author: Soott, Judge,

text:
    White, Appellant, v. Watkins & Davis, Respondents.
    X. A written advertisement or notice of a trustee’s sale, signed by the trus- • tee, is not a sufficient note or memorandum within the statute of frauds.
    2. In order that an entry of a sale made by an auctioneer may satisfy the requirements of the statute of frauds, it must be made at the time of the sale ; an entry made a month or more after the sale is not sufficient.
    3. In order that a delivery of possession to a vendee of land may amount to such a part performance as to take the case out of the statute of frauds, the situation of the parties must be such as that a refusal to carry out the paTol contract of sale will work a fraud upon the purchaser.
    4. A grantor in a deed of trust, who is also residuary cestui que trust, is a necessary party to a suit brought by a purchaser at the trustee’s sale for a specific performance of the contract of sale.
    5. Where trustees are empowered by a deed of trust to act separately, yet, if they elect to act jointly, as by giving a joint notice of sale, one can not act alone.

      Appeal from Mississippi Circuit Court.

    This was a suit brought by Robert White for the specific performance of a contract for the sale of land. Plaintiff claimed as purchaser at a sale made by defendants, Watkins and Davis, as trustees, under a deed from one Bullock. The facts sufficiently appear from the finding of the court, which is as follows : “ The court finds from the allegations of the parties and the proof adduced herein, that the defendants, by virtue of a deed of trust, executed to them by Edmund J. Bullock, in November, 1852, in Charleston, in Mississippi county, Mo., offered the lands mentioned in plaintiff’s petition for public sale, and at said sale the plaintiff bid the sum of $1200 25 for said land, and that, being the highest bidder for said land, the same was struck off to him for that sum. The said lands were offered at said sale to the highest bidder for ready money, such being the terms upon which the defendants had previously given notice by written bills, set up at public places in said county. At said sale the defendant Watkins agreed with the plaintiff that if the plaintiff would make a note, payable at the branch bank of the Bank of Missouri at Jackson, which Albert Brevard might think would be discounted at the first meeting of the directors of the bank, he would take such note for the purchase money of such land. The plaintiff did make a note payable at said branch bank, which said Brevard thought would be discounted by said directors ; and that said Watkins, on the day of the sale, had notice of that fact. Said Brevard was president of said branch bank at the time of said sale, and took said note into his possession by the consent of the plaintiff and the said Watkins. At the time the said note was signed by said White, and the endorsement made thereon, there were blanks upon the face of said note. The clerk of said branch bank, or some other officer of said bank, filled up those blanks, and made said note payable at the Branch Bank of the State of Missouri at Gape Girardeau. The board of directors did not meet on the first Saturday next succeeding the said sale. Said directors did meet about two weeks afterwards. Said note was not presented to said board of directors for discount. Before said directors met, said Watkins told said Brevard that said note need not be discounted for his benefit; that he would not receive the proceeds because the said money had not been paid according to contract, of which fact the plaintiff, within two or three days afterwards, had notice. After said sale, the plaintiff, by direction of the said Watkins, took possession of said land by his agent. His agent remained in possession about two weeks, and then left said possession, and plaintiff has not had possession of said land since that time. More than one month after the said sale, Mills endorsed in writing on one of said notices of sale, given by said defendants as aforesaid, that said plaintiff was the purchaser of said land at said sale, and also the price for which said land was sold, which endorsement was signed by said Mills. The said defendants, or either of them, never gave the said Mills any instructions to make said endorsement.

      "In the fall of the year 1853 and before the commencement of this suit, the plaintiff tendered to the defendants the purchase money for said land, and what interest was due on the same up to the time of such tender, and the defendants refused to accept the same. As a conclusion of law upon these facts found as aforesaid, the court declared that the plaintiff ought not to recover in this suit.”

      T. Polk, Glover & Richardson, for appellant.
    I. The auctioneer, the sheriff Mills, who made the sale, was, • for the purposes of the sale, the agent of both the parties,' particularly of the vendors, the defendants. (Sug. on Yen-dors, 122, 124.) Advertisement that lands are to be sold at public auction, with the lerms of sale, is a sufficient memorandum in writing to hold the vendor. ■ (Kirby’s Rep. 14.)
    II. Sheriff Mills, being the agent of the respondents, and authorized by them in writing — that is, by Davis by letter, which was assented to by Watkins by his conduct at the sale— had authority to make a written memorandum of the sale, of the name of the purchaser, the amount of the purchase money bid, &c. ; and he had authority to do so, whether the defendant expressly so stated to him or not; and this memorandum in writing was not required to be made at the moment of the sale, but might be made at any reasonable time thereafter.
    III. The delivery of the possession of the land sold to the appellant by the respondent takes the case out of the statute of frauds. (Sug. on Vendors, 135-6.) For the purposes of this case, we say that the plaintiff stands before the court exactly as if he had fully paid the purchase money. The plaintiff had done all that he could do, and the defendants had refused to take the proceeds of the note when discounted. This is equivalent to performance for the purpose of maintaining this action. (Pond v. Wyman, 15 Mo. 175.) In this case, therefore, we have what is equivalent to performance ; that is, payment of the purchase money by the plaintiff, and a delivery of possession of the premises to him by the defendants.

      E. Bates, for respondent.
    Specific performance is strictly equitable. It lies in the discretion of the court, and is never granted unless where the contract, being fully and fairly stated, is seen to be, on a proper consideration, reasonable and just in itself, and mutual between the parties, and all the parties in interest are made parties to the suit, so that a decree may be rendered with perfect justice to all concerned. (8 Mo. 374; McMurtrie v. Barnette, Harr. Ch. 124 ; Lewis v. Woods, 4 How., Miss., 86 ; May v. Fenton, 7 J. J. Marshall, 306.)
    II. The finding negatives the contract alleged in the petition, by showing that the sale was for cash and not for a note; by showing that the defendants did not agree to receive a note in payment instead of cash ; by showing that in fact no note was received by the defendants in payment for the land; by showing that the defendants acted as trustees of Bullock, and consequently could not depart from the terms of the deed of trust, which required a cash sale ; by showing that Bullock is a party in interest, and ought to be a party to the suit; and by showing that the case is not only destitute of all equity for specific performance, but that the plaintiff has no cause of action at law or equity.
   Soott, Judge,

delivered the opinion of the court.

As there is nothing in the record indicating the point on which the decision of the cause was made to turn in the court below, we will consider those objections which have been urged against it by the appellant.

It is insisted that the sale was not invalid by the statute of frauds, first, because the written notice of it, published before it took place, was a sufficient note or memorandum in writing to satisfy the requirements of the statute. In support of this position, the case of Hobby v. Finch & Knapp (Kirby, 14) is referred to. The judgment in that case was not unanimous. The caso was an early one, and yet stands alone. The statute says “ the agreement, or some note or memorandum thereof, shall be in writing.” Now we do not see how a written notice of a sale can be said to be an agreement, or a note or memorandum of an agreement. At most it is but tbe expression of an intention to sell, and is tbe sole act of tbe owner of tbe property.

Secondly, it is maintained that the auctioneer being the agent of both parties, bis memorandum of the sale was sufficient to take it out of tbe statute ; that tbe law does not require this memorandum to be made at tbe moment of tbe sale, but that it may be made at a reasonable time thereafter. There is no doubt that at sales by auction, tbe auctioneer is regarded as tbe agent of both parties, and his memorandum of tbe sale, made at tbe time, is sufficient within tbe meaning of tbe statute. In tbe case before us, tbe memorandum of tbe sale was not made by tbe agent who conducted it until some month or more after tbe sale bad taken place, and that too after this controversy bad arisen. It is obvious that if a memorandum, made under such circumstances, satisfies the statute, then all sales at auction may be taken out of its provisions. Would it not be much safer to tbe parties to have tbe agent introduced as a witness, and sworn to tbe terms of tbe agreement, than that be should sign a memorandum of it some month or more after it bad been made ? It is clear that tbe memorandum must be made within such time as shows it to have been a part of tbe transaction. Kent says, tbe writing tbe highest bidder’s name in tbe memorandum of tbe sale by the auctioneer, immediately on receiving bis bid and knocking down tbe hammer, is a sufficient signing within tbe statute of frauds, so as to bind tbe purchaser. Tbe auctioneer is tbe agent to make tbe sale. On what principle can his authority be prolonged for a month after tbe sale ? If it can be extended for a month, why not for an indefinite length of time ? Why not bring him into court and let him make tbe memorandum there and swear to its truth ? Tbe law will not let him prove tbe agreement by bis oath. Will then this written statement of tbe terms of tbe contract be sufficient ? This involves tbe law in the absurdity of taking tbe unsworn statement of a witness for tbe sake of avoiding perjury. As tbe agent only bad authority to make tbe sale, tbe making of the memorandum, in order to be a valid act, must be in such time after as shows it to be a part of the transaction.

In the third place, it is contended that the delivery of the premises sold into the possession of the plaintiff was sufficient to take the case out of the operation of the statute. In the case of Bean v. Valle, (2 Mo. 109,) Judge McGirk says: “ I understand the possession should be delivered, and the object and the reason of the delivery should be clearly made out to have been in pursuance of the agreement.” In the case of Chambers v. Lecompte, (9 Mo. 569,) it is said, the principle upon which part performance takes a ease out of the statute is, that it would otherwise make the statute a means of practicing a fraud, and therefore nothing is now considered as a part performance which does not put the party into a situation which is a fraud upon him unless the agreement is performed. The ordinary illustration of the principle is the case of a ven-dee by a parol agreement put in possession. If the agreement be not valid in law nor equity, he is a trespasser and liable to an action. As a matter of defence, it is held that he can, under these circumstances, show the parol agreement by which he acquired possession, and the unwritten agreement being admissible for this purpose, is admissible throughout.” This case is brought here on a refusal to review the facts as found; consequently we are at liberty to look into the evidence in relation to the alleged delivery of possession, and after an examination of it, we are clearly of the opinion that it furnishes no ground for saying that the plaintiff is in such a situation that it would be a fraud upon him unless the agreement is carried into effect. The witness, who testifies in relation to the delivery of possession, states, in answer to an inquiry made by the plaintiff of one of the defendants as to the time when he would get possession, he was directed to go and take it, and was informed that he would be defended in it. The witness, who it seems was a partner with the plaintiff in the purchase, although he afterwards released his interest, went to the land and found one in possession of it, who was cultivating some potatoes, and wbo was bought out, and a tenant put into possession, who only continued two or three weeks on the land, and then abandoned it. Soon after this, the witness discovered another tenant on the land, but under whom or by what authority he entered he did not know. He was not the tenant of him or his partner, the plaintiff. Now, if evidence like this is sufficient to take a case out of the statute, then the statute is of very little use. The whole thing seems to have been a concerted scheme, planned with a view to obtain a pretext for an answer to a plea of the statute of frauds. If the possession was an object, why quit it so soon after it was obtained ? How unlike this is to the case of a purchaser who is put into the possession of premises sold by an unwritten agreement, who, when afterwards called upon to defend his possession, offers the verbal contract as a justification of it. There is nothing in the evidence which shows that the plaintiff will be in a situation which is a fraud upon him, unless the agreement is performed.

Independently of the foregoing considerations, there are obstacles in the way of granting the relief sought, which can not be surmounted. Bullock, the grantor in the deed of trust, has an interest in this controversy. He was not made a party as he should have been. He is entitled to the surplus after payment of the debt secured by the trust. He required, by the terms of the deed creating the trust, that the land should be sold for cash in hand. The plaintiff claiming under that deed must be presumed to be cognizant of its contents. With what face can he ask a court of equity' to enforce a contract, made in violation of the express terms of the deed under which he claims ? So far from the land being sold for cash in hand, the arrangement for the payment of the purchase money has resulted in this protracted litigation, to the prejudice of the residuary cestui que trust in the deed. Although the plaintiff has failed to give him an opportunity of asserting his rights, by omitting to make him a party to the suit, yet his interest can not be overlooked. The law will not compel his trustees to violate their trust, and then turn him around against them for redress, especially in favor of one whose claim is founded on a promise to violate a trust of whose terms he had full knowledge.

There is another consideration arising in this case which can not be overlooked. Davis, -one of the trustees, is a party to this suit, and he insists on the defence growing out of the circumstance of his non- concurrence in the acts done by his co-trustee. He insists that he neither concurred in the arrangement by which cash in hand was not to be received for the land sold, nor did he give his consent that the plaintiff might enter into the possession of the premises. It is a general rule that trustees have equal power, interest and authority with respect to the trust estate. They, can not, therefore, act separately; but they must all join in any sale, lease or other disposition of the trust property, and also in receipt of money payable to them in respect of their office. (Hill on Trustees, 305.) It is true that the deed gave the trustees authority to act separately or jointly in making the sale. But it seems they elected to act jointly, and accordingly gave notice of the sale in their joint names ; and having so made their election, it was not competent for one of them afterwards to deny the authority of his co-trustee, and act alone. There may be cases in which the concurrence of a co-trustee might be presumed, but there is no room for it here in the face of the answer of Davis. This being a bill for specific execution of a contract, the reasons addressed to the consideration of the court by the defendant Davis are sufficient to induce a denial of the relief sought.

Judge Byland concurring,

the judgment will be affirmed.


source: Caselaw Access Project

author: RylaNd, Judge,

license: Public Domain

text:
    Flemm, Respondent, v. Whitmore, Appellant.
    1. The practice act of 1849 does not apply, except the 25th article, to proceedings in justices’ courts.
    2. It is erroneous, in a case appealed from a justice of the peace, for a circuit court to strike out on the trial two of several plaintiffs; there must he a recovery in such a case in the names of all the plaintiffs, or of none.

      Appeal from, Jefferson Circuit Court.

    «#. Green, for appellant,
    cited Practice Act, art. 11, secs. 5, 6; Sautier v. Kellerman, 18 Mo. 509 ; Practice Act, art. 30, section 6 ; R. 0. 1845, sec. 5 ; Ohauvin v. Labarge, 1 Mo. 556.
    Pipkin, for respondent,
    cited Practice Act, art. 11 secs. 5, 6; Greeves v. McAllister, 2 Binney, 591 ; Doty v. Wilson, 14 Johnson, 278 ; note to Depeau v. Waddington et ah, Amer. Lead. Oases.
   RylaNd, Judge,

delivered the opinion of the court.

This was a suit brought by Elemm and two others in a justice’s court against Whitmore. There was a trial, and verdict, and judgment for the plaintiffs. Defendant appealed to the Circuit Court. In the Circuit Court, on the trial of the case, it appeared that the plaintiffs, Elemm, Erederici, and Pipkin, were three of a committee consisting of five, to employ counsel to defend a law suit. The defendant was not a party to the suit; but it appeared in proof that, after the counsel had been employed, the defendant said to Elemm, one of the three plaintiffs, that he would pay his proportion of the fee. The court allowed the proceedings to be amended, after the proof was in, by allowing the names of the plaintiffs Erederici and Pipkin to be stricken out, and the judgment to be rendered for the remaining plaintiff, Elemm. The trial was by the court without a jury. The defendant asked the following instruction: “The counsel of the defendant ask the court to declare the law to be, that if the defendant was not a party in the suit of the Bollinger Heirs v. Soulard and others, and did not promise-to- pay the committee who employed counsel in the defence of said case, then there was no legal liability resting on him to pay any part of said counsel’s fees, unless he expressly'promised said committee, prior to their engagement of said counsel, to pay his proportional part; and any promise to said committee, made after they had engaged couns 1, is not binding, unless such promise was made by defendant, and put in writing and signed by him.5’ This the court refused to do, and the defendant duly excepted, and saved the point. It appeared in evidence that, although the defendant was not included as one of the defendants in the suit by the Bollinger Heirs v. Soulard and others., yet he was interested in the event, because he owned about four hundred acres of land depending on the same title as that of the other defendants.

This judgment is erroneous. The statute of 1849, commonly called the practice act, does not apply to proceedings in the justices’ courts, except the 25th article — “ the examination of witnesses.” Therefore, in this ease, the recovery must have been in the names of all the plaintiffs or of none. The ¿Hrcuit Court could not strike out half or two-thirds of the plaintiffs and let the remainder recover. There is no law warranting such a course.

In regard to the declaration of the law as prayed for by the defendant, this court is of opinion that the proposition contained in the first clau-se of the instruction is correct, and that in such case the promise is voluntary. But we also think that that promise, if made to the plaintiffs, or either of them, to pay the debt they had contracted, was not wiihin the statute. Such promise is not “ to answer for the debt, default or miscarriage of another person.” Let the judgment be reversed;

the other judges concurring.


author: LEONARD, Judge,

text:
    Hunt, Appellant, v. Johnston and others, Respondents.
    1. A breach of a voluntary promise, made to a party defendant to a suit, to continue the cause until the next term of the court, by taking judgment against such defendant immediately and issuing execution, and seizing his property, it not appearing that he was thereby deprived of any defence to the action, or that he had any defence, will not give to such defendant a cause of action.

      Appeal from Jefferson Circuit Court.
    The facts stated in the petition, a demurrer to which was sustained, sufficiently appear in the opinion.

      Beal and Perryman, for appellant,
    cited Brightley’s R. 36'; 15 New Hamp. 396 ; 6 Watts, 306.

      M. Frissell, for himself and other respondents,
    cited Hunt V. Simonds, 19 Mo. 583.
   LEONARD, Judge,

delivered the opinion of the court.

The substance of the allegations in this petition are that the plaintiff and Johnston were indebted to Casey, who had sued them in the Washington Circuit Court, and that at the return term of the writ, Frissell, who was counsel for both Casey and Johnston, together with Johnston and his counsel Pipkin, promised him that the cause should be continued until the succeeding term, and afterwards, in his absence, took a judgment against him at the same term, and sued out execution thereon to a distant county, and that he was thereby put to great trouble and expense in procuring money to pay the debt and save his property from execution. It is not alleged that the plaintiff was deprived of any defence he had to the suit, or indeed that he had any defence to make, nor but that it was a just judgment against him; but the ground of complaint is, that these defendants voluntarily promised him another term’s delay in the collection of the debt, and afterwards violated their promise, by which he was deprived of the advantage he would have enjoyed had they kept their word.

We have nothing to do with the moral propriety of the defendant’s conduct, but certainly these facts do not subject them to any legal liability to the plaintiff. The petition, it is true, charges that the defendants conspired together to injure him, and did the acts complained of to carry out their evil design. The gist of the action however is, not the conspiracy, for that need not be proved, but the alleged unlawful acts done pursuant to it, and the damage that resulted therefrom to the plaintiff. (Hunt v. Simonds, 19 Mo. 588.) The parties were under no legal obligation, no matter what moral restraints they may have imposed upon themselves to refrain from taking the judgment at the first term, according to law, and the present plaintiff was not thereby deprived of any legal right, or subjected to any damage for which he can demand redress in a court of justice. The judgment must be affirmed.


author: Scott, Judge,

text:
    Dreyer et al., Respondents, v. Ming, Appellant.
    1. A. claiming to own land belonging to B. sells timber on said land to C., who cuts and removes the same : held, that A. may be held liable to B., as a principal trespasser, for the timber so cut and taken away.

      Appeal from Franklin Circuit Court.

    This was an action in the nature of an action of trespass, for wrongfully and without leave entering upon the land of plaintiffs, and cutting and carrying away timber, &c. The answer, after denying the facts stated in the petition, sets up an ownership of the land in defendants. It appeared in evidence on the trial, that plaintiff had a patent for the land from the United States ; that timber had been cut on the land for railroad ties by one Richard Crews ; that said Crews had purchased the right to cut and carry away said timber from defendant, who claimed to have a tax title to said land ; that he had paid to defendant $420 for ties so cut and carried away. The court, upon the motion of plaintiff, gave the following instructions : “ 1. If the jury find from the evidence that defendant Ming sold the timber, for which the action is brought, to Crews, and that Crews, after such purchase, proceeded to commit the trespass under the purchase from Ming, they will find for the plaintiff. 2. If the jury find that Ming, claiming to be the owner of the land on which the trespass was committed, and as such owner, sold the timber to Crews, who took and carried away the same, they will find for plaintiff the value of the timber so taken by Crews.”
    The court refused the following instructions asked by defendant: £< 1. If the jury believe from the evidence that Crews purchased of Ming his right to the timber on the land in controversy, being willing to risk Ming’s title, and that, under the belief that his right was good, committed the trespass complained of, he alone is responsible for the trespass and not Ming, and they must find for the defendant. 2. The jury, in order to convict Ming of the trespass complained of, must believe from the evidence, either that Ming was the actual trespasser, or that Crews was his agent, or that the trespass was committed by the counsel, advice, instigation, or procurement of Ming, and unless they so believe, they must find for the defendant.”
    Exceptions were duly taken. The jury gave a verdict for plaintiff.

      JV“. Holmes, for appellant.
    I. The trespass must be proved to have been committed by the defendant, or by his orders, or at his instigation. The same rule prevails in civil actions for trespass as in criminal .proceedings for misdemeanors. (1 Archb. N. P. 418, 424 ; 2 Greenl. Ev. sec. 621.) It is not a case of agency, or of master and servant, but of a man standing on his own right, acting for himself and on his own personal responsibility. Crews was liable for the trespass. There was no evidence that the defendant ordered, instigated, or advised the trespass.

      Say, for respondent.
    I. By the act of selling the plaintiff’s property, Ming assumed control over it, and, by receiving compensation for the trees cut, he virtually directed the trespass to be committed ; and it is a well settled principle of law, that any unlawful interference with,- or exercise of control over, the property of another, is sufficient to subject the party to an action of trespass. (8 Wend. 613 ; 12 Wend. 89 ; T Cowen, 735 ; 10 Mass. 125 ; 7 Mo. 175; 2 Black. 892.)
   Scott, Judge,

delivered the opinion of the court.

There is no doubt that it is a general rule that all persons who order or procure a trespass to be committed, and indemnify others for doing it, or incite them to do it, may be sued as principals. The defendant, Ming, had no right to the timber, and he could confer no right to it on another. By the act of conveying the timber of the plaintiffs, the defendant asserted a right of control over it, and in receiving the money for the ties after they had been cut, he adopted the trespass as an act done for his own benefit. The principle has been frequently recognized, that any unlawful interference with, or assertion of control over, the property of another, is sufficient to subject a party to an action. (Phillips v. Hall, 8 Wend. 613.) The defendant, by undertaking to dispose of plaintiff’s property, was the moving cause of the injury sustained by the plaintiffs. This case is similar to that of Wall & Wall v. Osborne, (12 Wend. 39,) where a party sold a mill sta icling on the lot of his neighbor, and appointed a day for the purchaser to take it away, promising to aid him in its removal, if it was necessary, and the mill was subsequently t'ken down and removed by the purchaser ; and it was held ¡hat the vendor was liable to an action of trespass, although there was no proof of his being present or aiding in the removal of the building. The court said : “ To render one man liable in trespass for the acts of others, it must appear either that they acted in concert, or that the act of the individual sought to be charged ordinarily and naturally produced the acts of the others.” In Scott v. Shepard, (2 Black. 892,) De Grey, C. J., laid it down as a correct principle, that one who does an unlawful act is considered as the doer of all that follows. In the language of Lord Ellenbo-rough, in Leame v. Bray, (3 East, 595,) he is the causa causans, the prime mover of the damage to the plaintiff’. In the case of Morgan v. Varick, (8 Wend. 587,) it was held that a disseizee, after recovering possession, may maintain trespass against the disseizor, or his servants, or a stranger acquiring title from the disseizor.

The plaintiff having a patent P-- r the land on which the timber grew, the cases of Green v. Liter, (8 Cranch, -;) Cook et al. v. Foster, (2 Gilman, 656,) and Gale v. Davis, (7 Mo. 544,) show th4t, although not in the actual possession and occupation of it, they were entitled to maintain trespass against wrongdoers.

As the case turns wholly on the point whether the sale of the timber by the defendant to Crews made him a trespasser, and as the court so instructed the jury, and they found accordingly, there was no error in refusing the second instruction asked by the defendant, 'i he law relative to th ■ matter of the first instruction had been previously given to the jury.

It is well settled law that the owner of property may, after he has conveyed it away, maintain trespass for injuries done prior to the alienation. (Viner, tit. Trespass, 475.) The other judges concurring, the judgment will be affirmed.


text:
    Tong et al., Appellants, v. Matthews et al., Respondents.
    1. The measure of damages in an action on a covenant of warranty is the purchase money with interest.
    2. The fact that a recorder may have entered of record in his office deeds of conveyance of lands subsequently sold and conveyed by himself, raises no presumption that at the time of his own conveyance he was aware of a defect in his title.

      Appeal /rom St. Frangois Circuit Court.

    The facts sufficiently appear in the opinion of the court.
    Jfoell, for appellants.

      Frissell, for respondents.
   Scott, Judge,

delivered the opinion of the court.

This is an action of covenant for a breach of warranty on the sale of lands. The measure of damages assumed by the court was the purchase money paid with interest. This has always been understood to be the rule as to damages in such actions in this state. (Tapley v. Labeaume’s Exec’r, 1 Mo. 393; Martin v. Long, 3 Mo. 391; Dunnica v. Sharpe, 7 Mo. 71.)

An attempt was made to increase the damages by showing that the vendor was guilty of a fraud in not disclosing his knowledge of a want of title in himself. The cause was tried by the court, and the fact of fraud was negatived by its finding. We are entirely satisfied with the finding of the court. The fact that the vendor, as recorder, had copied deeds in which the land warranted was conveyed, together with many others by a third person, was very slight, if any evidence, of knowledge of a defect in his title. Miserable would be the condition of recorders, if they were required at their peril to take notice of and bear in mind the contents of every deed they copied. The, weight of such evidence would be determined .by circumstances. Here, it has been considered by the court, and we see no reason for disturbing the finding. The other judges concurring, the judgment will be affirmed.


author: RylaND, Judge,

text:
    Clark, Respondent, v. Conway, Appellant.
    1. Clark v. Maguire, 16 Mo. 302, affirmed.
    2. It is not sufficient to object generally that testimony offered is illegal and incompetent; some specific objection to its admission should be pointed out.

      Appeal from, SL Louis Court of Common Pleas.

    The facts of this case sufficiently appear in the opinion of the court, and in the report of the ease of Clark v. Maguire (16 Mo. 302). Upon the trial, the following instruction was given to the jury, on the motion of plaintiff: “1. The burden of proving the defence of fraud rests upon the defendants.” The court, on its own motion, gave the following : “ 2. If the jury find from the evidence that the creation of the trust set up and shown by the plaintiff was contrived for the purpose of protecting the property, profits or earnings of Dennis Marks from his creditors, or for the purpose of hindering or delaying them in the collection of their demands against said Marks, and that the property in question was the property of said Marks, or acquired by him from his profits or earnings, then the jury should find for the defendant.” The court gave the following instructions on the motion of the defendant: “ 8. The fraud charged and set up by the defendant in this case is a question of fact for the jury, and they are to determine it from all the facts and circumstances given in evidence, and fraud may be proved by circumstances, as well as by positive testimony, or by both. 4. To entitle the plaintiff to recover in this action, he must show in evidence, to the satisfaction of the jury, that the property in question is the same, or a part of the same wheat and flour that was conveyed to him by the deed read in evidence, dated July 2, 1847, or that the propeity in question was purchased with the money or with the proceeds of the property that is mentioned in said deed, and the burden of making this proof rests with the plaintiff. 5. If the jury believe from the evidence that the property in question was in the possession of Dennis Marks at the time the same was levied upon under the execution in favor of Maguire, then the jury should find for the defendant, unless the jury shall at the same time believe from the evidence that the said property was purchased with the 'money or property that was conveyed and assigned to the plaintiff, under the deed made to him by J. H. Alexander, read in evidence, and the burthen of proving that the property in question in this suit was so purchased rests on the plaintiff.” •
    The following, prayed by defendant, were refused : “1. If the jury find from the evidence that Dennis Marks purchased and paid for the wheat that was levie ’ an by the defendant, and also that he purchased and paid for the wheat from which the flour that was levied upon was manu actu '0<', and that said Marks m.n factored the our that wa' 'evied upon, and that both the wheat and the flour that was levied upon was in Mark’s possession at the times of such levy ; and if the jury also find from the evidence that the sa ! wheat levied rpon, rnd the wheat out of which the flour levied upon was manufactured, were purchased by said Ma •! s with the money or the proceeds of the property conveye ■* and assigned to the plaintiff by the deed read in evidence, dated July 2,1847 ; and if the jury shall also find from the evidence t ■, t Amira Marks, the wife of Dennis Marks, either placed said money or said proceeds in the hands d under the control of said Dennis Marks, or conseñted that sai 1 money or said proceeds should be placed in the hands and under the control of her said ¡ usband, then the jury should find for the defendant. 2. Tre money mentioned in the deed from Alexander to Clark, which is dated July 2, 1847, which money amounted, according to toe íe-ital of said deed, to the sum of $8,291 96, belonged to Dennis Marks by virtue of the limitations contained in the deed from H, D. Bacon to J. H. Alexander, dated 17th July, 1846 ; and if the jury believe from the evidence that the flour spoken of by the witness for the plaintiff was manufacture-! from wheat purchased wi'h that money or its proceeds, or that the wheat seized by the sheriff was purchased wi h said money or its proceeds, then the plaintiff can not recover in this action. 8. If the jury find from the evidence that Dennis Marks got into his possession and under his contool the money and personal property that was conveyed and assigned under the deeds read in evidence for the benefit and use of his wife, Amira Marks, and her children, and if she consented to his having such possession and control, then all the right and interest which said Amira Marks had in the money and personal property that was so in the possession of said Dennis became his, and consequently subject to be seized on execution against him. 4. If the jury believe from the evi-deuce that the creation of the trust set up and shown by the plaint was contrived and created for the purpose of protect-’ ing the property, profits or earnings of Dennis Marks from his creditors, or for the purpose o hinder > 'el ? ing them in the collection of their debts against said Marks, then the jury should find for the defendant.55 Exceptions were duly taken.
    The jury found a verdict for plaintiff. A motion for a new trial having been overruled, defendant appealed to this court.

      Krum & Harding, for appellant.
    I. The court below improperly admitted in evidence the deed purporting to have been made by J. H. Alexander to plaintiff. Alexander had no authority or right to make said deed; the plaintiff in his petition does not claim or set up a special property in the wheat and flour sued for, but sues in his own right and as having a general property in the subject matter of the suit; the said deed, th ■ efore, was not competent testimony under said petition. The execution of the deed was not proved. The recitals in the deed were not evidence of the facts therein stated. The execution of the power of attorney was not proved, and it was not therefore competent testimony in the case.
    II. The instructions asked by the defendant, which were overruled, should have been given to the jury. 1 here was evidence both positive and presumptive, that Dennis Marks, with his own means and credit, purchased the wheat in question and manufactured the flour therefrom ; there was evidence also that Mrs. Marks consented that the money and property secured to her by the deeds of trust should go into the possession of her husband ; and that it did go into his possession and control, there was no question. It was entirely competent for her to make such disposition of her money and property.

      R. M. Field, for respondent.
   RylaND, Judge,

delivered the opinion of the court.

The principal points in this case were heretofore settled by this court in the case of Clark v. Maguire (16 Mo. 302). The construction of the various deeds and powers now again presented was had in that case. We are fully satisfied with the correctness of the principle laid down then by this court.

So far as new points have arisen, we will now consider and settle them. First, as to the admission of the deed from Alexander to the plaintiff. The appellant contends that the execution of this deed was not proven. Now, in looking over the record, we find that the defendant below, the appellant here, made objections to the assignment made by Henry D. Bacon on the lease from William M. Tompkins to said Bacon, which had been read in evidence, “ on the ground that the same was illegal and incompetent ;” made also the same objection to the deed signed by J. H. Alexander, Amira Marks and Luther C. Clark, “ on the ground that the same was incompetent and illegal testimony;” made also the same objection to the power of attorney of Amira Marks and Luther C. Clark to Dennis Marks, “ on the ground that the same was illegal and incompetent testimony.” Before this court the appellant specifies the objection, and contends that the execution of the deed and power of attorney was not proven. • The objection can avail nothing in this court. Its generality is fatal to it. We will give no countenance, no ear, to an objection made for the first time in this court, when, if it had been made below, it could have been immediately obviated by proof. The decisions of this court, for many years, sustain this view. The party objecting to the admission of a deed, power of attorney, or other instrument of writing, during the trial of a cause in the lower courts, must point out the specific objection ; “he must put his finger on it,” in the language of some of the courts, so that the court below can at once see it, and the adverse party have the opportunity of obviating it by means in his power then present; and if such objection, specific and pointed, be not made below, it shall avail nothing here. The objection is “ on the gi’ound of being incompetent and illegal evidence”— no more specific than to say, “ I object to the evidence.” It was the duty of the objector to say why and for what reason it was incompetent — why, and for what cause, illegal. The proof of execution, in all probability, was at hand, and therefore the want of it not pointed out below. But it matters not whether it could have been obviated, if made below or not; the party intending to rely on it must not content himself with a general objection below, and then make a special, pointed objection for the first time in this court. So much for this point. It is ruled against appellant.

The instructions given by the court, especially the one on its own motion, and those on the defendant’s motion, put the law of the case fairly before the jury, — indeed the defence, under these instructions, went to the jury with its full strength. There is no error committed in refusing those which the court did refuse to give on defendant’s motion. We consider the law of the case properly settled, when first before us, as reported in 16 Mo., in regard to the various deeds and instruments of writing. The instructions put the law arising on the proof before the jury in this case fairly before them, giving the full benefit of the defendant’s defence. With their verdict the lower court was satisfied, and we see no sufficient reason to reverse it. Let it be affirmed ;

the other judges concurring.


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    Sayre, Appellant, v. Tompkins, et al., Respondents.
    1. There is no equity to restrain by injunction the collection of a school (ax, the assessment of which is illegal and void.
    2. In order that a neighborhood, situated in two or more townships, may be formed into a separate school district, under section 8 of article 4 of the act of February 24th, 1853, (Sess. Acts, 1853, p. 160,) a majority of the inhabitants of the proposed district should unite in the application to the school commissioner.

      Appeal from, Lewis Circuit Court.

    Plaintiff sought in this action to restrain Tompkins, constable, &c., from selling certain personal property of plaintiff under an assessment of a school tax, claimed by plaintiff to have been illegally made and void; also to restrain the trustees of the school district, who are xnado parties defendant, from taking any steps against plaintiff to collect the said tax. The cause was tried by the court without^a jury, and the injunction was dissolved. The finding of the facts by the court is as follows: “ A neighborhood composed of portions of school townships No. 2 and No. 5, on the 25th day of February, 1854, applied to Philip Deinmett, the school commissioner, to be formed into a separate district. Within the metes and bounds of said neighborhood there resided eighty-one qualified voters, of whom nineteen united in making the application. Said commissioner appointed a time and place for holding meetings in each of said townships, and gave notice thereof. Meetings were held in each of said townships, and a majority of the qualified voters, assembled at said meetings, consented to the formation of the proposed district; that afterwards, to-wit, on the 29th day of July, 1854, at a meeting of the qualified voters of the district, thus formed, a majority of the qualified voters of said district voted to raise the sum of twelve hundred dollars for the purpose of purchasing school-house, &c. ; that the said A. D. Steinmett, J. D. Million, and N. C. Staples, the trustees of said district, on the 31st day of July, 1854, assessed the taxes on the taxable property of the inhabitants of said district, and issued a warrant for the collection thereof, directed to the constable of Dickerson township, and directing said constable to collect the tax so assessed ; that said constable levied said warrant upon the property of the plaintiff, as stated in his bill. Upon the above finding, it is ordered, adjudged and decreed by the court that the injunction in this cause be dissolved,” &e.

      T. Polk, for appellant.
    I. The power to levy and collect a tax, as claimed in this case, being derived exclusively from a special statute, that statute, in all its requisitions, must be strictly pursued. (Morton v. Reed, 6 Mo. 64 ; Reed v. Morton, 9 Mo. 868.)

      II. In order to form a neighborhood, composed of two or more townships, into a school district, at least a majority of the qualified voters of such neighborhood must make application to the school commissioner of their county for this purpose. (Sess. Acts, 1853, p. 160, art. 4, sec. 8.) But here the court expressly finds that within the metes and bounds of this neighborhood there resided at the time eighty-one qualified voters, of whom, however, only nineteen united in making the application for the establishment of the school district.
    III. No legal notice was given for the time and place of meeting for each township composing a part of the proposed district. The finding of the court, in this case, does not show that any such notice as is required was ever given. On the contrary, it shows that the application for the establishment of the new district was presented to the school commissioner on the 24th of February, 1854 ; but it does not show when or how the notiee was served, nor how long before the time fixed for the meeting, nor what time was fixed for the meeting, nor when the meeting was held.
    IY. The court below does not find that appellant was an inhabitant of the district, nor that he had any taxable property within said district. And unless such were the case, it was against law to seize upon his property or to issue a warrant against him. (Sess. Acts, 1853, p. 160, sec. 7; id. p. 161, sec. 4.) The finding, therefore, does not embody facts sufficient to support or warrant the judgment.
   LEONARD, Judge,

delivered the opinion of the court.

The relief here sought was by injunction to restrain the defendant from selling the plaintiff’s personal property under an assessment of school taxes, made by the proper school district authorities. This is not a proper case for equitable relief. If the assessment be void, as alleged, it will not protect the officer, nor will a sale divest the plaintiff of his property. The wrong can be fully compensated for at law. It is not in any sense an irreparable injury, and no reason exists for transferring the jurisdiction over sucb cases from law to equity. There is as yet no authority of this court, that we are aware of, to warrant this relief, and we are not disposed to make one by sanctioning the present proceeding.

In relation, however, to the merits of the case, as they have been argued in the briefs and the parties may desire our opinion, we remark that, under the then existing law, it tras necessary to authorize the formation of a neighborhood into a new school district, that a majority of the inhabitants of the neighborhood should unite in a petition to the commissioner to take the proper steps for its organization. The statute, we think, required the consent of each of the three communities to be affected by the proceeding, and it was not enough that a majority of the inhabitants of the two existing districts consented, but it was also necessary that a majority of the proposed new district should also concur by uniting in the petition to the commissioner for that purpose. IE this were otherwise, a majority in each of the existing districts, with the consent of a minority of the proposed district, might constitute a neighborhood into a school district against the wishes of a majority of the neighborhood, which, we think, was not the intention of the legislature.

But the district, although irregularly formed, may perhaps be considered as existing de facto, and, if so, the question would be as to the effect of the assessment made under such circumstances. This is a question of some importance in principle, although we presume of no practical importance in the present case, as the parties will most probably remedy the irregularity by new proceedings for that purpose, rather than press the collection of the tax assessed under the present circumstances. Besides, the question has not been raised in the argument of the cause, and we shall therefore refrain from deciding it. We may remark, however, that in New York, in the case of Stevens v. Newcomb, (4 Denio, 438,) it was held that it was not necessary to go through all the steps to show that the districts had been duly organized, and that it was enough to show that they had in fact been organized, and had. acted as regular school districts for several years. The judgment is affirmed;

Jndge Ryland concurring.


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    Smith, Respondent, v. Schneider and others, Appellants.
    1. A., having purchased real estate at a partition sale, paid a portion of the purchase money, and gave bond, with B. as security, for the residue ; C. purchased at sheriff’s sale all the interest of A. in the land; A., not having paid the residue of the purchase money, B. was compelled by suit to pay the same 5 A. had received no deed for the land : held, that by the payment of the residue of the purchase money, B. became subrogated to the right of the original owners, and might subject the land in the hands of C. to the payment to himself of the money so paid by him.

      Appeal from Ste. Genevieve Circuit Court.

    This -cause was decided on a demurrer to the petition. The petition set forth substantially that at a public sale in partition on the 17th of May, 1853, one Simms became the purchaser of certain real estate ; that, in compliance with the terms of jhe sale, he paid ten per cent, of the purchase money and gave his bond to the sheriff for the. residue, about ninety-two dollars, with Smith, the plaintiff, as his security, the bond being payable in twelve months ; that the bond not being paid on its maturity, judgment was obtained thereon, and, Simms being insolvent, the plaintiff, Smith, was compelled to pay said judgment, &c. ; that since the purchase of Simms, the defendant Schneider had become the purchaser at- sheriff’s sale of all Simms’ right, title and interest, and had received a deed from the sheriff; that Simms is insolvent. Plaintiff therefore prays judgment against Simms, who is a party to the suit, for the amount of his debt; also that the land in the hands of Schneider be subjected to the payment thereof. The sheriff was also made a party defendant to this suit.

      The demurrer of defendants was overruled, and judgment given for plaintiff; defendant Schneider appealed.

      J. F. St. James and T. C. Johnson, for appellants.
    I. If the legal title had passed to Simms,- there, would be no doubt in this case. The taking.of security for the purchase money is a complete waiver of any lien upon land. (Gilman v. Brown, 1 Mason, 217 ; Delassus v. Poston, 19 Mo. 480 ;• 1 White’s Lead. Cases in Equity, Am. ed., 273, and authorities cited.)
    II. Even if the lien existed, it could not be enforced against creditors and purchasers without notice. (1 White’s Lead. Cases, 280.) Schneider is a creditor, and by his judgment and execution had both a legal and equitable lien. He is also a purchaser without notice. There is no pretence that he had any knowledge of the lien now set up. The petition does not so charge.
    III. The Circuit Court, on motion, would have compelled the sheriff to make a deed to the purchaser. IE the court would have directed a conveyance, it was the fault of the sheriff that one was not made. Simms had done all he was required to do, and the sheriff should have done hig part by conveying. Equity, however, will always treat a thing as done which ought to have been done. The deed should have been made, and it is for the purposes of this action so considered, and for the reasons first given, the lien is gone.
    J. W. Noell, for respondent.
   Scott, Judge,

delivered the opinion of the court.

Schneider-became the purchaser of Simms’ equitable title at a sheriff’s sale. He took that title with its encumbrances. As Simms could not have obtained a title to the land without paying the balance of the purchase money, Schneider, claiming under him, was in no better situation. He could only get the land by paying the sum he bid for it and the balance of the purchase money. That was the bargain he made when he be-«ame the purchaser at the sheriff’s sale. Smith, being the security of Simms for the purchase money, when he paid it he had a right to be substituted to the equity of the owner of the land, which equity was to hold the title until the purchase money was paid. Now, as Schneider bought the land subject 60 the payment of the unpaid purchase money, and as Smith, the surety of Simms, has paid that money, he is entitled to have the land sold in order that it may he refunded to him.

The doetrine in relation to the discharge of the lien for the payment of the purchase money is not applicable to this case, as the owners of the land had never parted with their title by the execution of a deed>;i.The legal title was in them, and they had an equity to have the land sold for the purchase money,y and Smith, the surety of Simms for that money, having paid for it, is entitled to be substituted in the place of the holders of the legal title, whoever they may be. The other judges concurring, the judgment will be affirmed.


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    Dunklin County, ex relatione, v. The District County Court of Dunklin County.
    1. A writ of mandamus will not lie to correct the errors of inferior tribunals ■by annulling what they may have done erroneously, nor to guide their discretion, nor to restrain them from exercising power not delegated to them ; it will not, therefore, lie to a county court, directing it to vacate an order selling swamp lands to a railroad company in payment of a subscription of ■stock, and commanding the county court and afl others to desist from carrying said -order into execution.
    2. The district county court within and for the county of Dunklin had power to transfer alternate sections of the “ swamp lands” of Dunklin county to the Cairo and Fulton railroad company in payment of a subscription to the stock of that company made by said county court.
    3. The trust, created by the acts of Congress of September 28th, 1850, granting swamp lands to the state of Missouri, is a personal trust reposed in the public faith of the state, and not a property trust fastened by the terms of the grant upon the land itself and following it into whose hands soever it may.jiass.

      This was an application for a mandamus in the name of the county of Dunklin by Nathaniel G. Murphy, superintendent of public works in and for said county. The petitioner, after setting forth the grant to the state of Missouri of the swamp lands by act of Congress of September 28, 1850, for the purpose of enabling the state to reclaim them by means of levees ’ and! drains ; also that the state of Missouri had by the act of February 23, 1853, granted to the county of Dunklin the swamp and overflowed lands within its limits, proceeds as follows : “ Your petitioner further represents, that on the 18th December, 1855, the district county court within and for the counties of Dunklin, Stoddard and Butler, a court possessing the jurisdiction of a county court within and for each of said counties, by an order made on that date, at the December term of said court, did prder and direct that the sum of $100,000 be subscribed by the said county of Dunklin to the capital stock of the Cairo and Fulton railroad company, a company duly incorporated by the general assembly of the state of Missouri for the purpose of constructing a railroad, as your petitioner believes, from the town of Fulton, in the state of Arkansas, to a point near or opposite to the eity of Cairo, in the state of Illinois, and did appoint one George W. Mott on behalf of said county ; and the said court did in said order further order and direct that alternate sections of the swamp and overflowed land so belonging to the county of Dunklin, and which had been granted by the United States to the state of Missouri, and by said state to the said county of Dunklin as aforesaid, commencing at the north boundary of said county, and extending thenee southwards, be sold, transferred and conveyed by deed to said railroad company at the price of one dollar per acre, in an amount sufficient to fully pay off the subscriptions to the capital stock aforesaid, making the quantity of overflowed and swamp lands so ordered to be sold,. 100,000 acres. And the said court, by said order, did further appoint the said George W. Mott, agent for and on behalf of said Dunklin county to execute deeds to said railroad company of the said overflowed and swamp lands, in the quantity aforesaid, in payment of the subscription to said capital stock, and to vote thereon on behalf of said Dunk-lin county, as will more fully appear by a certified copy of the order of said district county court hereto annexed and marked exhibit A; and your petitioner further represents that the said Cairo and Eulton railroad is not located upon, nor will the same, as projected, pass through any part of the said county of Dunk-lin ; nor will the said subscription to the capital stock of said company, nor the conveyance of said overflowed and swamp lands in payment of such subscription, as directed by said order, in any manner tend to the reclaiming of said lands or any portion thereof, or to the building of the levees and drains contemplated by the terms of said act of Congress ; on the contrary, your petitioner states that the appropriation of said lands, as directed by the order of said court, is in direct violation of the trust under which the same are held by said county, and contrary to the wishes of a large majority of the inhabitants thereof ; that the said district county court, in directing the conveyance of said overfiowed and swamp lands to the Cairo and Fulton railroad company, acted without authority of law ; that the aet of said eourt is done in bad faith to the government of the United States, and against the interest of citizens of the said county of Dunklin. Your petitioner further says that, at the Mareh term, 1856, of the said district county court for the county of Dunklin, proceedings were had and taken in due form of law to set aside, vacate and annul the order of said court above recited ; that said court then refused and still does refuse to vacate said order ; that the said court, by its officers and agents, is now about to proceed to execute the same in violation of the rights of said county and of the trusts aforesaid, unless restrained by the order of this court. Wherefore your petitioner, for himself and on behalf of the said county of Dunklin, prays that a writ of mandamus may be awarded from this honorable court to be directed to the said district eounty court, commanding said court to show cause, if any it have, why so much of said order made at the December term, as directs alternate sections o£ said overflowed and swamp lands, owned by said county of Dunklin, as described in said order, to be sold and conveyed to said Cairo and Fulton railroad company, in payment of: tbe subscription to the capital stock of said company, a,s well as so much of: said order as appoints the said George W. Mott an agent for and on the part of said county to execute a deed or deeds to said company of said lands in payment of said subscription, should not be rescinded, vacated and annulled; and further, commanding said court to show cause why it, its officers and agents, and particularly the said George W. Mott should not be ordered and directed to desist from further attempting to execute the order of the said district county court; and that, in default of such cause shown, the said writ of mandamus may be made peremptory.”
    Upon this petition an alternative mandamus issued, to which a return was made by Jonas Eaker, judge of said county court. Upon the coming in of this answer, which it is unnecessary to set forth, the relator’s counsel moved for a peremptory writ of mandamus.

      8. Ji. Holmes and Bomyn, for relator.
    I. The grant by Congress to the several states, of the swamp and overflowed lands lying within them, purports to be made expressly for the purpose of enabling them to xeelaim such lands by the construction of levees and drains, and upon the proviso that the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid. The attempt to purchase railroad stock with these lands is an entire misappropriation of the subject matter of the grant, and the only question is, whether the proviso above recited imposes upon the grantee.of the state a duty in respect to the disposition of these lands, the performance of which can be enforced by this process. (9 U. S. Stats, at large, 519.) The act of Congress is not simply a grant coupled with a trust addressed to the conscience of the grantee. It is a grant with legislative provisions as to the disposition of the thing granted. The act of the general assembly of the 24th February, 1853, (Sess. Acts, 1853, p. 187, sec. 32,) and the act of December 7, 1855, (Sess. Acts, 1855, p. 353,) so far as they authorize and direct the conveyance of these lands in payment of subscriptions to railroad stock, before the provisions of the act of Congress shall have been complied with, are mere nullities, and should have been disregarded by the respondent. The county of Dunklin, standing in the place of the original grantee, takes these lands subject to the provisions of the act of Congress, and the district county court, in its capacity of manager of the county property, was bound to observe the act of Congress, and not the acts of the general assembly above mentioned. As to the question of jurisdiction, it may be admitted that these trusts could not be enforced against the sovereign state of Missouri. The moment these lands become vested in a party over whom the court has jurisdiction, it will compel, by any lawful process, the observance of the provisions of the act of Congress touching their disposition. (See Sess. Acts, 1851, p. 238 ; Sess. Acts, 1853, p. 108 ; Sess. Acts, 1855, p. 474.)
    The point that an appeal was prayed, granted and not prosecuted, and that that was the proper remedy, is not well taken. An appeal will not lie from the order of a county court, where the court is acting in its administrative capacity as custodian of the county property. To admit of an appeal, the interest of others must be directly affected by the proceedings of the court. (Overbeck & Shaw v. Galloway, 10 Mo. 364.)

      O. G. Cates, for respondent.
   LEONARD, Judge,

delivered the opinion of the court.

1. The defendants having put, in their answer to the alternative mandamus, we proceed to consider the case as upon a demurrer to it, and the first remark we have to make is that this is not an appropriate remedy for the party, even if he be entitled to relief. The command of the writ is that the Dunklin district county court vacate their order selling to the Cairo and Fulton railroad company 100,000 acres of swamp lands of the county, and appointing a commissioner to make the conveyance in payment of the stock subscription of the county to the road ; and that the court and all others desist from carrying their said order into executionand of course the question is, whether this relief can be had by the writ of mandamus. This court has express authority, under the constitution, to issue this and other original remedial writs, and to hear and determine the same ; but in what cases we may issue them has not been prescribed in the constitution itself, nor by our written law, otherwise than by the adoption of the common law, which defines the class of cases to which they are respectively applicable. The writ of mandamus is in form a command in the name of the state, directed to some tribunal, corporation, or public officer, requiring them to do some particular thing therein specified, and which the court has previously determined that it is the duty of such tribunals or other person to perform. It issues in England^only out of the King’s Bench, the highest court in the kingdom, and was introduced, it is said, in order to prevent disorder from a failure of justice or defect of police, and is therefore granted only in cases when the law has provided no specific remedy, and in justice and good government there ought to be one. It does not lie to correct the errors of inferior tribunals by annulling what they have done erroneously, nor to guide their discretion, nor to restrain them from exercising power not delegated to them; but it is emphatically a writ requiring the tribunal or person to whom it is directed, to do some particular act appertaining to their public duty, and which the prosecutor has a legal right to have done. We could not therefore, by means of this writ, correct the errors or control the discretion of this tribunal in the discharge of an administrative duty, even if we had the power to do so. But the parties have argued the whole matter, and desire our opinion upon all the questions involved ; and as it may be a matter of public interest that our opinion should be known, we shall not withhold it. These questions are, whether, under the several acts of the legislature upon this subject, the district county court had authority to make the sale complained of, and, if the authority was expressly given by these acts, whether it was competent to the state legislature, in view of the trust annexed to the grant, to authorize such a disposition of the property.

2. This district county court was established by the act of 1st March, 1855, (Sess. Acts, 1855, p. 474, 475,) which provided that it should possess all the powers and perform all the_ duties that the respective county courts now possess or may perform in the counties of Stoddard, Dunklin and Butler ;” and by the general law (R. C. 1845, tit. Courts, p. 382, § 15), all county courts have the control and management of the property, real and personal, belonging to the county, and full power and authority “ to sell and to cause to be conveyed any real estate, goods or'chattels belonging to the county, appropriating the proceeds of such sale to the use of the county.” By the act of the 2Sd of February, 1853, (Sess. Acts, 1853, p. 108,) the swamp lands in the counties of Dunklin, Stoddard, Butler, and certain other south-eastern counties, are donated to these counties respectively, upon the terms and provisions of the act entitled “ An act donating certain swamp and overflowed lands to the counties in which they lie,” approved March 3d, 1851 ; and by this act (Sess. Acts, 1851, p. 239) the swamp lands in the other counties are donated to them respectively for the purpose of reclaiming them according to the provisions of the original grant, and for this purpose they are to be sold under the orders of the county courts, and the nett proceeds, over and above what may be necessary to drain them, are made part of the county common school fund ; and under the general railroad law of 1851 (Sess. Acts, 1851, secs. 29, 32) the county courts are empowered to subscribe stock, in behalf of their counties, in railroad companies, and when any county has swamp land under the-grant of the state, the county court is expressly authorized to sell the same in order to pay its railroad stock subscription ; and by the act of 7th December, 1855, (Sess. Acts, 1855, p. 353,) it is made the duty of the county courts of Dunldin, Stoddard and certain other south-eastern counties, whenever a majority of the voters petition them respectively to that effect, to transfer alternate tracts-of their swamp lands to the Iron Mountain or Cairo and Fulton railroad, “ at not less than one dollar per acre, payable in the stock of the company.” Under these several statutes, it is manifest that this county court had authority to dispose of the lands as they have done, and the only remaining question is, whether it was competent for the legislature of this state to authorize such a disposition of them.

3. By the act of Congress of 28th September, 1850, (9 U. S. Stats. 519,) the terms of the grant to the state of Arkansas are, “ to enable the state of Arkansas to construct the neces-. sary levees and drains to reclaim the swamp and overflowed lands therein,” and, by a subsequent section of the same act, it is declared that the provisions of the act are extended to every other state in which such lands may be found. The original grant, made by the state to the counties, was in order to execute this trust, and it is supposed that the trust is fastened upon the lands, so that they can not be disposed of by the state for any other purpose. This, however, is not’correct; the trust reposed by the United States is in the state of Missouri; it is a personal trust in the public faith of the state, and not a property trust, fastened by the terms of the grant upon the land itself, and following it into whose hands soever it may pass. It is proper, however, here to remark, in vindication of the state, that the original grant by the United States contemplates, ol course, a sale of the land, in order to render it available for the purposes of the trust, and it. is not to be supposed that this state will be guilty of a breach of her good faith by applying the stock for which the land is sold to any other purpose, without the consent of the United States. But however that may be, it is a matter exclusively within the control of the legislature. No private rights of property are invaded, and we have no authority to interfere in the execution of the trust.’ The grant of the sixteenth sections in the state of Michigan was to the state for the use of schools, and in Cooper v. Roberts, (18 How. 181,) the Supreme Court of the United States,‘speaking in reference to the validity of a sale of these lands, made under the authority of the state, without the consent of Congress, said : The trusts, created by these compacts, relate to a subject certainly of universal interest, but of municipal concern, over which the power of the state is plenary and exclusive, in-the present instance the grant is to the state directly, without limitation of its power, though there is a sacred obligation imposed on the public faith.” In Long & Long v. Brown, (4 Ala. 622,) the Supreme Court of Alabama decided that a sale of the sixteenth sections, under a law of the state, was valid in point of law, without the assent of the United States, although, in order to preserve the public faith, the legislature had previously procured such consent.

' The judgment on the demurrer is for the defendant, and the peremptory mandamus srefused.