State ex rel. Twp. Forty-Four v. Dent

• Citation: 18 Mo. 313
• Parties: THE STATE, TO USE OF TOWNSHIP FORTY-FOUR, Appellant, v. DENT, Respondent.
• Decision Date: 31 March 1853
• Court: United States State Supreme Court of Missouri

18 Mo. 313

THE STATE, TO USE OF TOWNSHIP FORTY-FOUR, Appellant,

v.DENT, Respondent.

Supreme Court of Missouri.

March Term, 1853.

1. Under the act of congress of March 23, 1823, where the register and receiver under the advice and direction of the school commissioners appointed by the state, located land in lieu of the sixteenth section, granted by the act of March 6, 1820, for the use of schools, and where the land thus located was sold under a law of the State, on the petition of the inhabitants of the township, and the money applied to the benefit of schools in that township, it was held, that the state and the inhabitants of the township were estopped from afterwards claiming the sixteenth section.

Appeal from St. Louis Circuit Court.

E. Bates, for appellant.

I. The title of the plaintiff to all those parts of section 16, township 44, not disposed of by the government before March 6, 1820, was perfect by the act of congress of that date, and the ordinance of the Missouri convention, dated July 19, 1820, and has uniformly so been considered by our legislature and so adjudged by this court. (See act of January 17, 1831; R. C. 1835, p. 562; 8 Mo. 477; ib. 640; 3 ib. 310; 13 ib. 112; ib. 139.) The title of the state being complete, it can only be divested by the act or assent of the state itself.

II. The plaintiff is not estopped to claim the fractions of section 16, by the fact that section 31 was appropriated and sold for the benefit of schools in township 44. The state is the party to be estopped, if any-body. The terms of the grant are to the state, for the use of the inhabitants, for the use of schools. The state has done nothing whereby it could be estopped. It had nothing to do with the selection and sale of section 31, and if it had, that is no estoppel. There is nothing to show that section 31 was selected in lieu of section 16, or by any person having legal power to select, or under circumstances when, by law, a selection could be made at all. The act of March 3, 1823, limits the quantity to be selected in lieu, to the amount of interference of old claims, and designates its own officers--the register and receiver--to do the business, not trusting it to state officers or private persons. The testimony in this case shows that the selection was not made by the register or receiver. The inhabitants of the township have no power over the subject, except as it is granted to them by the acts of our legislature. (R. C. 1835, 1845, tit. “School Lands.”) The only direct grant of power in those acts is of the power to procure the sale by petition.

III. The inhabitants of township 44 had no right nor power to abandon the sixteenth section, and they never did abandon it in fact.

F. M. Haight and B. A. Hill, for respondent.

The act of March 6, 1820, is not a grant in presenti. The act is, that section 16 shall be granted, and when sold or otherwise disposed of, other lands equivalent thereto. This proposition is accepted by the state. If no part of the sixteenth section had been disposed of, the title would vest, after it had been surveyed and designated. But if any part had been disposed of, then no title vested even to the portion which remained; but the right of the state was to have equivalent lands. Unt that right was exercised, and the equivalent lands agreed upon, the matter would rest in contract. The state did not accept part of a section, and was not bound to accept it. The state might have taken and the government have given part, but that would have required some act between the parties. At the date of the act, there was no state; when the state was organized and admitted, she had a right to call on the federal government for the sixteenth section or an equivalent. In this case, she received the equivalent. Another section was selected and appropriated and reserved by the United States, and sold by the state, and the proceeds applied to the use of schools in township 44. The selection was made for the state by its authorized agents. But if it was not, the selection was adopted and the benefits received; and neither the state, nor its cestui que trust, the inhabitants, can, at this day, repudiate it. All parties are estopped.RYLAND, Judge, delivered the opinion of the court.

1. The land sued for in this action, is a part of section No. 16, in township 44, of range 6 east, lying in the county of St. Louis, being the northeast and north-west fractional quarters of said section, containing about 227 acres of land. The balance of the section is covered by old Spanish grants, confirmed under acts of congress. The plaintiff claims the fractions of said sections as school lands, under the act of congress of March 6, 1820, by which the sixteenth section in each township in the state of Missouri is granted to the state for the use of schools in the several townships; and where such section is sold or otherwise disposed of, lands equivalent thereto and as contiguous as may be, are granted. The defendant claims the north-west fractional quarter of said section, by purchase at public sale, as public land, from the register and receiver of the United States, under the act of congress of February 17, 1818, for which he obtained a patent 20th May, 1824. The north-east fractional quarter was entered as public land, by the defendant, and the patent of the United States therefor was issued 18th April, 1831; and the defendant has been in possession of the land since the date of the patents.

On the 3d March, 1823, it was enacted by congress that, where a part of the sixteenth section had been disposed of, a location of land in lien thereof might be made, and the registers and receivers of the several land offices of the United States were authorized by the act to make the selection and location, and had the power to include or exclude the residue of the sixteenth section. The act directed “a descriptive entry of such selected lands to be made on the books of the register, specifying the township in which, as that for the use of which the selection shall have been made.” The register and receiver were to make the selections as soon as might be, and the lands thus selected and located, were granted in...