Signed)

'JAMES B. RICE, Register.'

On the 27th of February, 1857, an act of the legislature of the state, vested in the county court of the county the exclusive power to make deeds or conveyances of the swamp lands belonging to the county. As disclosed by the record, are these: An act of the legislature authorized the county to receive the stock of the Dunklin & Pemiscot Plank Road Company, at the rate of one dollar per acre, for the swamp lands of the county lying within six miles of the proposed plank road. The road was surveyed and located, and the company issued its stock to the county, at the rate of one dollar per acre for the land lying within six miles on each side of the line of the road, as located, and received in exchange therefor, from the proper county officer, certificates setting aside these lands to the company. The company transferred its interest in the lands under these certificates to Clark and Richardson, and Clark and the heirs of Richardson transferred their interest therein to the appellant. The plank road was never built.

The county answered, among other things, that it had never recognized appellant's or his grantors' rights to the lands; that the certificates of purchase were procured by fraud; that the lands were never paid for; that the plank road was never built, and the company never intended to build it; that the appellant's grantor, Clark, in 1866, while he was the owner and holder of said certificates, and repeatedly afterwards, demanded patents for the lands of the county, which had been refused; that the lands have been in the adverse possession of the county more than the period required by the statutes of limitations to bar an action for their recovery; that the county had at all times, and continuously, from the year 1859 down to the bringing of this suit, distinctly notified Clark and his grantees that said certificates were fraudulent and void, and that it would not convey to him or his grantees the said lands; that during all of that time, the county, to the knowledge of Clark and his grantees, was selling and conveying these lands to bona fide purchasers, who went into possession and made valuable improvements, and that large proportion of the lands have thus been sold; that the appellant has been guilt of laches, and that his claim is stale. Other defenses were pleaded, not necessary to be noticed. A demurrer was filed to the bill, which was overruled. 38 F. 567. Upon final hearing, the court below dismissed the bill for want of equity, (46 F. 219,) and the complainant appealed.

E. Cunningham, Jr., and Edward C. Eliot, (Phillips, Stewart, Cunningham & Eliot, on the brief,) for appellant.

G. H. Shields, Jos. Dickson, and Eleneious Smith, (Chas. P. Hawkins, on the brief,) for appellee.

Before CALDWELL and SANBORN, Circuit Judges and SHIRAS, District Judge.

CALDWELL Circuit Judge, after stating the facts as above, .

The relation between the vendor and vendee of lands under an executory contract to convey is that of trustee and cestui que trust of an express trust. This was the relation established between the county and the holder of these certificates. There has been contention at the bar whether such a trust is an express or an implied trust. Calling it by either name will not change its nature or vary the rights and obligations of the parties. By whatever name called, it is a trust which imposed on the county the obligation to convey the lands to the holders of the certificates, and to hold the legal title to the lands in trust for that purpose. Lewis v. Hawkins, 23 Wall. 126; Lemoine v. Dunklin Co., 38 F. 567. With reference to trusts of this nature the rule undoubtedly is that, so long as nothing is done by the trustee or the cestui que trust to change their relations, the mere efflux of time will not impair the obligations of the one or the rights of the other. In express trusts no length of time is a bar, and laches will not be imputed to the cestui que trust until the trustee plainly and unequivocally denies the trust, and such denial comes to the knowledge of the cestui que trust. But when the trustee of an express trust, by clear and unequivocal acts and declarations, repudiates and disavows the trust, and such repudiation is brought home to the cestui que trust, from that time the bar begins to run, and laches may be imputed to the cestui que trust. This rule is not questioned. But it is earnestly contended that there is no competent evidence to show that the county ever repudiated the trust prior to 1886, when the present complainant demanded a deed which was refused. The real question in the case is fairly stated by the learned counsel for appellant to be, 'Whether or not appellee ever before that time (1886) repudiated or denied the trust in such a way as to make it the duty of appellant or his grantors to bring their suit, is the question for the consideration of the court. ' This is a question of fact upon which we have had no difficulty in coming to a satisfactory conclusion. The parol evidence to prove Clark's demand on the county court for a deed, and the court's refusal to make the deed in 1866, is objected to on the ground that the county court is a court of record, and that its official acts can only be proved by its records. There are several answers to the objection to this testimony. In the first place, the county records, including the records of the county court for that period, are shown to have been destroyed by fire. It must be remembered that the only object of the testimony is to establish the fact that the county disavowed the trust, and that Clark had notice of the fact. It would seem that the testimony of persons who were present and saw Clark exhibit his certificates, and heard him demand deeds on them, and heard the county judge refuse his demand, and deny the validity of the certificates, is at this day, and under the circumstances of this case, the best attainable evidence of these facts. The court takes judicial notice of the general condition and history of the country. It is very well known that county courts in Missouri at those times, in counties like Dunklin, were not very formal or ceremonious in the transaction of the county's business. There was a good deal of pristine simplicity in the procedure of these courts in those times. The business of the citizen with the court was usually transacted without the intervention of a lawyer, and justice was not delayed or baffled by forms and technicalities. The citizen having business with the county conferred freely with the county judge about many matters, without the formality of a written petition. It is not likely that Clark filed any written petition requesting the county to make him deeds. It is more probable that the request was made orally, and that the refusal was made in the same way by the county judge. The fact that this request was frequently preferred by Clark during the period of three years renders it highly improbable that it was in writing, or that a record was...