Dissenting Opinion.
BRACE, J.I do not agree to the foregoing opinion of the majority of the court, but adhere to the views expressed in the original opinion in this case, delivered on March 28, 1902, and in which all the members of the court except Burgess, C. J., then absent, concurred, and which is as follows:
“These two cases were tried together, brought here on a single transcript, and may be treated as one case, The decrees of the circuit court were in favor of the plaintiffs in each case, and the defendant appeals.
‘ ‘ On March 13,1868, in the Stoddard Circuit Court, a judgment was rendered as follows:
“ ‘Louis M. Ringer v. Stoddard County — Civil Action : Debt. Now comes the plaintiff by his attorney and it appearing to the satisfaction of the court that the defendant herein has been duly notified of this proceeding by personal service as the law directs, and that said plaintiff did at the last term of this court recover an interlocutory judgment against said defendant and the said defendant being solemnly called comes not but continues to make default, whereupon, upon said motion, said judgment is made final for $1,136.08. It is therefore considered and adjudged by the court that said plaintiff recover of and against said defendant his debt aforesaid in form aforesaid found, in the sum of $1,136.08, together with his costs and charges by him *478laid out and his said suit in this behalf expended, which costs amount to $10.65, and that he have execution therefor, and that this judgment draw interest at the rate of six per cent per annum. ’
“In pursuance of an execution issued upon said judgment dated August 17, 1868, the sheriff of said county levied upon all the right, title and interest of Stoddard county in and to 80,172.71 acres of land situate in said county,' and on September 15, 1868, sold said lands to D. Starks Crumb and Lorn's 1..'. Rmger for the sum of $663.95, and duly executed and r!e-Gored to them a deed therefor dated September 16, 1868. The lands thus sold and conveyed were swamp lands donated to the State of Missouri by act of Congress approved September 28, 1850, and by the State of Missouri donated to Stoddard county by the act of the General Assembly approved March 27,1868, and previous acts for the purposes in said acts designated (Laws 1868, p. 68; Laws 1857, p. 32; Laws 1854-5, p. 154; Laws 1852-3, p. 108; Laws 1850-1, p. 232).
“Afterwards on April 23, 1869, an order was entered of record by the county court of Stoddard county as follows:
“ ‘Whereas at the March term, A. D. 1868, of the circuit court of Stoddard county, in the State of Missouri, Louis M. Ringer obtained a judgment against Sotddard county upon warrants on the swamp land fund of said county, upon which said judgment an execution issued according to> law, by virtue of which said execution the sheriff of Stoddard county did seize and levy upon all swamp land owned and possessed by said county, of which said lands so levied upon one hundred and seven thousand or near that amount of acres of said lands were sold by said sheriff in due accordance of law at the September term of the circuit court of Stoddard county, A. D. 1868, to Louis M. Ringer and others; and whereas, the county court of Stoddard county, did at its February term, A. D. 1869, by an order of record, *479appoint William Gr. Pelham and David Gr. Hicks, attorneys for and on hehalf of said county, to institute suit for the recovery of the lands sold as aforesaid, granting to them the interest of the county to fifty thousand acres of lands so sold as their fee: Now, therefore, in consideration of the facts that said suit would he attended with much uncertainty in the recovery of said lands and require years of litigation to terminate the same, it is, therefore, considered by the court that a compromise of the same would be for the benefit of the said county of Stoddard if made with the parties who bought said lands at said sale, whose names are as follows, to-wit: Louis M. Ringer, D. Starks Crumb, Erastus W. Hill, Thomas W. Johnson, Samuel J. Burdett, L. Frank Starrs, Robert W. Carter, M., E. Leach, William P. Knox, Clarissa M. O’Dell, H. H. Bedford, James Frazier, William W. Norman, J. More, J. E. Liles and Jesse B. Legget; and, whereas, said purchasers agree and covenant to pay to the said county the sum of thirteen thousand five hundred dollars in Stoddard county warrants, which sum is to’ be paid into the county treasury on the following terms and in the following manner, to-wit: said parties either paying as aforesaid or executing their promissory notes, bearing six per cent interest; one-half of said sum shall be paid as aforesaid on or before the first day of January, A. D. 1870, and the remaining half on the first day of January, A. D. 1871, each of said parties giving notes for their portion of said sum shall secure the same by mortgage on real estate to the satisfaction of the county court of the said county. Therefore it is considered, adjudged, ordered and decreed, that in consideration of the premises aforesaid, the county court shall and will cause letters patent to be issued to the purchasers of said lands, and to their assigns, conveying in fee simple, all the right, title, interest and claim of said county, of, in and to the lands sold by virtue of said execution, to the parties who purchased the same or to their as*480signs. And it is further ordered that for the purpose of carrying out this order in good faith towards the purchasers aforesaid, and their assigns, the county court of this county does hereby make, constitute and appoint Alfred Eltzroth a special commissioner for and on behalf of said county of Stoddard, to make, execute and deliver to said purchaser's or their assigns, letters patent for the lands aforesaid. Said commissioner to receive usual fee for such services to be paid by the parties to whom the patents shall be made, which said patents shall be delivered-to the parties aforesaid, upon the execution, acceptance and delivery of the-mortgage aforesaid, on the production of the county treasurer’s receipt for the pro rata of the aforesaid thirteen thousand five hundred dollars due upon the amount of lands for which patents are to- be issued. And it is further ordered that on compliance a special provision of this compromise, William Gr. Phelan and David'Gr. Hicks are to receive out of said lands so sold, ten thousand acres each, in lieu of the fifty thousand acres mentioned heretofore, the same to be selected. Said selection to- be justly proportioned between the parties who are to receive patents for said lands as aforesaid in equal pro rata of said lands so sold, that being seventeen and one-half per cent. And the commissioner aforesaid is hereby ordered to issue to said Phelan and Hicks patents for the lands so selected, upon their securing or paying to said county fifteen hundred dollars of said thirteen thousand five hundred dollars. And it is further ordered that upon the issuing of patents to William Gr. Phelan and David Gr. Hicks to the amount of lands above mentioned, then the order made at the February term, 1869, granting said Phelan and Hicks as attorneys to protect the interest of said county fifty thousand acres of said land, shall be considered, revoked, held for naught and cease to be of effect. ’
“Afterwards on and before May 1, 1869, the said special commissioner in pursuance of said order, upon *481compliance with, the terms thereof, issued patents to the purchasers. By mesne conveyances the plaintiff, Albert P. Simpson, has acquired the title of the said Einger and Crumb so conveyed by said sheriff’s deed and patents, to 9,121.50 acres of said land and the plaintiffs Himmelberger have acquired title to 640 acres thereof.
“Afterwards in an action in ejectment in the United States Circuit Court for the Eastern District of Missouri this title came before that court for adjudication in the case of Stone v. Perkins, 85 Fed. 616, in which it was decided‘that the land in question was held in trust by Stoddard county for the ultimate use and benefit of the public schools of the county, and was not a part of the general assets of the county of Stoddard, or subject to be sold on execution to pay a general judgment against the county.’ Hence, ‘the plaintiff’s remote grantor acquired no' title by virtue of the execution sale, and the plaintiff has acquired none by the several mesne conveyances from such grantor to him.’ And that, ‘The county court exceeded its authority in making the compromise agreement in question, and the deéd made by the commissioner, Eltzroth, to plaintiff’s grantor, pursuant to such compromise, conveyed no title for the following reasons: (1) Because the compromise was based upon a recognition that Einger had some right to the land, arising out of the execution sale, and in the settlement with him, and the deed executed pursuant thereto, trust property belonging to the public schools was indirectly appropriated to the payment and satisfaction of a general judgment against Stoddard county. (2) Because the compromise involved a settlement of a large demand, on the part of the attorneys above named, against Stoddard county, arising out of their said contract of employment with the county. (3) Because, by the terms and provisions of the compromise, the land was bartered; that is to say, was not sold for cash, or for work done or to be done in draining other swamp *482lands. (4) Because, treating the consideration received as the equivalent of cash to the amount of the alleged face value of the securities taken (the same being $13,500, in the aggregate, for 107,000 acres of land sold), it amounts to only about eight cents per acre, instead of $1.25, as required by the Act of March 27,1868, supra, as construed by the Supreme Court of Missouri, supra. (5) Because the compromise as made, taken as a whole, as above analyzed, can in no proper sense be regarded as a sale and disposition of the swamp lands for the benefit of the schools of the county, under and pursuant to the statutory authority conferred upon the county court.’
“Afterwards on April 16,1898, the county court of Stoddard county made an order, of record, as follows:
“ ‘On this day the question of the future action of this court in relation to the swamp lands of Stoddard county known as the “Ringer lands,” coming on to be heard, and the court being fully advised in the premises •doth consider and adjudge that, in view of the recent decision of Judge Adams of the United States Circuit Court for the Eastern District of Missouri in the case of Stone v. Perkins, said lands belong to Stoddard county and ought to be sold by the county and the revenue arising therefrom applied as directed by the statute. It is further considered and adjudged by the court that justice demands that those parties having a bona fide chain of title coming down through the Ringer sale, ought to have the preference in the sale of said lands. It is therefore ordered by the court that all parties holding the Ringer title to said" lands be and are hereby given until the first Monday in November, 1898, to come on and make application to the court for the purchase of any of such lands which they may hold under and by virtue of the Ringer sale at the price and sum of one dollar and twenty-five cents per acre, on such terms as the court by order of record may direct, and that ail of said lands that shall remain unsold after the first *483Monday in November next, will be offered for sale to tbe general public as other lands of the county are now sold, and that the holders of the Ringer lands be notified of this action of the court by the publication of this order in the Bloomfield Vindicator, and that all parties desiring to make application for the purchase of any such lands should apply to Ralph Wammack of Bloomfield, Missouri, who is hereby constituted agent of the county in the settlement of the title to said lands.’ ”
Afterwards on September 14, 1898, these suits were instituted.
The petition, which is very voluminous, sets out at length plaintiff’s chain of title, the facts aforesaid in detail, and further alleges in substance, that the Ringer judgment was upon county warrants issued for work and labor done under a contract made with the county court of said county, for the construction of certain ditches, dikes and levees, for the purpose of reclaiming said lands, whereby it was agreed that payment therefor would be made by warrants on the swamp land fund of said county, and thereupon it was represented by said county court that such warrants would be paid on presentation to the county treasurer, the custodian of the swamp land fund. That the same having been presented to the county treasurer and payment thereof refused, the said Ringer, being the assignee and holder of said warrants, instituted the suit thereupon in which said judgment was rendered. That since the conveyance by the sheriff’s deed aforesaid, and the issue of the patents aforesaid by. commissioner Eltzroth, the lands claimed in this controversy have been assessed to and the taxes paid by the plaintiffs and their grantors. That they have been in the continuous, open, notorious and adverse possession thereof for more than ten years before the institution of this suit, and that for more than twenty-nine years they and their grantors have exercised all such acts of ownership and control over said lands as their condition permitted, during which *484.time their right thereto was not questioned by the county. That the claim set forth in said order of the county court of April 16, 1898, is a cloud upon plaintiff’s title; that defendant by the facts aforesaid is estopped and by its laches is precluded from setting up or maintaining any claim to said lands. Wherefore' plaintiffs pray that the title to said lands be vested in them, that the defendant be forever enjoined from asserting any claim thereto, or interfering in any manner with plaintiffs’ possession thereof, etc., and for general relief. The parol evidence, so far as .is necessary, will be noticed later in the course of the opinion. Prom .decrees in favor of the plaintiffs in accordance with, their prayers, the defendant appeals.
“At the time this suit was instituted there was pending in this court on appeal an action in which this same title was involved, and which was thereafter passed upon in Division One, June 30, 1900 (State ex rel. Public Schools of Stoddard County v. Crumb, 157 Mo. 545), in which, after summarizing the statute governing the subject, it was held that, ‘The plan, scheme and policy of the act was to vest the title to the lands in the county for the purpose of drainage, reclamation and sale, or sale without drainage or reclamation, the proceeds to go to the school fund; to authorize the county court to have the lands drained, reclaimed and surveyed under the direction of a commissioner and to give power to the county to raise money for this purpose by borrowing money and issuing bonds; to have the land sold by the sheriff, at public vendue, on sixty days ’ notice, but not for less than one dollar and twenty-five cents an acre within five years from January 1, 1866; and to require the net proceeds of such sale after deducting the expenses of draining, reclaiming, surveying and selling the same, to be' paid into the county treasury and become a part of the public school fund of the county, and to be loaned out like other school funds, and' only the interest arising therefrom to be apportioned *485and distributed like other school funds. The act was approved March 27, 1868. Ringer obtained .judgment on March 13, 1868. The sheriff sold the land under execution on September 16, 1868. The judgment, therefore, antedated the , approval of the act, but the sale under execution was after the act took effect. The judgment was a general judgment against the county. . . . The sheriff, therefore, sold these lands, which the State conveyed to the county for the benefit of the school fund, to satisfy a general judgment against the county. Such a sale was without authority of law and conveyed no title to the purchaser. Such lands were exempt from such a sale for ordinary county indebtedness. [State ex rel. v. Co. Ct. New Madrid Co., 51 Mo. 82.] The property held by a person in trust can not be sold under legal process to- satisfy a personal judgment for a personal debt of the trustee. The effect of the sale was to make the school lands pay $1,136.90 of the general indebtedness of the county and this could not lawfully be done.' [Montgomery Co. v. Auchley, 103 Mo. 492.] The sheriff’s deed should therefore be cancelled as cloud upon the title to the lands.
“ ‘But defendants rely also upon the patents issued hy the county,-through its special commissioner, on May 1, 1869. Prior to the passage of the act of March 10, 1869, the patents for all such lands sold by the county courts, were issued by the Governor, countersigned by '-the Secretary of State, and registered in the office of Register of Lands. [Laws 1868, p. 69, sec. 4.] The sixth section of the Act of 1869 (Laws 1869, p. 64, sec. 6) authorized the county courts to issue the patents to such lands and to sell and dispose of such lands like any other real estate belonging to the county. But this .act has been held by this court not to destroy the trust created by the 'Act of 1868, and not to vest absolute •ownership of such lands in the county. [State ex rel. v. Co. Ct. New Madrid Co., 51 Mo. l. c. 85; Sturgeon v. Hampton, 88 Mo. 203; C. G. S. W. Railroad Co. v. *486Hatton, 102 Mo. l. c. 55; St. L., C. G. & F. S. Railroad Co. v. Wayne Co., 125 Mo. 351; Hooke v Chitwood, 127 Mo. 372; State ex rel. v. Wayne Co. Ct., 98 Mo. l. c. 366.]
‘ ‘ ‘ The Act of 1869 did not therefore divest or destroy the trust upon which the' county held the land, nor did it change the manner of selling the same, nor remove the limitation as to selling for less than one dollar and twenty-five cents per acre within five years-after January 1, 1866. Its only effect was to authorize the county to issue the patent instead of having it issued by the State.
“ ‘When, therefore, the county court by its order of April 23, 1869, ordered these lands to be conveyed by a commissioner to the purchasers at the execution sale under the Ringer judgment, in consideration of $13,500 “in Stoddard county warrants, or, at the option of the purchasers, in cash, one-half payable January 1, 1870, and the other half January 1, 1871,” it acted wholly without authority of law. As before shown, these lands could only be sold at the time by the-sheriff, at public vendue, on sixty days’ notice, for not. less than one dollar and twenty-five cents an acre, by order of the county court. The proceeds were required to go to the school fund. The county court had no power to authorize them to be sold for $13,500' ‘ ‘ in Stoddard county warrants. ’ ’ That they were so paid for is prima facie shown by the fact’that the commissioner’s deed was dated May 1, 1869, which could not-have been the case if the purchasers had elected to pay in cash, one-half on January 1, 1870, and the other half on January 1,1871. These inherent infirmities in these patents and want of power of the county court were known to the purchasers, for they knew the law and knew the power of the court under the law.
“ ‘It is clear that the trust ran with the land, not-only from the statutory provisions quoted, but from the decisions of this court from the case of State ex rel. v. *487Co. Ct., 51 Mo. 82, down to St. L., C. G. & F. S. Railroad Co. v. Wayne Co., 125 Mo. 351, and from the provisions of section 8042, Revised Statutes 1889, which contemplate that such a suit as this shall he brought to recover lands, and from section 8040, Revised Statutes 1889, which makes it the duty of the State Board of Education to ascertain and sue for lands which have been used for purposes other than those named in the grant or intended by law. It is equally well decided in this State that in selling these swamp lands the county court is not the general agent of the county, hut is a special agent invested with only the powers prescribed by the act granting these lands to the counties and that all persons dealing with the county court in respect to these lands are charged with notice of its power. [Sturgeon v. Hampton, 88 Mo. 211; C., G. S. W. Railroad Co. v. Hatton, 102 Mo. l. c. 55; State ex rel. v. Wayne Co. Ct,. 98 Mo. l. c. 366; St. L., C. G. & F. S. Railroad Co. v. Wayne Co., 125 Mo. 351; Hooke v. Chitwood, 127 Mo. l. c. 377.] The case of Pool v. Brown, 98 Mo. 675, holds that the trust is a personal one as to the State, but that as to the county the trust runs with the land, and that the Acts of 1869 and 1868 do not destroy the trust and remove the limitations upon the county as to the manner of selling these lands and the price for which they might he sold, and -therefore there is no conflict between that case and the prior and subsequent decisions of this court on these questions.
‘ ‘ ‘ The circuit court therefore erred in not cancelling the patents issued by the county court through its commissioner. . . . It is only necessary to add that the plaintiff’s rights are not barred by limitation. [Sec. 6772, R. S. 1889.] Neither is there any laches in the case, nor is the ease, from its very nature, susceptible of being controlled by the doctrine of laches. ’
“While the ease of Stone v. Perkins, 85 Fed. 616, was an action in ejectment and the legal title to the land under the sheriff’s deed and patent aforesaid only was *488passed upon, the case of State ex rel. Public Schools of Stoddard County v. Crumb, 157 Mo. 545, was a suit in equity to set that title aside as a cloud upon the title of the county as trustee of the public schools of said county. In these cases the whole subject has been so thoroughly and recently discussed, that it’ is unnecessary to go over the ground again. The conclusions therein reached, that the title under which defendants claim, has no standing either in a court of law or a court of equity is so clearly demonstrated as to be decisive of the present case, unless a different conclusion is warranted by the additional facts disclosed by the record in this case, and to these additional facts only need our attention be directed.'
“The effect of the recital, ‘whereas at the March term, A. D., 1868, of the circuit court of Stoddard county in the State of Missouri, Louis M. Ringer obtained a judgment against Stoddard county upon ’warrants on the swamp land fund of said county, ’ etc., in the order of the county court of April 23, 1869, on the judgment, was not directly passed upon in State ex rel. v. Crumb, 157 Mo. 545, for the reasons stated in the opinion on page 561, and on the trial of this case the plaintiffs after showing that all of the original ‘files’ in the case of Ringer v. Stoddard County had been destroyed, introduced two witnesses who had seen the files before they were destroyed (some twenty or thirty years before), the evidence of one of whom tended to prove that the suit in which said judgment was rendered was based entirely on a number of certificates signed by J ames Cooper, superintendent of public works of Stoddard county, called ‘county script’ or ‘swamp land script, ’ and of the other that the suit was based partly on such script and partly on county warrants, and the defendant introduced one witness, who examined the files at the time of the sale, and who testified that the suit was on two county warrants on the general revenue fund of the county. The parol evidence also tended to *489prove that about the time of the institution of the suit against the county, Ringer was the holder by assignment of some of such script or certificates amounting to the sum of twelve or thirteen hundred dollars. That they were issued in the year 1858 or 1859 for work done in Stoddard county in constructing a road called Bloomfield & New Madrid plank road, in doing which it became necessary to dig ditches, erect bridges and make> a levee about three miles long, from a foot and a half to eight feet high. It would seem to go without saying, that neither the misrecital of the judgment in the order of the county court, nor this parol evidence affects said judgment in any manner. Whatever the cause of action may have been upon which it was rendered, that cause of action was merged in the judgment. It was a general judgment against the county by its terms, imports absolute verity, is impervious to collateral attack, and even if there was a mistake, on such evidence, it could not be changed, altered or corrected even in a direct proceeding for that purpose. [Board of Relief C. P. Church v. Drummond, 167 Mo. 54, and cases cited.] It may be remarked, howeyer, that as appears from this evidence, Stoddard county had no swamp land fund, and under the law in force in that county at that time, the only right Ringer, as the holder of such certificates, had quoad the swamp lands in such county, was with them to enter or purchase such lands to the amount of such certificates at the price of one dollar per acre (Laws 1854-5, p. 154), and it is upon this shadowy foundation that it is sought by this parol evidence to set up an equity by which the character of the judgment under which the defendants claim, is to be changed, and the beneficiaries of this trust deprived of 107,000 acres of land, set apart for them by the State and the General Government. Such a claim could have no standing in a court of equity, even if defendants were not precluded from setting it up by the well-settled' principles of law which makes such judgment a finality as to them. *490And the ruling as to the character and effect of the judgment in this case must be the same as it was in the Crumb and Stone cases. These lands are not and never were the property of the county, or subject to its obligations as a county, and could not be subjected to them by a judgment against the county, nor could the county court trade them off for the obligations of the county, as was attempted by the order of the county court of April 23, 1869, and the patents issued in pursuance thereof.
“As to these lands the county was a mere trustee, and the county court and the other officers of the county were mere agents, for their disposition, in the manner and for the purposes designated by law, whose powers were defined and limited by law, and whose acts beyond the limits of such powers were void. Of those limitations the defendants and their grantors were required to take notice, and hence they acquired no title to the lands in question under the sheriff’s deed aforesaid, or under the patents issued in pursuance of the order of the county court aforesaid. I - support of which conclusion, we deem it sufficient to cite the cases: State ex rel. Pub. Schools v. Crumb, 157 Mo. 545; Stone v. Perkins, 85 Fed. 616; Hooke v. Chitwood, 127 Mo. 372; St. L., Cape G. & Ft. Smith Ry. Co. v. Wayne Co., 125 Mo. 351; Wm. Brown Est. v. Wayne Co., 123 Mo. 464; Butler v. Sullivan Co., 108 Mo. 630; Cape G. & S. W. Ry. Co. v. Hatton, 102 Mo. 45; Sturgeon v. Hampton, 88 Mo. 203; Saline Co. v. Wilson, 61 Mo. 237; State ex rel. Robbins v. County Court, New Madrid, 51 Mo. 83; State v. Bank, 45 Mo. 528.
“The plaintiffs "acquired no title by the statute of limitations. The doctrine of laches is not applicable to it, nor is the defendant estopped from asserting its title as trustee to these lands for the purposes of the trust, by reason of the fact that for more than twenty-nine years they have been paying the taxes assessed *491against these timber lands of which during that time they have been in the profitable enjoyment. [R. S. 1889, sec. 6772; State ex rel. v. Crumb, 157 Mo. l. c. 564; Hooke v. Chitwood, 127 Mo. l. c. 377; Wheeler v. City of Poplar Bluff, 149 Mo. 36; State ex rel. v. Murphy, 134 Mo. 548; Heidelberg v. St. Francois Co., 100 Mo. 69; Sturgeon v. Hampton, 88 Mo. 203; City of St. Louis v. Gorman, 29 Mo. 593.] The plaintiffs having therefore failed to make good their claim to these lands upon any of the grounds set forth in their petitions, the circuit court erred in rendering the decrees aforesaid in their favor, and the same should be reversed. But, at the last session of the General Assembly, by an act approved March 14, 1901 (Laws 1901, p. 202), section 8197 of article 3, chapter 122, Revised Statutes 1899, entitled ‘Swamp and Overflowed Lands,’ was amended by adding at the end of said section the following proviso: ‘Provided, further, that in all cases where the county courts of the State have, prior to 1880, sold or disposed of any such swamp lands in their respective counties and issued, or caused to be issued, patents for the same, and the patentees, or those holding under them, have been claiming such lands and paying county and State taxes thereon for more than twenty years, such grants shall be deemed and held to be good and valid, and no action shall be maintained for the purpose of setting aside or calling in question such patent or patents.’
“At the time this act was passed and went into effect these cases had been tried and finally determined in the circuit court and were pending in this court on appeal. The jurisdiction of this court over them is purely appellate, in the exercise of which we are confined to a review of the case as it was tried below. No new issue can be injected into the cases in this court. Moreover, this statute does not purport to give a cause of action, or to give aid to one, but only to bar an action ‘for the purpose of setting aside or calling in question *492such, patent or patents.’ Hence, it can not be invoked in these cases in aid of the decree herein rendered, and we refrain from expressing any opinion npon it. The decrees and the judgments in these cases will therefore be reversed.”
In this opinion, Robinson, C. J., and Marshall, J., still concur.