Pettis Cnty. v. Gibson

• Decision Date: 30 April 1881
• Citation: 73 Mo. 502
• Parties: PETTIS COUNTY v. GIBSON, Plaintiff in Error.
• Court: Missouri Supreme Court

73 Mo. 502

PETTIS COUNTY

v.GIBSON, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Pettis Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRME

John F. Philips for plaintiff in error.

1. The county was invested by law with the absolute ownership of and dominion over this land, and had power, through the county court, to sell, and to deal with it directly or by agent, as it saw fit. Wag. Stat., p. 875, §§ 41, 42; p. 441, § 9; p. 408, § 3. The power to sell also carried with it the right to make a deed through the president of its county court. Hann. & St. Jo. R. R. Co. v. Marion Co., 36 Mo. 304. The county, in disposing of this land, did not occupy the position of a mere trustee. She occupied a position analagous to that of the government itself--a landed proprietor. Her deed was prima facie evidence that all the prerequisites to a sale had been complied with; especially so when her authorized agent, Washburn, ascertained the facts of sale and payment, as he recites in his deed. Swartz v. Page, 13 Mo. 610. His deed was binding on the county and passed the legal title. Reilly v. Chouquette, 18 Mo. 222.

2. There is nothing mandatory or exclusive in the terms of section 4, page 273, 1 Wagner's Statutes, so as to prevent the county from disposing of its real estate in any other manner than through a commissioner. Clark v.Brown, 18 Wend. 220; Stafford v. Ingersol, 3 Hill 39; State v. Bittinger, 55 Mo. 599.

3. The deed of Washburn is in exact conformity to the delegated power. And even if it did not fully refer to the order of his appointment, it being a naked power, the law would uphold the deed as an execution of the power. Blagge v. Miles, 1 Story 426; Hazel v. Hagan, 47 Mo. 277; Henry v. Atkison, 50 Mo. 266; Campbell v. Johnson, 65 Mo. 440; Crane v. Lessee, etc., 6 Pet. 598; McKnight v. Wimer, 38 Mo. 132, 136; Gentry v. Robinson, 55 Mo. 260.

4. The order of the county court shows it had sold certain of the swamp lands; and when it appointed Washburn to make the deed of conveyance on being satisfied, by affidavit of the purchaser, that the purchase money had been paid, and he accordingly made the deed, the county cannot, as against subsequent purchasers, disregard such deed and recover the land in ejectment. Hann. & St. Jo. R. R. Co. v. Marion Co., 36 Mo. 305; State v. Van Horne, 7 Ohio St. 331; Jones v. Mack, 53 Mo. 147; Bowlin v. Furman, 28 Mo. 427, 532; Kinney v. Mathews, 69 Mo. 523.

G. C. Heard for defendant in error.

1. The deed made by Washburn, purporting to be executed by virtue of the power given him in the order, is not sufficient to convey the county's interest in the land in controversy, unless it appears by proper evidence that this land was embraced in the order. The order does not, of itself, show that he had authority to convey the land to Glasscock, for it does not say that this is swamp land. The only intimation that it was swamp land, and was embraced in the order, is found in the recitals of Washburn's deed. These recitals constitute no evidence, either of his appointment to make the deed, or that he made it in accordance with the power given him in the order. These two essential elements in every conveyance made by an agent, must appear by evidence aliunde the deed itself. Watson v. Watson, 10 Conn. 77; Howard v. Lee, 25 Conn. 1; Hart v. Stone, 30 Conn. 94; Innman v. Jackson, 4 Me. 237.

2. The deed is void; ( a) Because the county court did not proceed in the manner pointed out by the statute, (Acts 1869, p. 69, § 6,) in relation to sale of swamp lands; ( b) Because the court had no power to appoint its presiding justice to execute a deed.

HENRY, J.

This is an action of ejectment by the county, plaintiff, to recover possession of the southeast quarter of the southeast quarter of section 15, township 47, of range 23, lying in Pettis county By an agreed statement, it appears that, prior to April 10th, 1871, the county owned the tract in question, and defendant claims under a deed of that date, executed by E. W. Washburn, president of the county court of Pettis county, to A. A. Glasscock--subsequent deed from Glasscock to one Allen and one from Allen to him. He introduced, as evidence of his title, the following order made by the county court of Pettis county, at its April term, 1871: “It is ordered by the court that E. W. Washburn, presiding justice of the court, execute and deliver deeds, conveying all the right, title, interest, claim and estate of the county of Pettis, of, in and to any and all swamp lands that have been purchased by individuals, and on their making affidavit that the land has been paid for.” He then offered as evidence a deed executed by said Washburn to said Glasscock, which is as follows: “Know all men by these presents, that, whereas the county court of the county of Pettis, in the State of Missouri, by its order duly made and entered of record on the 3rd day of April, 1871, ordered and directed the undersigned, E. W. Washburn, presiding justice of the said county court, to execute and deliver deeds conveying all the right, title, interest, claim and estate of the county of Pettis, in and to any and all swamp lands that had been purchased by individuals from the said county of Pettis, and on their making affidavit that the lands had been paid for; and, whereas, Aldea A. Glasscock has this day presented to me his written affidavit, subscribed and sworn to according to law; whereas, the said Glasscock testified under oath that he had purchased of the said county of Pettis the following described swamp lands, situate in the county of Pettis, and that he had paid for the same, to-wit: The southeast quarter of the southeast quarter of section fifteen (15), township forty-seven (47), range twenty-three (23); * * the same having been heretofore purchased by him; and wherein he stated that he had fully and completely paid the said county of Pettis the whole amount of said money for the said lands; now, therefore, I, the undersigned E. W. Washburn, presiding justice of the county court of Pettis county, as aforesaid, for and in consideration of the premises, and by virtue and authority of the power in me vested by said order of said court, do...