Pool v. Brown

• Court: Missouri Supreme Court
• Writing for the Court: Brace, J.
• Citation: Pool v. Brown, 98 Mo. 675, 11 S.W. 743 (Mo. 1889)
• Decision Date: 01 October 1889
• Parties: Pool v. Brown et al., Appellants

11 S.W. 743

98 Mo. 675

Pool v. Brown et al., Appellants

Supreme Court of Missouri

October 1, 1889

Appeal from Bollinger Circuit Court. -- Hon. J. D. Fox, Judge.

Affirmed.

M. R Smith and William Carter for appellants.

(1) There was a special law regulating the sale of swamp lands in Bollinger county at the time of the sale to Judson Gardner and the sale, made as it was under the general law, to said Gardner was invalid and void. Acts, 1856-7, p. 239; State ex rel. v. McDowal, 38 Mo. 529; Smith v. Clark, 54 Mo. 58; State ex rel. v. Wesleyan, 11 Mo.App 373; Potter's Dwarris on Stat., p. 154, note 4; City of St. Louis v. Alexander, 23 Mo. 483. (2) The deed from Bollinger county to Judson Gardner, dated May 24, 1871, was void and should have been so held. Acts, 1868, p. 68, sec. 3; Acts, 1869, p. 66, sec. 6; Hutchison v. Cassidy, 46 Mo. 431; Sturgeon v. Hampton, 88 Mo. 231; St. Louis Co. v. Sparks, 10 Mo. 117. (3) The land in controversy was never in the limits of Bollinger county until after March 24, 1868, but prior thereto was a portion of Stoddard county, and the deed from said Stoddard county to the gravel road company, defendants' grantor, dated August 1, 1867, conveyed the fee simple title in said lands. G. S. 1865, p. 195, sec. 50; see also p. 210, sec. 103; Acts, 1868, p. 21; Ashley v. Harrington, 1 Chipman [Vt.] 348; State ex rel. v. Heidorn, 74 Mo. 410; Potter's Dwarris, p. 155. (4) The deed from the county of Bollinger to Gardner, dated May 24, 1871, and all mesne conveyances down to plaintiff, failed to convey a legal title whereon to bottom the action of ejectment. Henry v. McKerlie, 78 Mo. 431; Wells v. Lincoln Co., 80 Mo. 431; Evans v. Snyder, 64 Mo. 516; Tyler on Ejectment, pp. 75, 76; Ford v. French, 72 Mo. 252; Alexander v. Dougherty, 81 Mo. 184. (5) Qui prior est tempore potior est jure. 1 Pomeroy's Eq. Jur., sec. 418; Phillip v. Phillip, 4 DeG. F. & J. 208, 215; Davis v. Briscoe, 81 Mo. 27; Snell's Equity, pp. 25, 27.

Moses Whybark for respondent.

(1) A revised act does not have the effect of making the revised law entirely original, nor is it to be construed as though none of its provisions had effect but from the date of the revised law. When a former provision is contained in a revised law it operates only as a continuance of its existence and not as an original act. St. Louis v. Alexander, 23 Mo. 483; City of Cape Girardeau v. Riley, 52 Mo. 424; G. S. 1865, chap. 224, sec. 5, p. 883; Bishop v. Schneider, 46 Mo. 472; Fairchild v. Masonic Hall, 71 Mo. 526. The last expression of the legislative will should prevail in case of conflict between it and a previous expression. And if such conflict appear in the revised statutes, the court must see which is the latest law, and administer it. The mere fact that the old law is incorporated in the revised statutes along with the new one, does not give it vitality. This principle is well exemplified by the cases, namely: State ex rel. v. Merchant's Exchange Society, 72 Mo. 146; State ex rel. v. Heidorn, 74 Mo. 410. In case of an original statute it is said if the latter part be repugnant to the former part, it shall stand, and, so far as it is repugnant, be a repeal of the former part, because it was last agreed to by the makers of the statute. This is a purely arbitrary rule, to be applied only when all others fail, and then only as a necessity to harmonize the statute. It is used only in cases of irreconcilable repugnancy, and gives way to the fundamental principle, that the intention of the legislature is to govern. Sedgwick on the Construction of Statutes, pages 353 and 354. This being a revised statute, and not a new and original one, it will devolve on the court to harmonize it by ascertaining the intention of the law makers, and apply the rule that the latest law in point of time shall govern. The rule is that the intent must be followed. (2) Under the constitution of 1865, and the old constitution of Missouri, the legislature had full power to alter county lines at pleasure. Abernathy v. Dennis, 49 Mo. 468; Barton County v. Walser, 47 Mo. 189; Opinion of Judges on the Township Organization Law, 55 Mo. 189. (3) The special law entitled "An act in relation to swamp and overflowed lands in Bollinger county," approved February 21, 1857 (Sess. Acts, 1856 and 1857, page 239), was repealed by the general law of 1865, and especially by the act entitled an act in relation to swamp and overflowed lands, approved March 27, 1868, and the act approved March 10, 1869. Sess. Acts, 1868, pp. 68, 69; Sess. Acts, 1869, page 66.

OPINION

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 defendant appeals.

The lands in controversy are part of the swamp lands granted to the state of Missouri by an 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. 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.

I. By an act of the general assembly, approved March 1, 1851 (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 1 Revised Statutes, 1855, page 471, the lands in controversy remained in Stoddard. By an act approved January 15, 1857 (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 (Acts 1858-9, 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, title 11, of that revision (G. S. 1865, p. 185), defining the boundaries of all of the counties in the state, in alphabetical order, Bollinger (section 50) comes first, and its boundaries are defined as by the act of 1869, 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. The conflict between the boundaries in these two sections, as they appeared in the revision of 1865, was removed by an act amending section 103, chapter 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. 55 Mo. 295; 49 Mo. 468; 47 Mo. 189. And the title to these lands having, by act of November 14, 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. G. S. 1865, p. 883, secs. 5, 6; City of Cape Girardeau v. Riley, 52 Mo. 424; City of 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.

II. By section six of the act of March 10, 1869 (Acts, p. 67), 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, General Statutes, 1865, page 556, by a commissioner appointed by the county court of said county under the provisions of section 4,...