"Plaintiff states that codefendant Himmelberger-Harrison Land Company is a corporation organized under the laws of the state of Missouri. That the St. Louis Union Trust Company is a corporation organized under the laws of the state of Missouri. That heretofore, on May __, 1857, at the May term of the ____ court of New Madrid county, Missouri, there was legally sold the land hereinafter set out and described, and that at said sale one Augustus E. Shields purchased the following described swamp lands belonging to the county of New Madrid, Missouri, to wit, 40 acres of land, being the southeast quarter of the southwest quarter in section No. 26; also 160 acres, being the southeast quarter of section No. 26; also 80 acres, being the north half of the northeast quarter of section No. 35 — township 23, range 13, being in all 280 acres, for the price and sum of $1,729.20. That said lands being a part of the swamp lands granted to the state of Missouri by the United States by the swamp land act of Congress, approved 28th September, 1850, and that on, to wit, 23d day of May, 1857, after the purchase of said lands by said Shields, and under and by virtue of said purchase and the laws governing such sales, the register of swamp lands within and for said county, by John T. Scott, issued and delivered to said Augustus E. Shields a register certificate of purchase therefor, describing said lands then and reciting the purchase price, sale and name of purchaser, which sale and certificate of purchase was duly recorded in the register's office in the records provided for by law for that purpose, which record was a public record of said county. That after that, to wit, said Augustus E. Shields sold his interest in said lands to one Shapley R. Phillips, and assigned and transferred his register certificate of sale to him for a valuable consideration. That after that, to wit, on the 14th day of August, 1860, Shapley R. Phillips paid to George W. Dawson, the treasurer of New Madrid county, Missouri, for said county, the sum of $2,233.70, being the full amount due for the balance due on the purchase price of the above-described lands and other lands entered by Edward Coleman and Wm. D. Waldrop; and said George W. Dawson as such treasurer on said date executed and delivered to said Shapley R. Phillips his treasurer's receipt therefor, and thereby said Shapley R. Phillips became the equitable owner and had the equitable title to said lands, but the legal title remained in the county, who in equity held the same in trust for the use and benefit of said Phillips. That since said date, August 14, 1860, and till his death, said lands were taxed to Shapley Phillips, and he paid the taxes on same; cut and sold timber from same, and cut and used timber from same; and under his equitable title claimed the ownership thereof, and made such use thereof as it was fit for. That said Phillips died, and the property sued for, with other property, was set off and allotted to plaintiff in a suit in partition in the New Madrid circuit court in the year 1872, and has since then been held by plaintiff and taxed to plaintiff, and plaintiff has paid all taxes on same, and used the same for wood and timber, and for such purposes for which it was fit. And so, he says, he and his grandfather, Shapley R. Phillips, under whom he claims, have held the equitable title claiming the property in this suit since August, 1860, using the same for such purposes for which it was fit, paying taxes on same, and that these rights and claims through all these years have been undisputed and notorious, and was known to Himmelberger & Luce and others, who have since been grantees from the county and under them, and could have been known by ordinary inquiry, investigation, and observation.
"He states that he is informed that the register record of sale of lands and register record of certificate of sale of land were destroyed by fire during the period of the Civil War, between the years 1861 and 1865. He further states that about the first day of December, 1885, the county court of New Madrid county, Missouri, contracted with C. L. Luce (now dead) to dig a certain ditch or drain therein described and to be finished and completed in a limited and stated time in said contract specified, and upon its completion, according to plans and specifications, within the time named, to pay therefor a stipulated sum; but not to be paid in money, but in certain swamp lands
at an agreed price per acre. That Luce died shortly after the commencement of said work, and said contract determined that later on, to wit, 20th May, 1893, said contract, with certain modifications, extensions, and provisions not embodied in the original, was renewed with the heirs of C. L. Luce, namely, Elmira Luce, Ella Gould, A. B. Luce, Carrie Brown, Lilla Harrison, and Frederick Rundle, by which the county of New Madrid contracted to pay to said parties on the completion of said ditch, according to the plans, within the time limited, a stipulated sum, but not in money, but in such lands as the county owned valued at $1.25 per acre. That the time for completing said contract was afterward extended; and that the said Luces, with the consent of said county, assigned said contract to John H. Himmelberger. That after that, on the 25th May, 1899, said New Madrid county court caused a patent to be executed and signed by the president thereof, and countersigned by the clerk thereof, and to be delivered to John H. Himmelberger to the lands above described, together with a large body of other lands in payment for said ditch, which is recorded in the recorder's office of New Madrid county, Missouri, in Deed Record Vol. 37, page 421 and others. That on, to wit, 11th day of August, 1899, John H. Himmelberger and wife (who had taken patent as trustee for himself and the Luce heirs) executed and delivered a deed to all the lands described in said patent, including the lands in this suit to Himmelberger-Luce Land & Lumber Company, a corporation, which is recorded in Deed Record Vol. 37, page 449 and others. That on the 31st day of March, 1902, the Himmelberger-Luce Land & Lumber Company, a corporation, executed and delivered a deed for the lands patented, including the lands in this suit to Himmelberger-Harrison Land Company, a corporation, which deed is recorded in Record of Deeds Vol. 41, pages 517, 518, and others. That on, to wit, 2d April, 1902, the Himmelberger-Harrison Land Company, a corporation, executed and delivered to St....
