dissenting:
I concede that a county has no power to give away or otherwise dispose of its funds or property for a purpose not authorized by law; but I think, by the clauses in the charter of the Mt. Vernon Kailroad Company, and by the subsequent act validating the election held in Wayne county, and by the general current of contemporaneous statutes, the General Assembly had recognized the purpose of applying swamp lands, and the proceeds of swamp lands, to the procurement for the counties of better railway facilities, as a proper and legitimate purpose. I think, too, that by the provisions of the charter of the Mt. Vernon Railroad Company the county had power to aid in the construction of that road by pledging its swamp lands for the payment of the construction bonds of that company. The reasoning of Mr. Justice Hunt, speaking for the Supreme Court of the United States, in Kennicott v. Supervisors of Wayne County, 16 Wall. 452, is satisfactory to my mind on that question, and I think it ought to control in this case. It is true, as suggested, that the Supreme Court of the United States holds recitals as to compliance with precedent conditions conclusive when bona fide purchasers have acted on the faith thereof, while this court holds such recitals may be contradicted, and all persons must, at their peril, inquire into the fact of the performance of a condition precedent. I do not see that this makes any difference in this case, as I do not find any proof in the record that the recitals alluded to are not in fact true. I am not aware that this court has ever decided that such recitals are not prima facie true, and govern until shown to be false by proof. While this court is not bound to follow that decision, respect for the opinions of that tribunal, as well as public policy, forbids a different decision, unless we are clearly convinced that such decision is erroneous. Our judicial system is so organized that the title to some of the lands embraced in this mortgage can be settled in the Federal courts, while the title to other of these lands must be decided in the State courts. It will be unfortunate if the law is to be held one way for one supposed owner of part of these lands, and another way for another having precisely the same title. It seems to me better to yield slight differences in opinion in order to have uniformity of decision in both courts.
There is another view of this case which to me is equally satisfactory. The General Assembly, by a variety of special laws, had authorized various counties, by one mode or another, to appropriate their swamp lands, respectively, to the purpose of securing to their people, respectively, railroad facilities. The county of Wayne had been, authorized by the provisions of the Mt. Yernon charter, in certain contingencies and under certain limitations, to appropriate its swamp lands, or the proceeds thereof, to aid in the construction of either the Mt. Yernon road, or the Belleville and Fairfield road, or the Alton, Mt. Carmel and New Albany road. Efforts had been made in one or two ways to secure the object sought, but without success. A like experience had attended the efforts of other counties under special statutes. Contracts, in some cases, had been made. Wayne county had a contract with Yanduzer and his associates, but it had not been performed. In this state of affairs the General Assembly passed the general law of February 14, 1859, entitled “An act for the sale of swamp lands.” This act, without withdrawing the legislative sanction which had already been given, in various acts, to the purpose of procuring additional railroad facilities, as a legitimate purpose to which to apply the swamp lands of various counties, and especially those of the county of Wayne, clothed the county court of every county with the unlimited power to sell its swamp lands at public or private sale, for cash or on credit, or for such securities as the county courts, respectively, might think proper to accept, the proceeds to be subject to the order of the county judges, respectively, for such pwposes as the county courts, respectively, might direct. This language is very broad, and can not properly be held to confine the appropriation of the proceeds to ordinary county expenses. It clearly means something more. It must, I think, be held to embrace any and every purpose which by the General Assembly had been recognized as one to which such lands might properly be applied. This, as we have seen, embraces aid to proposed railroads. Lest a narrower view might obtain, the act declares expressly that “this act shall apply to all counties having special laws in reference to the sale of swamp lands, ” and that nothing in the act should prevent any county court from carrying out any contracts then “existing for the disposal of” its “swamp lands.”
This view, to my mind, fully sustains the power of the county court of Wayne county to make the mortgage and trust deed in question. These instruments were made by the county court of Wayne county. The record so shows. It is not competent by oral evidence to attack this record collaterally, by proving that only two of the members of the court acted,—that it was only a casual meeting, without notice to the other. It is a mistake to say that Wilson was at that time a director in the Mt. Vernon Railroad Company. The instruments were made in April, 1859, and the proofs show that he "was not a director until in December thereafter. It will not do to say these mortgages were abandoned, and the lands sold as though they had not been made. The mortgages were recorded. The bonds were sold to bona fide holders, who had no notice of any abandonment. A failure of consideration does not avail under such circumstances.
I think the equities are with the appellant, and that the decree ought to be reversed and the bill dismissed.