Sturgeon v. Hampton

• Decision Date: 31 October 1885
• Citation: 88 Mo. 203
• Parties: STURGEON et al., Appellants, v. HAMPTON.
• Court: Missouri Supreme Court

88 Mo. 203

STURGEON et al., Appellants,

v.HAMPTON.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Chariton Circuit Court.--HON. G. D. BURGESS, Judge.

AFFIRMED.

Wm. W. Rucker, Andrew Mackay, Jr., G. R. Lockwood and Noble & Orrick for appellants.

(1) The act of congress of September 28, 1850, conveyed to the state of Missouri a fee-simple title to swamp and overflowed lands within its borders, subject to the conditions contained in said act, and for a breach of these conditions congress alone can annul the conveyance, or the United States enter. Act of Congress, Sept. 28, 1850; U. S. Stat., vol. 9, p. 519; Dunklin County v. Dunklin County Court, 23 Mo. 456; Campbell v. Wortman et al., 58 Mo. 258; Adams Co. v. Am. Emigrant Co., 100 U. S. 61. And under this act no patent was necessary to convey the legal title to the state of Missouri. Washburn's Real Property (4 Ed.) vol. 3, secs. 29-32, pp. 230, 231; Grignon v. Astor, 2 How. 319; Chouteau v. Eckhart, 2 How. 344. And a grant by the government, state or federal, cannot be impeached collaterally in an ejectment suit. Washburn's Real Property (4 Ed.) vol. 3, sec. 35, p. 193. (2) The state of Missouri could and did, prior to 1860, convey to Chariton county the fee-simple title to swamp and overflowed lands within the borders of said county, and Chariton county had the right to convey said lands to the C. & R. R. R. Co., the N. Mo. R. R. Co., and the plaintiffs herein (appellants) in manner and form and for the consideration for which they were conveyed. Adams Co. v. Am. Emigrant Co., 100 U. S. 61; Sess. Acts 1861, p. 394; Sess. Acts 1850-1, p. 238; Sess. Acts 1854-5, p. 160: Sess. Acts 1854-5, p. 349; Sess. Acts 1857, p. 32; Sess. Acts 1857, p. 275; R. S. Mo. 1855, sec. 2, p. 502; R. S. Mo. 1855, sec. 17, p. 535; Hannibal & St. Jo. Ry. v. Marion Co., 36 Mo. 275; Reardon v. St. Louis Co., 36 Mo. 555; In re Saline Co., 45 Mo. 52; Page Co. v. Am. Emigrant Co., 41 Iowa, 115; Audubon Co. v. Am. Emigrant Co., 40 Iowa, 460; Allen v. Cerro Gordo Co., 34 Iowa, 54; Emigrant Co. v. Wright Co., 97 U. S. S. 339; Cooley on Const. Limit. 240; Linville v. Bohanan, 60 Mo. 554; Mitchell v. Nodaway Co., 80 Mo. 257. And the C. & R. Railroad Company had authority to convey the land in question to the North Missouri Railroad Company and receive subscriptions payable in land from the county; and the North Missouri Railroad Company was authorized to receive and convey said lands to Ann C. Sturgeon. Sess. Acts 1851, 483; Sess. Acts 1859-60, 208. (3) Until the act of 1863, sec. 7, p. 31, the county court of Chariton county was not forbidden to sell swamp lands for less than $1.25 per acre. R. S. Mo. 1865, 281; Sess. Acts 1863, sec. 7, p. 31; R. S. Mo. 1855, 502; acts cited under point two. (4) The feesimple to the lands in controversy having been granted to Chariton county, it was not competent for the state by subsequent legislation to fix a minimum price at which the county could sell. 3 Washburn's Real Property, (4 Ed.) sec. 29, p. 191. (5) That the sheriff of Chariton county made the sale of the land in controversy on the tenth of May, 1860, is shown by a preponderance of evidence, to-wit: The numerous orders of the county court, setting forth such sale, and the deeds executed by its agents wherein such sale is declared to have been made. (6) But at this time (1860) a sale by the sheriff was not required. Acts above cited; R. S. Mo. 1855, 502. (7) And even if such sale were necessary, the county of Chariton, and this defendant, who must be held to have notice of the fact that such sale was declared by the county court, as above stated, to have been made, are estopped from denying that such sale was made, the plaintiffs having relied upon these orders and deeds. Phelps v. Kellogg, 15 Ill. 131; Audubon Co. v. Am. Emigrant Co., 40 Iowa, 460; Durette v. Briggs, 47 Mo. 356. (8) The act of March 26, 1868, cured any irregularities in the sale of the land in 1860, 1865 and 1866. Barton Co. v. Walser, 47 Mo. 189; Sess. Acts 1868, 67; Dillon on Corporations, vol 1, (3 Ed.) 96, 104; Bridgeport v. Ry. Co., 15 Conn. 475; Wilcoxon v. Osborne, 77 Mo. 621. (9) The plaintiffs' title to the swamp lands was not affected by the application of the proceeds of sale by the county court. Dunklin Co. v. Dunklin County Court, 23 Mo. 455; Emigration Co. v. Wright Co., 97 U. S. 337; Adams Co. v. Emigration Co., 100 U. S. 61; Mills Co. v. Railroad Co., 107 U. S. 557, 566; Hager v. Reclamation Dist. No. 108, 111 U. S. 712.H. Lander and F. O. Smith for respondent.

(1) The county could not subscribe to the stock of a railroad without a vote of the taxpayers thereon. 1 R. S. 1855, 427, 429; Acts 1859, p. 320; Leavenworth v. Platte Co., 42 Mo. 171; Stevens v. Franklin Co., 48 Mo. 167. (2) The grant of the swamp lands to the county placed the legal title in it in trust for school purposes. State ex rel. v. New Madrid Co., 51 Mo. 85; Veal v. Chariton Co., 15 Mo. 412; Butler v. Chariton Co., 13 Mo. 112. And the trust could not be diverted by the trustee. Perry on Trusts, secs. 700, 733, 734; Mudfield v. Morris, 11 Kan. 151. (3) The trust being created by public acts, all persons are bound by it, even a purchaser for value. Hill on Trustees top p. 764; Andrew Co. v. Craig, 32 Mo. 531; 2 Sudg. on Vendors, 533. (4) In ordering the sale of swamp lands, the county courts do not act judicially, but ministerially, as agents of the county under the law. In re Saline County Subscription, 45 Mo. 51. County courts are not general agents of the county to do any and all things. They only have such powers as are granted, defined and limited by law, and like all other agents, they must pursue their authority and act within the scope of their powers. St. Louis v. Alexander, 23 Mo. 483; Wolcott v. Lawrence Co., 26 Mo. 272; Steines v. Franklin Co., 48 Mo. 167; Valle v. Fleming, 19 Mo. 454; Reardon v. St. Louis Co., 36 Mo. 555; State v. Shortridge, 56 Mo. 126; Bauer v. Franklin Co., 51 Mo. 205; Saline Co. v. Wilson, 61 Mo. 237. (5) And the county is only bound when its officers and agents act within the granted powers. State v. Clark, 41 Mo. 44; Sheely v. Wiggs, 32 Mo. 398; Steines v. Franklin Co., 48 Mo. 167; Wolcott v. Lawrence Co., 26 Mo. 272. All persons dealing with counties are bound to know that its officers act within their authority. State v. State Bank, 45 Mo. 529, 538; State v. Clark, 41 Mo. 44. A purchaser of swamp land is presumed to know, as a matter of public record, the agent's authority. Dart v. Hercules, 57 Ill. 446. Even a patent granted by the governor for swamp lands is worthless unless it be given pursuant to law. Rember v. Wills, 24 Mich. 15. (6) The county court had no power to appoint Hammond commissioner to make deed; the governor alone could convey under the law, and no deed could be made until full payment of the purchase money. 2 R. S. 1855, p. 1006, sec. 4; Andrew Co. v. Craig, 32 Mo. 528, 531. (7) The order of the county court of May 10, 1860, directing the sheriff to sell on that day, to the Chariton & Randolph Railroad, twenty-two thousand and four hundred acres of swamp lands in a lump, in consideration that the company would “assume to pay by written obligation to said county” for the use of the school funds, three thousand dollars “annually forever,” was without any authority of law and void. (8) The Cunningham deed and the one by Holcombe as commissioner were also void. An agent cannot ratify his own void acts. State v. Bank, 45 Mo. 542; Commissioners, etc., v. Carter, 2 Kan. 115. (9) The act of 1868 (Laws p. 67) was intended to cure defectively executed deeds and not irregular or void sales of swamp lands. Barton Co. v. Walser, 47 Mo. 189. (10) The county is not estopped by the unauthorized acts of its agents in the collection of taxes on the lands which were not taxable, and by the making and approval of illegal orders and deeds. These acts were all ultra vires. St. Louis v. Gorman, 29 Mo. 593; Rossire v. Boston, 4 Allen (Mass.) 57; McFarland v. Kerr, 10 Bosw. (N. Y.) 249; Hutchinson v. Cassidy, 46 Mo. 431, 434; State v. State Bank, 45 Mo. 528; Walcott v. Lawrence Co., 26 Mo. 372. (11) There was no error in allowing the parol evidence of ex-sheriff Crawley and his brother, stating that no sale or report of sale was ever made by the sheriff or any one authorized by him under the order of the tenth of May, 1860. Hutchinson v. Cassidy, 46 Mo. 431, 433-4.

BLACK, J.

This is an action of ejectment. Both parties claim title from Chariton county. The section of land in dispute is a part of the swamp lands of that county. The plaintiff's title is as follows:

1. On tenth May, 1860, the county court of that county made an order directing the sheriff to sell on the same day twenty-two thousand and four hundred acres of swamp land to the Chariton & Randolph Railroad Company, in consideration that the company assumed to pay to the county for the school fund three thousand dollars annually forever. On the same day the court made another order, reciting a sale made by the sheriff and report thereof, all of which was approved. The clerk was directed to certify to the governor that the consideration had been discharged and that he issue patents to the company. The governor declined to issue any patents. On July 2, 1860, the court appointed Hammond a commissioner to make a deed to the company, which he did, including therein the land in question. This deed recited a consideration of three thousand dollars, payable annually forever, to the school fund.

2. On November 6, 1862, the court made an order discharging the company from the payment of the three thousand dollars annually, provided it would construct its road within one-half mile of Keytesville, and locate a depot at that place; and on April 5, 1865, the court directed Cunningham, the presiding justice, to make a quit claim deed to the North Missouri Railroad Company for some thirteen thousand acres, that company having acquired a conveyance thereto from...