Action of ejectment for a tract of swamp land.
The land was patented to Bollinger county by the state as swamp and overflowed land August 4, 1869. Both parties claim under this title. Defendant also relied upon the statute of limitations as a defense. Plaintiffs’ claim title under a deed from Bollinger county to William Brown and Louis Houck dated May 13, 1887; and by deed from Brown and Houck to J. T. Moss, deceased, ancestor of the plaintiffs Moss, dated April 14, 1888. Defendant Kauffman claims under deed from Bollinger county by Philip Sutherlin, *428swamp land commissioner, to Thomas Allen, dated April 6, 1870, and by subsequent mesne conveyances to defendant Kauffman, all of which were quitclaims, except a deed from the sheriff of said county to A. T. Rose and Moses Whybark, made under a judgment for taxes, against Thomas Allen and said ]and which was rendered in the circuit court of said county on the thirteenth day of September, 1879.
The suit was begun in the name of Thomas J. Moss who has since deceased, when it was revived in the name of the plaintiffs, who are his heirs, and legal representative. Defendant McMillan was the tenant of his codefendant Kauffman.
The case was tried before a jury, who found for plaintiffs. Defendants in due time thereafter filed their motion for a new trial which being overruled they appealed.
When defendants,' in support of their defense offered in evidence the deed from Bollinger county to Thomas Allen as legal title to the land in question, upon objection being made by plaintiffs it was not permitted to be read for that purpose but was permitted to go to the jury as color of title only, and in this, it is argued, there was error.
That deed was made in 'pursuance of an order of the county court of Bollinger county to Allen as the legal representative of the St. Louis & Iron Mountain Railroad Company in payment of stock subscribed by said county to said company for which stock of said company was accepted by it in payment for said land. It was, therefore, void and of no effect, and all persons purchasing under it were bound to take notice of its infirmities. No extrinsic evidence was necessary to show its invalidity which appeared from its recitals.
By section 20, chapter 63, G-eneral Statutes, 1865, it is provided that, “any county subscribing for rail*429road stock, which, shall have internal improvement funds or overflowed or swamp lands granted to it by the state, may apply such funds or' mortgage or sell such overflowed or swamp lands to pay such subscription, or any part thereof, and provide for the remainder, if any, by the tax as aforesaid; and any county, city, or town subscribing as aforesaid, may (if so required by the railroad company, to raise funds to pay the installments in anticipation of the collection and payment of its railroad tax) issue the bonds of such city, county, or town, of denominations not exceeding $1,000, and bearing interest at a rate not exceeding seven per cent per annum.”
The only power conferred by this section on any county subscribing for railroad stock is to apply its internal improvement funds or mortgage or sell its overflowed or swamp lands, if it have any, to pay such subscription, or any part thereof, and provide for the remainder, 'if any, by taxation. No power was given to subscribe its swamp lands or to receive the stock of any railroad company in payment therefor. Power to mortgage does not confer the power to sell. Counties to which swamp and overflowed lands have been granted by the state hold them in trust for the, public school fund and can only .dispose of them as pointed out by statute. “Their powers are limited and defined by law. These statutes constitute their warrant of attorney. Whenever they step outside of and beyond this statutory authority their acts are void. Saline County v. Wilson, 61 Mo. 237; Wolcott v. Lawrence County, 26 Mo. 275; Steines v. Franklin County, 48 Mo. 167. Persons dealing with such agents are bound to take notice of their powers and authority.” Sturgeon v. Hampton, 88 Mo. 203; Railroad v. Hatton, 102 Mo. 45; Railroad v. Wayne County, 125 Mo. 351.
From what has. been said it logically follows, that *430the court erred in permitting plaintiffs to read in rebuttal to the evidence introduced by defendants the records of the suits of Ann R. Allen et al. v. Brown et al.; of State ex rel. Board of Education v. Ann R. Allen et al.; and of State ex rel. W. K. Chander, Prosecuting Attorney of Bollinger County v. County Court of that County and the County Clerk, J. W. Snider, and Louis Houck and William Brown. The defendants herein were not parties to either of them, and the first one did not embrace .the land in suit. Besides, whatever title Kauffman had, if any, he acquired before the institution of said suits.
But while this evidence was wholly immaterial it is not perceived how it could have prejudiced the rights of defendants, and the judgment should not be reversed upon that ground.
After the certificates of stock of the county in the railroad company had been delivered to the county, Thomas Allen, by an arrangement with its county court, took up or purchased from said county its stock in the railroad company, paying therefor in cash the sum of seventy cents on the dollar, amounting in the aggregate to the sum of $10,850. Subsequently, the heirs of Allen (he being deceased) transferred to Brown and Houck all of their interest in said money thus paid. After this Brown and Houck purchased from the county the swamp land formerly deeded by it to Thomas Allen which included the land in question, paying for the same $1.25 per acre, including the sum paid by Allen, to which they had become entitled. This arrangement was made with the county court upon the theory that the deed by the county to Allen for the land was absolutely void and'passed no title, and that he was in equity and good conscience entitled to have refunded to him the price paid the county for the rail*431road stock for which the county had paid no consideration.
The arrangement between the' county court and Allen with respect to the purchase of the railroad stock by him is admitted by counsel of defendant in his briefs to have been free from fraud and made in the utmost good faith by all parties, but the authority of the county court to adjust the matter as it did is seriously questioned. As Allen acquired no title to the swamp land by his deed from the county, no consideration passed from the county for its railroad stock, and as he paid a valuable consideration for the stock, which proved to be of no value, he was in equity entitled to have refunded to him the purchase money. To this right. Brown and Houck succeeded, and we can see 'no reason why the title thus acquired by them should not be upheld. Certainly this deed is not void.
As to the tax deed by the sheriff to Eose and Why-bark to the land in suit, as Allen had no title at the time of the levy of the taxes, rendition of' the judgment and sale of the land thereunder, it necessarily follows that no title passed by said deed to the purchasers, and it was correctly so ruled. The deed was at most only color of title, and for that purpose the court allowed it to be read to the jury.
The question of adverse possession seems to have been fairly submitted to the jury under appropriate instructions. Indeed, the action of the court in giving or refusing instructions upon that question has not been criticised.
The judgment is clearly for the right party and
should be affirmed. It is so ordered.
Gantt, P. J., and Sherwood, J., concur.