Sexton v. Danklin County

*684 "WOODSON, J. Tlie facts of this case are in its main features practically undisputed, and are as follows, as shown by the statement of the case as gleaned from the briefs of counsel. They are: In the late spring or early summer of 1918, John McAnally and E. V. McGrew presented to the County Court of Dunklin County, Missouri, a petition asking that said court have certain lands surveyed (the lands in controversy), and also at the same time made application for a patent to said lands when the same should'be surveyed, a plat thereof made and the same approved by the court. Upon this petition and application the court ordered the lands surveyed, the plat was made by the county surveyor, who did- the surveying, and returned to the court, and by an order of record the same was duly approved by the court, and a patent was issued to said John McAnally and E. V. McGrew for the lands in controversy for the full consideration of $2.50 per acre. Sometime in 1918 and after the patent was issued, as is shown by the record, McAnally and wife, Esther K., conveyed said premises (the whole) to Ohas. S. Schultz as trustee for Drew.Vardell to secure the payment of $350. At the time the first notice was published to foreclose under the deed of trust it was first discovered by Mc-Anally that he had given a deed of trust on the whole of said tract when in fact he only had title to an undivided one-half interest, whereupon he sought E. V. McGrew and purchased for a nominal consideration by deed of warranty the other one-half interest, to save embarrassment. After securing this deed, which was in January, 1919, John McAnally, being unable to protect his interests financially, at the trustee’s sale, executed to Dunklin County a deed of quit claim for all of said lands, thereby saving himself from loss. At the sale under the deed of trust, W. F. Sexton became the purchaser of this land, and he, and after his *685 death Ms heirs, brought this cause of action to determine title. Defendant Dunklin County permitted judgment to go by default, but Hemphill Lumber Company filed its .answer in court on the same day of the trial, and contested the case, it being the contention of defendant Hemphill Lumber Company about as follows: That the grantors of it, Hemphill Lumber Company, patented tHs identical land as fractional parts of the sections and before it had ever been surveyed, but that it was surveyed in 1906, and that therefore it has title, while it is the contention of plaintiffs that the county court could not patent unsurveyed land and give title. By reading the foregoing statement it.will be seen that the legal proposition presented for determination is single and confined to a very small compass, to-wit: Had Dunklin County the legal authority to patent the land in controversy before it was surveyed? If this question is answered in the affirmative then the decree of the circuit court must be affirmed, but if in the negative it must be reversed. Counsel for appellants contend that the County Court of Dunklin County had no power or authority to sell this land before the same had been surveyed, and relies upon the following authorities in support of that contention: Section 8032, Revised Statutes 1909, which provides that all lands formed by the abandonment of waters from the beds of lakes and rivers or by the formation of islands are granted and transferred to the counties.in which such lands are located; and Frank v. Groddin, 193 Mo. 390; Lee v. Conran, 213 Mo. 404; Schneider v. Schneider, 224 S. W. 1. We have carefully examined the authorities cited, and find that they fall far short of holding what counsel for appellants contend; but upon the other hand, we find no legislative enactment requiring a survey of lands to be made prior to the power of the county to convey title thereto. Section 6994, Section 7029 and Section 7030, *686 Revised Statutes 1919, give the county court of the county the untrammeled authority to sell and convey its lands to whom it deems proper, with the single restriction that it must receive the purchase price, which must not be less than $1.25 per acre. It is fairly deducible from the following citations that: A patentee is not chargeable with any neglect of duty on the part of the county in its sales of land owned by it, but only chargeable with the duty that the statute places on the patentee, that of paying the statutory consideration therefor of $1.25 per acre. [Laws 1869, p. 66; R. S. 1919, sec. 6994; Bayless v. Gibbs, 251 Mo. 492, 158 S. W. 590; Whitman v. Giesing, 224 Mo. 600, 123 S. W. 1052; Mosher v. Bacon, 229 Mo. 338, 129 S. W. 680; Wheeler v. Reynolds Land Co., 193 Mo. 279, 91 S. W. 1050; Phillips v. St. Louis U. Transit Co., 214 Mo. 669, 113 S. W. 1065.] The law of this State is well settled to the effect that patents issued by county courts conveying lands, the title being in the county, does not require the patent to contain evidence that every condition imposed by the law has been complied with. That being true the patents of respondent being regular upon their face, and prior to that of appellant, are not subject to collateral attach. [Chouteau v. Allen, 70 Mo. 290; Russ v. Sims, 261 Mo. 27, 169 S. W. 69, l. c. 71-77; Frank v. Goddin, 193 Mo. 390, 91 S. W. 1057, l. c. 1059; State v. Dines, 206 Mo. 649, 105 S. W. 722.] It must follow from the views above expressed that the contention of appellants is not sound, and is'therefore decided against them. Finding no error in the record, the decree of the circuit court is affirmed. All concur.