i. swamp lands: disposition o£ *. # tion. I. The decision of the court below was evidently based upon the opinion of the Supreme Court of the United States in The American Emigrant Company v. The County of Adams, holding that the legislation oí this State for the disposition of the swamp lands introduced a scheme subversive of the trust imposed upon the State by the act of congress, and is void. Since the decision of the court below a rehearing has been granted in The American Emigrant Company v. Adams County, and a contrary decision has been announced. -It is now held that the legislation of this State, and contracts made in pursuance of it, are valid..
II. The contract between J. P. Casady, county judge, and S. F. Nuckolls, president of the Council Bluffs & St. Joseph Bailroad Company, for the conveyance of the land in question, provides as follows: “That the said party of the first part, for the consideration and object hereinafter named, doth hereby agree with the said party of the second part, to transfer and *458convey -to said party of the second part all of the swamp or overflowed land within said county of Pottawattamie, at the date hereof, and not sold or covered by a bona fide preemption claim.”
The deed of conveyance, executed in March, 1860, contains the following recital:
“Whereas, The undersigned, J. P. Oasady, as county judge of Pottawattamie county, IowTa, did, on the 9th day of January, A. D. 1860, contract in writing with the Council Bluffs'& St. Joseph Railroad Company for. the transfer and conveyance of the swamp and overflowed land, or the proceeds thereof, to the amount of $£0,000, to aid in the construction of their railroad in said county, which said contract at a special election held on the 13th day of February, A. D. 1860, was voted for and ratified by a majority of the voters of said county, pursuant to chapter 132 of the acts' of the General Assembly of the State of Iowa, apjiroved March 22d, A. I). 1858. Now, therefore, in consideration of the premises, and for the purpose of perfecting said contract, the said county of Pottawattamie doth hereby grant and convey,” etc.
2. CONVEYAstns: contract. Prior to the making of this contract and conveyance, on the 27th day of July, 1859, the county judge of Pottawattamie county conveyed the land in controversy to d d d James A. Jackson, but the deed was not filed for record until the 5 th day of November, 1861. The plaintiff claims title to the land under Jackson. The appellant claims that the deed to Jackson is invalid as a conveyance, because it was not executed by the county court, nor countersigned by the clerk of said court as provided- in section 935 of the Revision. If it should be conceded that this deed is ineffectual as a conveyance, it is, nevertheless, evidence of the fact that Jackson had purchased the land and was entitled to a conveyance. If it does not convey the legal title, it at least shows that Jackson had an equity in the land, by purchase and payment of the price. The contract between Casady and Nuckolls provides for the transfer and conveyance *459of the swamp land within the county not sold or covered by a bona fide pre-emption claim. The land .in controversy was sold to Jackson, and hence was not embraced in this contract. The deed to the railroad, company recites that it was made pursuant to this contract, and for the purpose of perfecting it. It is evident that it was not the purpose to convey any lands not embraced in the contract. Whilst the deed describes the land in controversy, yet it is evident from the contract, apd from the testimony in the case, that it was inserted by mistake, the records in the county judge’s office not showing the prior sale to Jackson. It is clear, .we think, -that as between the railroad company and the county, the deed was subject to be corrected so. as to conform to the contract between the parties. But on the 6th day of June, 1862, the railroad company conveyed the land, for a valuable consideration, to Eva S. Nutt, who had no actual notice of the conveyance to Jackson, or of the sale to him. The defendant claims title under Nutt.
3..-: noina¿ecí!cltal The real question in the case is, did Eva S. Nutt, or those claiming title under her, acquire an absolute title to the land, unaffected by the outstanding title or equity in Jackson? The deed to the grantor of Eva S. Nutt recites that a contract was made with the railroad company for the transfer of swamp lands to the amount. of §40,000, and that the conveyance is in consideration of the premises, and for the purpose of perfecting said contract. It is claimed by the appellee that this recital makes the contract a part of the deed and affects the grantees of the railroad company with notice of the provisions of the contract. Hall v. Orvis, 35 Iowa, 366. Let this position of the appellee for the purposes of this case be conceded; then Eva S. Nutt when she purchased from - the railroad company had notice that the contract between the county and the railroad company .was for the conveyance of lands only which were not sold or covered by a bona fide pre-emption claim. This is the extent of the information imparted to her by the deed *460and contract. She had no actual knowledge that the land in controversy had been sold to Jackson, and the deed did not impart such knowledge. She had a right to suppose that the deed was executed in conformity with the contract, and that it covered only the lands included in it. There was nothing in the circumstances of the conveyance to cause-her to suspect a mistake, and she was not called uj>on to institute an investigation for the purpose of ascertaining whether the deed was correctly executed. There was no circumstance of suspicion and nothing to stimulate inquiry. The recitals in the deed do not impair the lona Jodes of the purchase of Mrs. Nutt, or affect her with outstanding equities of which she had no notice.
4. — •.-•. record of invalid deed. ill. This brings us to a consideration of the effect of the recording of the deed to James A. Jackson, on the 5th day of November, 1861, and before the conveyance to _ n , , Eva;- ¡á. JNutt. ims deed was executed by the county judge, and was not countersigned by the clerk of the County Court. Section 935 of the Eevision provides that upon the presentation of a certificate of purchase to the County Court it shall be the duty of said court to execute a deed in fee simple for the land therein described, signed in the official capacity of said court, and countersigned by the clerk of said court, with the official seal thereto affixed. Section 141 of the Code of 1851, which was in force when this deed was executed, provides: “ The clerk of the District Court is ex officio the clerk of the County Court and the register of probate.” The deed in question was not executed in the manner prescribed' in the statute, and, as a consequence we think it was ineffectual. The appellee insists that the county judge is authorized to execute deeds without being countersigned by the clerk, under section 981 of the Eevision. But this section applies only to cases where parties hold certificates of pre-emption. Jackson did not hold certificates of pre-emption, but the deed was made under chapter 13, laws of the Fourth General Assembly. As the deed was not *461executed as required by law, tbe recording of it did not affect a subsequent purchaser with constructive notice. It follows from these views that Eva S. Nutt and her grantees acquired title to the land unaffected by the outstanding equity in favor of Jackson and his grantees. The decree of the court below is
Reversed.