Opinion
March 13, 1942. Rehearing Denied, May 5, 1942.
1. COUNTIES: Equity: Acknowledgments: Irregularities in Sale of Lands. A court of equity will not set aside a sale of land by a county on account of minor irregularities, including an irregularity in the acknowledgment, which were of the county's own creation.
2. COUNTIES: Equity: Sale of Land for Less than Statutory Minimum: Tainted Motives. Both the county and the purchaser thought that the amount of the acreage was such that the purchase price was more than the statutory minimum. The motives of the plaintiff are tainted, as the county claims no title, and is permitting third parties to use its name to bring the action and pay the expenses. The county is in no position to set aside the deed.
3. PLEADING: Reformation of Instruments: Issue Not Presented By Pleadings. The defendant did not seek reformation in his answer, and so the Supreme Court will not determine the issue.
Appeal from Howard Circuit Court. — Hon. A.R. Hammett, Judge. REVERSED.
A.W. Walker and William H. Sapp for appellant.
(1) The trial court erred in holding that Section 12755, R.S. 1939, provided the only method for the conveyance of island land, and that the instant conveyance was void because in the form of a quitclaim deed instead of a patent. Elliott v. Buffington, 149 Mo. 663. (a) The deed was not void because it failed to contain a recital describing the authority by which the presiding judge acted. Huse v. Ames, 104 Mo. 91; Henry v. Atkinson, 50 Mo. 266. (b) Nor because the acknowledgment failed to strictly comply with Sec. 3416, R.S. 1939, since its meaning was clear and showed that the presiding judge acted in his capacity as such officer. Agan v. Shannon, 103 Mo. 661. (c) Moreover, this being an action between the original parties to the deed the form of the acknowledgment is of no consequence. Vincent v. Means, 207 Mo. 709; Schroeder v. Turpin, 161 S.W. 716. (d) Nor is it void because it was not recorded in "swamp land book" instead of the recorder's office, since this action is between the original parties. Vincent v. Means, 207 Mo. 709; Parsons v. Parsons, 45 Mo. 265. (2) The court erred in holding that the sale of said land was void because the county court and the appellant did not enter into a written contract of the character described in Sec. 3349, R.S. 1939. Said section only applies to executory contracts. Mueller v. Wienbracht, 47 Mo. 468; Missouri State Life v. Early, 13 S.W.2d 1097; Swan v. Stevens, 143 Mo. 384. (3) The court erred in holding the deed void ab initio and insufficient to pass equitable title to the seventy-five-acre tract, because under Sec. 12755, supra (made applicable by Sec. 12740), the presiding judge was empowered to execute deed to an estimated number of acres. A prior survey not being a statutory prerequisite to the making of such deed, it naturally follows that such instrument would not be absolutely void, but at least would be valid until set aside by a proper court action. Secs. 12740, 12755, R.S. 1939; Sexton v. Dunklin County, 246 S.W. 195; Simpson v. Stoddard County, 173 Mo. l.c. 458; Frank v. Goodin, 193 Mo. l.c. 395; Platte County v. Locke, 242 S.W. 666. (a) Since county court had power to make deed to a tract containing an estimated number of acres of matured land, the law relieved the appellant of the duty to examine the preliminary orders of county court to determine whether it had fully discharged its duties to him and the public. Simpson v. Stoddard County, 173 Mo. l.c. 458; State v. Wayne County, 98 Mo. 362. (b) Nor was appellant charged with duty of calculating number of acres contained in the metes and bounds description, or with notice that the county's attorney had included sand bars along with the seventy-five acre tract in his description. Frank v. Goodin, 193 Mo. l.c. 398. (c) The trial court erred in refusing to hold that the respondent was estopped from denying the existence of county court orders authorizing the execution of said deed by (1) its order acknowledging the receipt of the purchase price, and (2) its order of December 7, 1938, acknowledging the sale of said land, and (3) its delay for five years after the recordation of the deed before attacking its validity, and (4) the assessment and acceptance of taxes on said seventy-five acre tract for five years, and (5) the entry of its false order regarding who employed counsel to prosecute this suit. Simpson v. Stoddard County, 173 Mo. l.c. 458; State v. Wayne County, 98 Mo. 362; Whalen v. Buchanan County, 111 S.W.2d l.c. 180; Riley v. Pettis County, 96 Mo. 318. (4) The trial court erroneously held that neither the doctrine of laches or delay, nor the doctrine of estoppel could be invoked against the respondent because it was a municipal corporation. The respondent had the right to sell the land at $1.25 per acre, and executed this power by conveying to appellant a tract of land estimated to contain seventy-five acres for a consideration in excess of said statutory amount. The deed not being void as a matter of law said doctrines were applicable. Simpson v. Stoddard County, 173 Mo. l.c. 463; Polk County v. West, 68 Mo. 229; American Stove, etc., v. Butler County, 93 F. 301; Boone County v. Railroad, 139 U.S. 684; Dunklin County v. Choteau, 120 Mo. 577. (a) The respondent is prevented by the doctrine of laches, due to its delay for about five years in repudiating its original estimate, from disputing the accuracy thereof, because during said time the elevation of said land and the relation of the original parties to the transaction had changed, and the appellant had been compelled to take the risk of losing his tract of land by avulsion or imperceptible wasting away. Simpson v. Stoddard County, 173 Mo. l.c. 463; Rollestone v. Natl. Bank, 252 S.W. l.c. 400; Polk County v. West, 68 Mo. 229. (5) The court erred in holding that the metes and bounds description contained in the deed arbitrarily fixes the number of acres conveyed to the appellant, regardless of the intention of the parties and of the fact that the law does not require such lines to be established by a survey to determine the quantity of matured land contained therein. Sec. 12793, R.S. 1939; Frank v. Goodin, 193 Mo. 390; State v. Longfellow, 169 Mo. l.c. 123; Ancona Realty Co. v. Frazier, 41 S.W.2d l.c. 824; Smith v. Wallace, 119 S.W.2d l.c. 818; Gould on Waters (2 Ed.), sec. 45; McBride v. Steinweden, 83 P. 822. (6) This being an action between the original parties the court erred in refusing to correct the ambiguity appearing in the description of the deed so as to vest title to seventy-five acres of matured land in Snell and thereby carry out the manifest intention of the parties. The mistake was mutual. Hoffman v. Rich, 27 Mo. 554; Central Mo. Oil Co. v. St. James, 111 S.W.2d 215; Presnell v. Headley, 141 Mo. 187; Hammond v. Johnston, 93 Mo. 214; Means v. La Vergue, 50 Mo. 343; Woods v. H. K., 55 Mo. 560; Bollinger County v. McDowell, 99 Mo. l.c. 636; 9 C.J., pp. 152, 171-72. (7) The court erred in holding that however low in elevation, sandy in quality and unstable in character alluvion may be, if it can be walked upon by hunters, or sand removed therefrom, it is susceptible of private ownership, regardless of whether it appears above water at its ordinary stage or is suitable for agriculture or any other purpose. Gould on Waters (2 Ed.), sec. 45; State v. Richardson, 140 La. 329; 45 C.J., pp. 522-3; Frank v. Goodin, 193 Mo. l.c. 395; McBride v. Steinweden, 83 P. 822; St. Louis Ry. Co. v. Ramsey, 53 Ark. 314. (8) There is no evidence whatever to support the erroneous finding of the trial court that the deed was prepared by appellant's agent, or that appellant or agent did so with the wrongful design of defrauding the respondent of its land. Factual: the deed was prepared by the prosecuting attorney from data furnished by county surveyor, and there is no evidence of fraud. Shannon v. Crabtree, 71 S.W.2d 709; Gittings v. Jeffords, 239 S.W. 84; Judd v. Walker, 215 Mo. 312; Maupin v. Provident Life, 75 S.W.2d 593. (9) There is no equity in the respondent's bill or in the evidence to support the allegations thereof. On the contrary, the respondent, prior to the institution of this suit, by an order entered of record, disclaimed title to the land and declared McGavock and others to be the owners thereof. At the instance of the latter persons the respondent later filed this suit with the understanding that McGavock and others should employ and pay the attorneys to prosecute the same, and save it harmless from the duty to pay costs. The respondent was not damaged, its hands are unclean, and it is not acting in good faith. Equity, 21 C.J., secs. 155 and 163, pp. 177-8, 180; 4 A.L.R., p. 49; Walsh v. Walsh, 226 S.W. l.c. 247; Sweeney v. Wilkes-Barre, 62 Pa. Super. 54; Grocers Journal Co. v. Midland Pub. Co., 127 Mo. App. 356; Kenyon v. Weisberg, 240 F. 536; Shikes v. Gabelnick, 87 A.L.R. 1339; Fehlig v. Busch, 165 Mo. 144; Maxwell v. Louisville Ry. Co., 1 Tenn. Ch. 8; Primm v. White, 162 Mo. App. 594. (a) Lack of clean hands need not be pleaded by defendant. Creamer v. Bervert, 214 Mo. 473; Equity, 21 C.J., sec. 171, p. 186; Wertheimer-Schwartz Shoe Co. v. Wyble, 261 Mo. 675; Houts v. Hellman, 228 Mo. 655.
Irwin, Bushman Buchanan, Jack H. Denny and Thomas E. Denny for respondent.
(1) The trial court did not err in holding that the purported deed should be set aside because of the form in which it is drawn. (a) It is true that Section 12755, R.S. 1939, does not provide an exclusive method for conveying county swamp or island land, but this purported deed is insufficient to meet the requirements of any applicable statute. Silvers Missouri Titles (2 Ed.), page 17; Josephine Hospital Corp. v. Modac Realty Co., 270 S.W. 638; Grafaman Dairy Co. v. Northwestern Bank, 288 S.W. 360; Sturgeon v. Hampton, 88 Mo. l.c. 202; City of Kansas v. Ry. Co., 77 Mo. l.c. 188. (2) The trial court did not err in failing to reform the purported deed because neither the pleadings nor the evidence were sufficient to warrant such action. Emerson-Brantingham Imp. Co. v. Rogers, 229 S.W. l.c. 781; Gamble v. Daugherty, 71 Mo. 599; 53 C.J., p. 1023, note 7; Feeler v. Gholson, 71 S.W.2d l.c. 729; 56 C.J. 1036. (3) The trial court did not err in failing to hold that respondent was estopped to question the validity of the purported deed, because appellant took it with notice of the limitations upon the power and authority of the County Court of Howard County. 3 McQuillin Mun. Corps., sec. 1268, p. 804, note 32; State v. Bank of Missouri, 45 Mo. l.c. 538; Andrew County v. Craig, 32 Mo. 528; Sturgeon v. Hampton, 88 Mo. 203; Butler v. Sullivan County, 108 Mo. 630; Drainage Dist. No. 1 v. Dandt, 74 Mo. App. 579. The trial court did not err in holding that the purported deed should be set aside, because the County Court of Howard County had no jurisdiction, power or authority to convey the land therein described to appellant for the price and sum of $100. (a) The term "land" is nomen generalissimum and includes everything terrestial as distinguished from water. Ex Parte Joseph Leland, 1 Nott McCord 460; Stoll v. Thompson, 294 Ill. App. l.c. 464; Money v. Wood, 152 Miss. l.c. 30; Hardin v. Jordan, 140 U.S. 371, 35 Law Ed. 428, 11 Sup. Ct. l.c. 814. (b) A particular description in a deed controls a prior repugnant general description. Hannibal St. Joseph Ry. Co. v. Green, 68 Mo. l.c. 177; 2 Devlin on Deeds (3 Ed.), p. 2016. (c) Mention of quantity does not control the rest of description. 2 Devlin on Deeds (3 Ed.), p. 2027. (d) Any land which has value, whether for agricultural purposes or not, is susceptible of private ownership. Fowler v. Wood, 85 Pac. l.c. 776. (e) In Missouri a riparian owner in or along a navigable stream takes to the low water mark. Frank v. Goddin, 193 Mo. l.c. 394; State ex rel. v. Longfellow, 169 Mo. l.c. 128; Tie Co. v. Stone, 135 Mo. App. l.c. 457. (f) The low water mark is the point where the river recedes at its lowest stage. Houck on Rivers, sec. 7. (g) The county court has wide discretion in the sale of island land, but it is subject to the one restriction that it must receive the statutory minimum of $1.25 per acre for such land. Sexton v. Dunklin County and Hemphill Lumber Co., 296 Mo. 692; Frank v. Goddin, 193 Mo. l.c. 396; Bayliss v. Gibbs, 251 Mo. 492. (5) The trial court did not err in holding that the purported deed conveying public land for less than the statutory minimum, constituted a breach of trust against the school funds of the county. (a) Authorities cited under point (4), a, d, e, f and g. State ex rel. Public Schools v. Crumb, 153 Mo. l.c. 561; Wheeler v. Reynolds Land Co., 193 Mo. l.c. 292; Simpson v. Stoddard County, 173 Mo. l.c. 477. (6) The trial court did not err in holding that the purported deed made, executed and delivered without an order of the county court authorizing same, should be set aside. (a) A deed to county land without an order of the county court authorizing it is void. Funkhouser v. Mallen, 62 Mo. 555; 50 C.J. 1008, note 47c; Elliott v. Buffington, 149 Mo. l.c. 675; Prior v. Scott, 87 Mo. l.c. 309. (b) A county court does not proceed according to the course of the common law, but all facts necessary to authorize its action in a given case must affirmatively appear on the face of the record. State ex rel. v. Imhoff, 291 Mo. l.c. 612; Doddridge v. Patterson, 222 Mo. l.c. 155. (c) The recital in the action of December 8, 1938, which is broader than the order, does not constitute an order of the county court sufficient to validate this purported deed. Mitchell v. Insley, 33 Kan. l.c. 657; 2 Black on Judgments, p. 1038.
Respondent, Howard County, filed this suit to set aside a quitclaim deed whereby the county had conveyed to the defendant, Snell, an island located in the Missouri river in sections 2, 3, 4, 9, 10 and 11, township 48, range 15, Howard County, Missouri. The deed recited that the land conveyed consisted of seventy-five acres more or less. The trial court entered a decree for plaintiff and defendant appealed.
Plaintiff in its petition alleged nine reasons why the purported deed was void. Most of these concerned irregularities as to the proceedings leading up to the sale and the deed executed by the county. In addition to the charge of irregularities the petition alleged that by the purported deed the county actually conveyed 260.25 acres of land to the defendant for a consideration of $100; that since the statute prohibits any county to sell such lands for less than $1.25 per acre the deed was void. The petition also charged fraud on part of the defendant, but since the evidence did not suggest any fraud either on part of the county or the defendant this charge will not be further noticed.
The principal contention of the defendant raised by the answer and the evidence in support thereof was, that the defendant bought seventy-five acres and that the deed upon its face recited that it conveyed only seventy-five acres. The quitclaim deed in question was a form of deed ordinarily used by an individual and not adapted for use by a county or a corporation. That fact accounted for a number of the irregularities leveled against [240] the deed. The deed reads as follows, omitting description of land:
"Quit-Claim Deed
"This indenture, made on the 8th day of February, A.D., Nineteen Hundred and Thirty-four, by and between Howard County, Missouri, party of the first part, and Leo N. Snell, of the County of Boone, in the State of Missouri, party of the second part:
"Witnesseth, that the said party of the first part, in consideration of the sum of One Hundred and No/100 ($100) Dollars, to it paid by the said party of the second part, the receipt of which is hereby acknowledged, does by these presents, Remise, Release and forever Quit-Claim, unto the said party of the second part, the following described Lots, Tracts, or Parcels of Land, lying, being and situate in the County of Howard and State of Missouri, to-wit:
"A long narrow island in the Missouri River and being on the Howard County side of the main channel of the said river, located and being in Sections 2, 3, 4, 9, 10 and 11, all in Township 48, Range 15, County of Howard and State of Missouri, and being in all seventy-five (75) acres (and all accretions thereto), more or less.
"Described as follows:
. . . . . .
"To have and to hold the same, with all the rights, immunities, privileges and appurtenances thereto belonging, unto the said party of the second part, and its heirs and assigns, forever; so that neither the said party of the first part, nor its heirs, or any other person or persons for it or in its name or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises, or any part thereof, but they and everyone of them shall, by these presents, be excluded and forever barred.
"In witness whereof, the said party of the first part has hereunto set its hand and seal the day and year first above written.
"(Seal) (Signed) C.R. Biswell "Pres. Judge Howard County Court
"(On the back:)
"State of Missouri, County of Howard — ss.
"On this 8th day of February, A.D. 1934, before me personally appeared C.R. Biswell, Presiding Judge of the Howard County Court, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that ____ executed the same as his free act and deed.
"In testimony whereof, I have hereunto set my hand and affixed my official seal at my office in Fayette the day and year first above written.
"(Signed) J.H. Gallemore Co Clerk "By Roy Roberts, Deputy "(Seal of Howard County Court, Missouri)"
The description of the land was by metes and bounds and it was admitted that it embodied 260.25 acres. The admitted facts, the evidence on part of the plaintiff and the records of the county court justify the following statement: The island in question began to form in the Missouri river about the year 1929, when a small towhead appeared above the surface of the water. In the year 1934, there were about seventy-five acres of land considerably higher than the balance of the island. This island was covered with willows and cottonwood from two to four years old. Plaintiff approached members of the county court about purchasing the island. The county surveyor, in compliance with a request of the court, made a survey of the island in January, 1934, which survey included all of the land above the water. This survey was reported to the county court and a plat thereof was filed for record. The river was at a very low stage when the survey was made. The surveyor, a witness for plaintiff, testified that the court inquired of him how much land was on the island; that he informed the court there were about seventy-five acres and that the balance was sand-bars. Note his exact language:
"A. There was not anything mentioned about the high land and when I came back I told them I made my survey and there were 260.25 acres in it. . . . I told them there were about 75 acres of land that was not sand.
"Q. You made your estimate of 75 acres and reported that to the court and they sold him 75 acres? A. I told the court there were practically 75 acres of high land."
Judge Biswell, presiding judge of the court, testified that the defendant offered $100 for the seventy-five acres and the court agreed to sell him the land; that Walker Pierce, prosecuting attorney of the county, prepared the deed and Judge Biswell signed it thinking he was signing a deed conveying seventy-five acres of land to the defendant. [241] Judge Biswell testified that the county court was in session when these transactions occurred. The defendant recorded his deed and paid the taxes on the land, it being assessed as seventy-five acres. The next action taken with reference to this island was on December 7, 1938, when the county court made the following order, description of land omitted:
"County Court Order.
"In the matter of an Island formerly sold to Leo N. Snell, and order to tender the amount of purchase price.
"Whereas, on the 8th day of February, 1934, the county court of Howard County, by and through its agent, C.R. Biswell, sold and conveyed to one Leo N. Snell the following described land, to-wit:
"A long narrow island in the Missouri River and being on the Howard County side of the main channel of said river, located and being Sections 2, 3, 4, 9, 10 and 11, in Township 48, Range 15, County of Howard, State of Missouri, and being in all 75 acres (and land accretions thereto), more or less, described as follows:
. . . . . .
"And whereas it has been suggested to the county court of Howard County, Missouri, that said county did not have any right, title or interest whatsoever in said land and that in truth and in fact said land is the property of Mrs. J.E. McGavock, James F. Royston and T.N. Kurtz, now, therefore, it is ordered that if said Leo N. Snell shall deliver a good and sufficient quit-claim deed properly executed conveying said land to the County of Howard or to the above named Mrs. J.E. McGavock, James F. Royston and T.N. Kurtz, the County Court of Howard County, Missouri, will upon good and sufficient proof of said delivery order the county treasurer to issue a warrant upon the County School Fund of Howard County for $100.00, the amount of the purchase price paid by said Leo N. Snell, payable to the order of said Leo Snell.
"It is further ordered that a true copy of this order be served upon said Leo N. Snell by the sheriff of Howard County."
The defendant refused to convey the land as requested in the above order. Up to that time it evidently had not occurred to anyone that any irregularities existed with reference to the sale and deed, or that the description by metes and bounds embraced more than seventy-five acres. But on December 19, 1938, the county court made another order which reads as follows:
"`In the matter of deed of February 8, 1934, to Leo N. Snell. December 19, 1938.
"`The attention of the court having been called to various irregularities in the above deed and of the facts and circumstances surrounding its execution and delivery and the present court being of the belief that said deed is void and that the land therein described is the property of Howard County, the Prosecuting Attorney, Jack H. Denny, is hereby ordered and directed with the assistance of Lionel Davis and Irwin, Bushman and Buchanan, to file an action in the Circuit Court of Howard County to determine the validity of said deed.
"`It is further ordered that the recited consideration in said deed, to-wit, $100.00 with interest at the legal rate from February 8, 1934, be deposited in the Circuit Court to be paid Leo N. Snell whenever he will accept the same.'"
The county also made an order offering to refund the amount of taxes which had been paid by the defendant. As to the employment of attorneys to file this suit Judge BISWELL testified as follows:
"Q. Did Mrs. McGavock or her husband or T.N. Kurtz or James F. Royston, anyone or all of them, promise your court if the court would allow them to use the county's name in this suit to set this deed aside that they would pay all the expenses and attorneys' fees and it would not cost the county court anything? A. Yes, sir, that is what I told them."
The evidence showed beyond doubt that the county court intended to convey only seventy-five acres of land to the defendant; that the defendant intended to buy only seventy-five acres and expected no more. All the parties were under the impression that the deed conveyed only seventy-five acres until the matter was closely scrutinized with an eye to finding a defect in the deed. The county surveyor testified that the prosecuting attorney, when he was ordered to prepare the deed, evidently copied the description from the plat or survey the surveyor had filed for record. We need not determine in this lawsuit whether the island contained more than seventy-five acres of salable land, and we express no opinion as to whether the sand bar was salable. The [242] question before us is whether a court of equity, under the circumstances of this case, was authorized to set aside the deed at the county's request. We are of the opinion that the answer must be in the negative. The irregularities upon which the county asks that the deed be canceled and held void were not serious and were of the county's own making. The irregularities, such as the county clerk's failure to note in the record that the county court ordered the land sold and the deed made, were no fault of the defendant. The clerk did make a record of the defendant's payment of $100 as a purchase price for the land. The same is true with reference to the form of the deed. Respondent argues that the acknowledgment did not conform to the law. It is argued that the words, "Pres. Judge, Howard County Court" are only descriptive of the person. In support of its contention respondent cites, among other cases, the dissenting opinion in Kansas City v. Hannibal St. J.R. Co., 77 Mo. 180, l.c. 188. The principal opinion, however, held that an acknowledgment of that nature was sufficient. The court, at page 185 of the opinion, quoted with approval the following taken from Carpenter v. Dexter, 8 Wall. 513:
"`In aid of a certificate of acknowledgment, reference may be had to the instrument itself or any part of it. It is the policy of the law to uphold certificates when substance is found, and not to suffer conveyances or the proof of them to be defeated by technical or unsubstantial objections.'"
The county court in this case considered the deed sufficient, when on December 7, 1938, it made an order or record which read in part — "whereas, on the 8th day of February, 1934, the county court of Howard county by and through its agent, C.R. Biswell, sold and conveyed to one Leo N. Snell the following described land to-wit:" thus reaffirming by an order of record that the county had conveyed and sold seventy-five acres of land to the defendant. The county stands in poor grace before a court of equity to ask that a deed be set aside on such minor irregularities especially when they were of its own creation.
Respondent cited many cases and also the statute, section 12754, R.S. Mo. 1939, to the effect that public lands cannot be sold by a county for less than $1.25 per acre. That was conceded to be the law in this case. No one contended otherwise. Defendant claimed to have bought only seventy-five acres and was under the impression that the deed conveyed no more. The county court was under a like impression. Note the evidence of Judge BISWELL in answer to the following questions:
"Q. Judge, at the time you signed that deed, how many acres of land did you think was included of land described in that deed? A. Seventy-five acres. . . .
"Q. You don't remember a discussion about the fact that it had to bring $1.25 per acre? A. I knew it had to bring $1.25 per acre. . . .
"Q. Now, did all of you agree on that with reference to the sale of this 75 acres of land? A. Well, the court must have agreed or I would not have signed the deed."
In such circumstances the county court was not entitled to have the deed annulled. The record made by the county clerk of the defendant's payment of $100 for the land, together with the deed filed for record, were sufficient upon which to predicate a nunc pro tunc entry of an order of sale. Had the order of sale been spread upon the record, as it was the duty of the county clerk to do, at the time the land was ordered sold it would have been a valid order. This case is unlike the cases discussed and reviewed in Simpson v. Stoddard County, 173 Mo. 421, l.c. 458, 463, 73 S.W. 700, where the transaction itself was void, for example, the sale of lands by a county for railroad stock. We need not speculate as to what remedy the county might have invoked, such as reformation of the deed to conform with the real intention of the parties. Such a question is not before us. It is clear, however, that the county is in no position to have the deed canceled. [Simpson v. Stoddard County, supra, 173 Mo. 421, l.c. 463, etc.] After the court reviewed the subject at length it said:
"We take it that it is no longer a disputed question that the doctrine of laches applies to a county or other municipal corporation, as well as to individuals."
Laches is only one branch of the subject of estoppel. The motives actuating the bringing of the suit in the name of the county were also tainted. It will be noted that when the question was first presented to the court it sought to have the defendant [243] deed the land to third parties on the theory that the county never had title. We may ask, if the defendant had complied with that request, would the real parties backing this lawsuit have contended that the quitclaim deed executed by the county passed no title? It will be noted that the record disclosed the suit was brought with an understanding that the third parties claiming the land should bear the expense.
Appellant in his brief asked this court to reverse the judgment of the trial court with directions to enter a decree reforming the deed so as to convey to the defendant seventy-five acres of land as described in his answer. The difficulty with this is that the defendant by his answer did not ask for a reformation of the deed. That question was not presented to the trial court by the pleadings. Such a question may be settled in a proper proceeding. Of course we do not express any opinion on that subject matter. Neither can this court in this case settle the question of whether the island in 1934, contained more than seventy-five acres, or whether the land referred to by the surveyor as sand was land within the contemplation of the law.
It is therefore ordered that the judgment of the trial court be reversed and plaintiff's petition dismissed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.