Stone v. Perkins

• Decision Date: 02 March 1898
• Citation: 85 F. 616
• Parties: STONE v. PERKINS et al.
• Court: U.S. District Court — Eastern District of Missouri

85 F. 616

STONE v. PERKINS et al.

United States Circuit Court, E.D. Missouri.

March 2, 1898

John F Greene and Geo. O. Crane, for plaintiff.

Phillips & Walker and Lee & McKeighan, for defendants.

ADAMS District Judge.

This is an action at law to recover the possession of certain real estate located in Stoddard county, Mo. Plaintiff and defendants each claim title under grants from Stoddard county. The land in dispute is conceded to be swamp land within the meaning of the acts of congress and the acts of the legislature of Missouri in relation to 'swamp' or 'overflowed' lands. Plaintiff claims title under a sale made on execution issued on a general judgment for $1,136.80, against Stoddard county, by the circuit court of that county, in the year 1868. The judgment was rendered on March 31, 1868, in a cause in which Lewis M. Ringer was plaintiff and Stoddard county defendant. The land was sold under execution on September 16, 1868. Lewis M. Ringer became the purchaser, and his title is now held, through mesne conveyances, by the plaintiff. Without referring specially to the several acts of congress granting this and other swamp lands to Missouri, or to the acts of the legislature of Missouri granting the same to Stoddard county, I content myself with stating that it appears from such acts,-- as construed by the supreme court of Missouri in the cases of State v. New Madrid Co., 51 Mo. 85; Sturgeon v Hampton, 88 Mo. 203; Railway Co. v. Hatton, 102 Mo. 45, 14 S.W. 763; and St. Louis, C.G. & Ft. Ry. Co. v Wayne Co., 125 Mo. 351, 28 S.W. 494,-- that the land in question was held in trust by Stoddard county for the ultimate use and benefit of the public schools of the county, and was not a part of the general assets of the county of Stoddard, or subject to be sold on execution to pay a general judgment against the county. Under these authorities, the plaintiff's remote grantor acquired no title by virtue of the execution sale, and the plaintiff has acquired none by the several mesne conveyances from such grantor to him.

2. Plaintiff next claims title to the land in controversy by and through a conveyance made on the 28th day of April, 1869, by one Alferd Elzroth, acting as special commissioner for the county of Stoddard, to Lewis M. Ringer. At the time Ringer purchased the tract of land now in controversy at execution sale, divers other persons purchased different tracts of land offered for sale at the same time to satisfy the judgment of Ringer; so that there were sold on that occasion 107,000 acres of this swamp land to satisfy Ringer's judgment against the county. The several purchasers claimed title as a result of their purchases. It appears, however, that soon after these purchases were made the county court of Stoddard county was advised that the sales of this trust property to satisfy a general judgment were void, and employed W. G. Phelan and David G. Hicks, attorneys at law, to bring suits against the several purchasers to recover the land. A contract was entered into between the county and these attorneys, by the terms of which they were to receive 50,000 acres of this land as their fee in the event of success. Before anything was done in the way of instituting suits under this contract, the county court met the several purchasers at the execution sale, and compromised with them. This compromise also necessarily involved a compromise with the attorneys, who had this contract claim to 50,000 acres of the land. By the terms of the compromise the several purchasers agreed to pay to the county of Stoddard, in sums respectively corresponding to the lands which they had purchased, the aggregate amount of $13,500, in Stoddard county warrants, or in their promissory notes, secured by mortgages on real estate, bearing 6 per cent. interest, and payable in one and two years thereafter. The attorneys, according to the terms of the compromise, were each to receive 10,000 acres of the land in satisfaction of their rights under their contract of employment. It appears that Alfred Elzroth was appointed by the county court as a special commissioner to make, execute, and deliver to the several purchasers at the execution sale, and also to the two attorneys, Phelan and Hicks, conveyances, or 'letters patent,' as they are called in the order of compromise, for their respective shares of the land. It further appears that Elzroth made the deeds, in accordance with the terms of the compromise agreement, and, among them, made one to Lewis M. Ringer for his proportion of the land, which is now held through mesne conveyances by the plaintiff.

The question now arises whether this deed, made by Commissioner Elzroth, conveying the land in question, as a result of the aforesaid compromise, to the plaintiff's remote grantor, Ringer, constitutes a valid legal title to the land? In determining the effect to be given to this commissioner's deed, it must be borne in mind that the 'county courts of Missouri are not general agents of the counties. * * * Their powers are limited and defined by law. * * * The statutes constitute their warrant of attorney. * * * Whenever they step outside of and beyond their statutory authority, their acts are void. * * * Persons dealing with such agents are bound to take notice of their powers and authority. ' Such are the conclusions reached, and the doctrine held, in the following cases: Sturgeon v. Hampton, supra; Saline Co. v. Wilson, 61 Mo. 237; Wolcott v. Lawrence Co., 26 Mo. 275; State v. Bank of Missouri, 45 Mo. 538; Andrew Co. v. Craig, 32 Mo. 531.

Section 3 of the act of March 27, 1868 (Sess. Acts Mo. 1868, p. 69...