Smallwood v. Lafayette Cnty.

• Citation: 75 Mo. 450
• Parties: SMALLWOOD et al., Appellants, v. LAFAYETTE COUNTY.
• Decision Date: 30 April 1882
• Court: United States State Supreme Court of Missouri

75 Mo. 450

SMALLWOOD et al., Appellants,

v.LAFAYETTE COUNTY.

Supreme Court of Missouri.

April Term, 1882.

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

AFFIRMED.

Graves & Wood for appellants.

The certificate of indebtedness was payable out of the general expense fund of the county. It was an acknowledgment of general indebtedness by the county to Hixon. The school fund notes and judgment thereon were not due the county from Hixon in its own right. They were due the county simply as trustee. Ray Co. v. Bentley, 49 Mo. 242. In a suit against a defendant, a debt held by defendant as trustee, cannot be used as a set-off. McDonald v. Harrison, 12 Mo. 447; Waterman on Set-off, (2 Ed.) § 191.

William Young for respondent.

The so-called certificate of indebtedness, issued by the county clerk, was wrongly admitted. It could prove nothing. By law the county court only has power to audit claims against the county. Wag. Stat., p. 441, § 9. Such power cannot be delegated, and any contract delegating such authority is so far void. Plaintiffs took the claim of Hixon against defendant, subject to all of the equities and set-offs defendant had against Hixon.

HENRY, J.

The suit herein was for a balance due upon the contract which is set forth in the following certified copy of the record of Lafayette county court and upon the following certificate of indebtedness:

LAFAYETTE COUNTY COURT,

)

September Term, second day, Sept. 8, 1874.

)

Now, at this day, come Hixon and Russell, and present to the court here a contract, in which they propose to prove certain swamp lands in this county and receive compensation for the same, and which said proposition was heretofore filed in the office of the clerk of this court on the 21st day of July, 1874, and which said contract is in words and figures following, to-wit:

This agreement, made and entered into this 24th day of June, 1874, by and between William Hixon and Charles B. Russell, parties of the first part, and the county of Lafayette, party of the second part, witnesseth: That the said parties of the first part have been appointed by the county court of Lafayette county, commissioners to hunt up and obtain proof on all lands that were entered by individuals between the years 1850 and 1857, inclusive, being the lands returned by the county surveyor as swamp or overflowed lands, and, whereas, Col. Babbitt, United States Swamp Land Commissioner, and Captain Bergau, Swamp Land Commissioner for the State of Missouri, have arrived and are ready to hear evidence on the character and swampy condition of the same in the year 1850 and since that date, said parties of the first part are to furnish such and all legal evidence and proof of said land to said Babbitt and Bergau, commissioners as aforesaid, that they may be able to do; and for all lands that they, the said parties of the first part, may prove up as swamp land in the year 1850, before said commissioners, and upon which the county, on account of proof so made, shall have established before said commissioners her right to have pay for the same from the general government, they are to have, and to be paid by said county of Lafayette at the rate and price of thirty cents per acre on all lands so proved up aforesaid, except those lands for which the government received twelve and a half cents, and our commission for the proving up of the “bit” land, shall only be six and a quarter cents for each and every acre so proved up. If the proper proof is adduced the county will acquire land warrants for 1,440 acres of land, and our commission will be one-half of all land warrants received by the county, said commissions, etc., not to be paid until the county shall have received the moneys, warrants, etc., from the general government, through the State Treasurer of the...