Pool v. Brown

• Decision Date: 10 June 1889
• Citation: 98 Mo. 675,11 S.W. 743
• Parties: POOL v. BROWN et al.
• Court: Missouri Supreme Court

11 S.W. 743

98 Mo. 675

POOL v. BROWN et al.

Supreme Court of Missouri.

June 10, 1889.

SWAMP LANDS — COUNTY BOUNDARIES.

1. Rev. St. Mo. 1855, p. 471, defining the boundaries of Stoddard county, and act March 14, 1859, defining the boundary of Bollinger county, being in conflict, the latter act must prevail.

2. The legislature having the power, as between the state and the counties, to make such changes in the boundary lines between counties as it may see fit, and the title to swamp lands within the state having been by act Mo. Nov. 4, 1857, vested in the counties "in which they may lie," a patent from the state to the county in which the lands were situated at the date of its issuance passes the state's title, subject to any vested rights previously acquired while the lands constituted a part of the territory of another county.

3. The special law (act Mo. Feb. 21, 1857) providing a mode of selling swamp lands in Bollinger county was comprehended within the repealing clauses of the subsequent general acts concerning swamp lands, (acts March 27, 1868, and March 10, 1869) though not specially mentioned therein.

4. The fact that a deed of swamp land from the county court under acts Mo. March 27, 1868, and March 10, 1869, contains an unauthorized covenant of warranty, does not impair its effect as a conveyance of title.

Appeal from circuit court, Bollinger county; JAMES D. FOX, Judge.

Wm. Carter and M. R. Smith, for appellants. Moses Whybark, for respondent.

BRACE, J.

The plaintiff's action is in ejectment for three detached tracts of land in sections 5, 8, and 17, in township 28, range 10, in Bollinger county. The case was tried before the court without a jury. Verdict and judgment for the plaintiff, from which defendants appeal. The lands in controversy are part of the swamp lands granted to the state of Missouri by act of congress approved September 28, 1850. The plaintiff claims title through mesne conveyances under a deed from Bollinger county dated May 23, 1871, and under a patent from the state of Missouri to said county dated August 4, 1869, executed by the governor, and duly recorded in pursuance of an act of the general assembly approved March 10, 1869, (Sess. Acts, p. 66.) Section 5 of that act makes this patent prima facie evidence of title in Bollinger county to the premises, if at that date they were situate in that county, which presents the first question on the record.

1. By an act of the general assembly approved March 1, 1851, (Sess. Acts, p. 193,) Bollinger county was organized out of territory theretofore forming a part of the counties of Wayne, Stoddard, and Cape Girardeau. By the boundaries then established, made more definite by the Revised Statutes of 1855, (volume 1, p. 471,) the lands in controversy remained in Stoddard. By an act approved January 15, 1857, (Sess. Acts, p. 237,) the boundary line between Bollinger and Stoddard counties was changed, and that part of the land in sections 5 and 8, west of Cane Creek slough, was put in Bollinger county. By an act approved March 14, 1859, (Sess. Acts 1858-59, p. 304,) the boundary line between these two counties was again changed, and all of said land put within the territorial limits of Bollinger county, and all the land so remained in Bollinger county until the Revision of 1865. By chapter 34, tit. 11, of that Revision, p. 185, defining the boundaries of all the counties in the state, in alphabetical order, Bollinger (section 50) comes first, and its boundaries are defined as by the act of 1859, leaving this land in Bollinger county. When we come to Stoddard county (section 103) we find its boundaries, however, defined as in the Revision of 1855, by which this land would be still included within the boundaries of Stoddard. This conflict between the boundaries in these two sections, as they appeared in the General Statutes of 1865, was removed by an act amending section 103, c. 34, approved March 24, 1868, by which the line of Stoddard county was made to conform to the line of Bollinger as defined in section 50 of the revised act, and the previous acts cited, and this line has ever since been the boundary between the two counties. As between the state and the counties there can be no question that the legislature had the power to make these changes in the boundary line between these counties, (Opinion of Judges, 55 Mo. 295; Abernathy v. Dennis, 49 Mo. 468; Barton Co. v. Walser, 47 Mo. 189;) and the title to these lands having by act of November 4, 1857, (Acts Adj. Sess. 1857, p. 32,) been vested in the counties "in which they may lie" by legislative grant, and being in Bollinger at the time the patent from the state issued, the title of the state passed to Bollinger county, and the patent was prima facie evidence of that fact, subject, however, to any vested right that may have been acquired by any person or corporation from the state or Stoddard county, while the lands constituted a part of the territory of said county. As bearing upon another branch of the case, it may be as well here to announce the conclusion that these lands have been within the territorial limits of Bollinger county ever since March 14, 1859, where they were so placed by the act of that date which is the last original expression of legislative will on the subject. The carrying forward into the General Statutes of the existing laws on that subject was simply a continuation of the law of 1855, as to the boundary of Stoddard, and the law of 1859, as to the boundary of Bollinger, and, the last act being repugnant to and inconsistent with the former, it must prevail, (Gen. St. 1865, p. 883, §§ 5, 6; Cape Girardeau v. Riley, 52 Mo. 428; St. Louis v. Alexander, 23 Mo. 483;) and so it would have been held, even if the legislature had not at a subsequent session corrected the evident mistake in the boundaries of Stoddard county made by simply copying them from the Revised Statutes of 1855, without regard to subsequent legislation by which the boundary was changed.

2. By section 6 of the act of March 10, 1869, under which this land was patented to the county by the state, it is provided that "the several county courts shall have full power and control over all swamp lands patented to their respective counties under the provisions of this act, and to sell and dispose of the same with like effect as now provided by the General Statutes in relation to the conveyance of other real estate belonging to their respective counties." The deed from Bollinger county, under which the plaintiff claims, was made in execution of this power and the power granted by section 9, Gen. St. 1865, p. 556, by a commissioner appointed by the county court of said county under the provisions of section 4, p. 444, Gen. St. 1865, in pursuance of a sale made by order of the county court of said county to Judson Gardner, and was effective to pass the title of the county to said grantee if the law of 1869 applied to the swamp lands situate in the county of Bollinger. Prior v. Scott, 87 Mo. 303. It is contended for the defendant that it did not, for the reason that at that time there was an unrepealed special law regulating the sale of swamp land in said county, the terms of which it is conceded were not complied with. The grant of these lands by the general government to the state was in trust. The trust, however, has been held to be a personal one, not running with the...