The State, to use of Township Forty-Four, Appellant, vs. Dent, Respondent, 18 Mo. 313

Ryland, Judge, delivered tbe opinion of the court. 1. The land sued for in this action, is a part of

section No. 16, in township 44, of range 6 east, lying in the county of St. Louis, being the north-east and north-west fractional quarters of said section, containing about 227 acres of land. The balance of the

section is covered by old Spanish grants, confirmed under acts of congress. The plaintiff claims the fractions of said sections as school lands, under the act of congress of March 6, 1820, by which the sixteenth

section in each township in the state of Missouri is granted to the state for the use of schools in the several townships ; and where such

section is sold or otherwise disposed of, lands equivalent thereto and as contiguous as may be, are granted. The defendant claims the north-west fractional quarter of said section, by purchase at public sale, as public land, from the register and receiver of the United States, under the act of congress of February 17, 1818, for which he obtained a patent 20th May, 1824. The north-east fractional quarter was entered as public land, by the defendant, and the patent of the United States therefor was issued 18th April, 1831; and the defendant has been in possession of the land since the date of the patents. On the 3d March, 1823, it was enacted by congress that, where a part of the sixteenth

section had been disposed of, a location of land in lieu thereof might be made, and the registers and receivers of the several land offices of the United States were authorized by the act to make the selection and location, and had the power to include or exclude the residue of the sixteenth section.

The act directed “ a descriptive entry of such selected lands to be made on the books of the register, specifying the township in which, as that for the use of which the selection shall have been made.” The register and receiver were to make the selections as soon as might be, and the lands thus selected and located, were granted in lieu of the sixteenth section. The first commissioners for school lands were appointed by act of the legislature of Missouri, of 6th of December, 1820. 1 Terr. Laws, 698. The second act of the legislature of the state was passed December 17th, 1822. 1 Terr. Laws, 105.

These acts provide generally for the preservation of the school lands granted, or that might thereafter be granted for the use of schools. Under the second act, the county court of St. Louis county appointed school commissioners for the several townships, on the 27th February, 1823. It appears from the report of the chairman of the board of commissioners thus appointed, that they organized soon after their appointment, and selected lands in lieu of the sixteenth sections sold or disposed of, and that “ in lieu of

section 16, township 44 north, .range 6 east, “section 31, in township 45 north, of range 6 east, containing 669 acres,” had been selected. The school commissioners, under the act of the Missouri legislature, had no power to select or locate the lands in lieu of the sixteenth sections otherwise disposed of, in whole or in part; but it is evident from the record, that the register and receiver of the United States, who had this power under the act of congress of 1823, cooperated with the school commissioners, agents for the state, pro hac vice, in the selection and location of these lands.

We cannot suppose that the register and receiver were required to leave their offices and hunt about the country and see what lands should be selected for the sixteenth sections already disposed of, and select the lands in person. The commissioners of the school lands, interested more, in all probability, than the register and receiver, would take pains to ascertain the best selections, and then consult with the register and receiver and communicate their views and their choice of the lands ; and thus the register and receiver would make the entries on their maps and books of the selected lands.

Accordingly, we find the following entries on the township plats in the register’s office, of townships 44 and 45, in said county: T. 44 N., R. 6 east; “ Sec. 31, in T. 45, reserved in lieu of S. 16, in T. 44, as school land.” In township 45, the following entry is written across

section 31: “ Reserved for sec. 16, in township 44 N., R. 6 east.” These entries on the plats in the register’s office, appear to be ancient entries ; and the fact that the defendant bought the north-west fractional quarter of

section 16, in township 44, at public sale, by the register and receiver, for which he obtained a patent in 1824, proves, beyond any reasonable doubt, that the selection of

section 31, in township 45, was made by the register and receiver of the United States, prior to the date of the patent to the defendant. The inhabitants of township 44 exercised acts of ownership over

section 31, in township 45, so reserved and selected as school lands for their township ; and on the 2d day of June, 1838, pursuant to the law then in force, they petitioned the county court for the sale of

section 31, in township 45, for the benefit of the schools. The sale was ordered, the land was sold, and the proceeds were received by the trustees of the inhabitants and invested for the use of schools in township 44. The acts of the register and receiver of the United States, in the selection of

section 31, township 45, in lieu of

section 16, township 44, and the approval of those acts of selection and location by the school commissioners and the inhabitants of township 44, are conclusive against the claim of the plaintiff to the land sued for, under all the facts and circumstances, as they appear in this case. There was but one

section of land granted to each township for the use of schools, and township 44 has received and used a

section of land located under the act of congress of 1823, and the plaintiff cannot now be permitted to call in question the validity of those acts of location by which the title to the land in

section 31, township 45, was vested in the state for the use of schools in towmship 44. The defendant, Dent, purchased the land sued for of the United States, upon the faith of those acts of selection and location, which were expressly designed to influence the action of the agents of the United States and of the defendant in that behalf.

Under a grant' for a section, which usually contains 640 acres of land, the state, through the action of its agents, and of tbe officers of tbe general government, has obtained a title to 669 acres for tbe use of schools in township 44, and after accepting and selling such land, under such grant, tbe pretence is now set up, thirty years nearly after the location, that the state is not bound by it, and that a court of justice would aid the state in taking the land sold by the United States to the defendant, upon the faith of such location.

We consider the government of the United States and the state of Missouri both bound by the location and selection of the land in township 45, in lieu of the sixteenth section, in township 44, and that the effect of that selection and location was, to satisfy the grant made to the state by tbe act of 1820. Upon this view of the case, then, the court below committed no error to the plaintiff’s prejudice, in refusing to give the instructions asked for by the plaintiff, or in giving those for the defendant. The judgment of the court below is affirmed; Judge Scott concurring. Judge Gamble did not sit in the cause.