into the details, or into the effect of this, which the state and counties subsequently grant. It has been held, however, that the is- dealt with these lands. suance of the patents therefor to the state, or any delay in the issuance thereof, or in the selection as swamp lands of the lands falling within the definition, did not defeat or impair the title of the state or that of the state's grantees. The state and her grantees might be embarrassed in the assertion of their rights, in that proof aliunde as to the condition of the lands in question might be made necessary, that is, as to whether in fact the lands were swamp and overflowed or not, but no other consequences would follow. Irwin v. San Fran. Sav. Union, 136 U. S. 578, 10 Sup. Ct. 1064, 34 L. Ed. 540; Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985, 30 L. Ed. 1039; Tubbs v. Wilhoit, 138 U. S. 134, 11 Sup. Ct. 279, 34 L. Ed. 887.

lands to the counties in which they lie." | artificial sort of way, of placing the drainage Laws of Mo. 1850-51, p. 238. This act recit- and reclamation of the swamp lands into ed, in the first section thereof, that: the hands of the county courts of the coun"In order to provide for the reclamation of all ties in the said southeastern group. It will overflowed and swamp lands which were granted be noted now that as to the manner of recto the state of Missouri, for that purpose, by lamation, as to the officers who were to have an act of the last session of the Congress * all said lands in this state are hereby charge of such reclamation, as to the sale of donated to the counties in which said lands re- such lands, and as to the ultimate resting spectively may be situated." place of the net proceeds arising therefrom (to wit, into the several school funds of the several counties of such group), and as to the

As stated, the southeastern group was by this same section expressly excepted. The county court of said several counties, ex-person who should issue patents thereto (to cept the southeastern group, was by virtue of said act authorized to order the sheriff to sell said lands in such quantities, at such time and place, and on such terms as such court may think proper. Upon the making of full payment for any of said lands, this act provided that a patent therefor should be signed by the Governor and countersigned by the Secretary of State. The act provided that proceeds of all such lands, after paying the expenses of drainage, reclaiming, surveying, and selling the same, were to be paid into the county treasury and become a part of the common school fund of the given county in which the land lay. The Governor of the state was required by this act, as soon as he should receive from the government of the United States lists and plats of such lands, to transmit copies thereof to the several county courts wherein such swamp lands might lie. This act specifically mentions and excepts Pemiscot county, having been approved 12 days after the erection and organization of said county.

wit, the Governor of Missouri), all of the counties in the state having swamp lands stood upon a parity. In effect, by section 9 of this act it was provided that such lands might be sold for not less than $1 per acre. We say in effect, because it will be noted that this section does not provide for the sale of land, but for scrip, which was locally known as "swamp land scrip." This scrip was issued to these who might do the work of drainage and reclamation, or, perhaps, at times for cash to be expended upon such work, and later on, at the will of the holder of such scrip or of his assignees, it was "located," as it was locally called, by selecting from the list of the local register of lands those certain swamp lands which the "locater" desired to buy. Afterwards such swamp land scrip was turned into the receiver of public moneys of the local land office, who thereupon issued a certificate of entry, locally so-called, but in fact and reality a receipt in triplicate, to the holder of the scrip who was the purchaser of the land. This receipt, or certificate of entry, entitled the purchaser to a patent, as we shall see more in detail later.

So remained the status as to title of these swamp lands so far as the southeastern group is concerned till the meeting of the The Eighteenth General Assembly passed Seventeenth General Assembly. This Legisla-an act amending the act of February 13, 1851, ture passed an act approved February 23, by repealing so much of the same as required 1853, entitled simply, "An act donating the counties of the southeastern group to reswamp lands to the several counties in which fund to the state the proportion each of them they lie." Laws of Mo. 1852-53, p. 108. This had received of the $50,000 heretofore menact applied only to the above-named 10 coun- tioned. Laws of Mo. 1854-55, p. 160. This ties in the southeastern group. The first sec- same General Assembly passed an act on the tion of said act donated these swamp lands 28th of February, 1855, which contained but to the counties in the southeastern group one section. This act was entitled “An act upon the same terms and provisions of the amendatory of an act donating certain swamp act of March 3, 1851, supra, applying to all and overflowed lands to the counties in which the other counties in the state. But it was they lie, approved March 3, 1851." Laws of required that such southeastern group should Mo. 1854-55, p. 160. This one-section act was refund to the state the $50,000 by the state in full, enacting clause omitted, as follows: appropriated for the use of the board of swamp land commissioners in the drainage and reclamation of the swamp lands in such group. It was also provided that the counties in said southeastern group should be entitled to their proportion of the money due to the state of Missouri from the United States on account of swamp lands erroneously sold On the next day following the passage of the by the United States, or taken by squatters act last above set out the most important act, under pre-emption claims, between September so far as concerns the counties in the south28, 1850, and March 3, 1857. This also abol-eastern group, was passed. This act was enished the board of swamp land commissioners titled "An act in relation to swamp lands in of the southeastern group which had been the counties of New Madrid, Pemiscot, Miscreated by the act of February 13, 1851. This sissippi, Scott, Cape Girardeau, Stoddard, act had the effect, in a very crude and in- Wayne, Ripley, Butler and Dunklin." Laws

"Section 1. That the several county courts of this state are hereby authorized to sell and dispose of the swamp and overflowed lands within their respective counties, either with or without draining and reclaiming the same, as in their discretion they may think most conducive to the interests of such counties. This act to be in force from its passage.”

of Mo. 1854-55, p. 154. This act contained | ing such the identical information which a group within a group in this: That a sub- was required to be given by the register's group consisting of Scott, Dunklin, and Pem- abstract of purchase. Upon the receipt of iscot counties was erected in the said south-such certificate, receipts, and abstract by the eastern group, and certain small differences register of lands at Jefferson City, and upon in administration and administrative offices his comparing the same and ascertaining that was provided for this subgroup. This will they were correct, it became the duty of the be hereafter referred to, as well as another Governor to cause to be issued a patent to small difference in this act, which latter vari- the purchaser of such land. This act also ation affected Pemiscot county alone. provided, in section 19 thereof, for the survey by the counties through their county courts of all swamp lands in such counties which had not theretofore been surveyed by the authority of the United States, and for the filing of one copy of the surveyor's plats and field notes in the office of the county register of lands, and one copy thereof with the state register of lands. This was later changed by a local act as to Pemiscot county (Laws of Mo. 1856-57, p. 473), by requiring these latter plats and field notes to be filed with the Secretary of State.

tain provisions were made more nearly defining the right of pre-emption, which right was specifically conferred by the act of March 1, 1855, supra. This act also provided that in all counties wherein registers and receivers were required to be elected, such officers should hold their office for the term of two years, and that vacancies should be filled by appointment of the county courts, except in Mississippi county, wherein the Governor was given the right to appoint such register and receiver. This act is a very fine example of the manner in which legislation upon the subject of swamp lands was rendered ambiguous, doubtful, complicated, tangled, and irreconcilable.

It may be noted as important upon the question of the deraignment of a swamp land title, that chapter 93, entitled "Swamp and Overflowed Lands" (R. S. of Mo. 1855, p. 1005), did not apply to such southeastern group, and therefore did not apply to Pemiscot county, for section 20 thereof expressly exempts the counties of the southeastern group from the provisions of Chapter 93.

This act explains and throws full light upon an act passed on the 4th day of November, 1857, following. Laws of Mo. Adj. Sess. 1857, p. 269. Read in the light of the act next before mentioned, and which gave power to the county courts to issue patents to swamp lands in said five counties, the act last mentioned seems more reasonable than it would otherwise at first blush appear. This last-mentioned act was entitled "An act supplementary to an act entitled 'An act in relation to the disposal of swamp lands in the counties of Cape Girardeau, Dunklin, Mississippi, New Madrid and Pemiscot, approved February 27, 1857.'" The first and only section of the latter act provided in full, enacting clause omitted, as follows:

"Section 1. That the Secretary of State is hereby required to return by the course of mail, for said lands, to the respective county courts all the certificates of entry and payment of and named in said act, and that the county courts of the respective counties so named shall have the entire control of the matters contemplated in said act, any law to the contrary notwithstanding. This act to be in force from and after its passage." Approved November 4, 1857. (Italics ours.)

The act to which the section last above was expressed to be an amendment declared itself to be a public act. The act above set out has been productive of practically all the trouble and legal difficulty which have arisen in the five counties of the southeastern group, particularly and specifically mentioned in this act. Many of these counties have lost their records by fire or by war, in which

purchase kept on file by the register of lands and the duplicate receipts for the purchase money kept on file by the receiver of public moneys, as well as the triplicate of the certificates of purchase and receipts formerly in the hands of the state register of lands, and returned by him pursuant to the act of November 4, 1857, were all wiped out of existence, leaving no original records except a little slip of paper held by the original purchaser. When the latter was lost and the records burned or destroyed by war, as either partially or wholly transpired in Pemiscot and other counties, the entire transaction was wiped out of existence, so far as any paper records thereof was concerned.

The nineteenth General Assembly passed an act on the 27th of February, 1857 (Laws of Mo. 1856-57, p. 271), entitled simply, "An act in relation to the disposal of swamp lands," which again subdivided the law touching swamp lands in the southeastern group by providing that whenever the county courts of either of the counties of Cape Girardeau, Dunklin, Mississippi, New Madrid, and Pemiscot should be satisfied that full payment had been made according to the terms catastrophies the duplicate certificate of of sale for any of the lands sold as swamp lands under any of the acts of the General Assembly of this state authorizing such sale, they shall cause to be issued to the purchaser, his heirs or assigns, a patent for the same. This patent was to be issued in the name of the state under the seal of the county court of the county issuing it, and to be signed by the president of the county court, and attested by the clerk thereof, and should grant and convey to the grantee therein named all the right, title, and interest that the county had acquired to the land therein described under the several acts of Congress and of the General Assembly of this state. By a further section of this act it was made the duty of the Governor to furnish to each of such counties a list of all the swamp lands therein, which list was required to be filed in the office of the county clerks of such counties, and was to become a public record, and a copy thereof, it was provided, was to be received as prima facie evidence of title in such county, to such in all courts and places in this state. It was further provided that said act should be a public act, and be in force from and after its passage. The effect of this enactment was to take these five counties named above, out of the southeastern group so far as concerns the manner of issuing a patent to the swamp lands therein.

If it be asked why patents were not issued by the several counties of this state upon the filing at Jefferson City with the register of lands of the triplicate certificates of purchase and the triplicate receipts for the payment of the purchase money, the answer is that for more than 20 years the slow matter of selling these swamp lands and the matter of issuing patents to the state by the United States therefor were dragging along without being fully accomplished. The lands were being surveyed and patents were being issued therefor all these years. Likewise and on account of delays in surveying and consequent selection of the lands as swamp lands, and on account of the Civil War, the state

of Missouri did not issue these patents to register of lands being furnished, by the vathe several counties in which these lands lay, rious county courts, an abstract of all the for the most part, until subsequent to the sales of such lands made subsequent to the year 1870, and from 1870 down, in many period aforesaid. Just he. it may as well cases to a much later period, these patents be said that, by section 6 of the later act were made to the state, and by the state to above referred to, that of March 10, 1869, the the several counties from time to time. Prac- matter of issuing patents to swamp lands was tically none of them, if any at all, were is taken from the register of lands and put into sued promptly. The delay on the part of the the hands of the county courts wholly, where state authorities was due to the delay in the it has ever since remained. It will be noted, selection of this land by the Interior Depart- however, that as to Pemiscot, Cape Girarment and to the delay of the United States deau, Dunklin, Mississippi, and New Madrid government to issue patents to the state counties, the authority in their several countherefor. Hence it was that the title to many ty courts to issue patents to swamp lands alhundreds of tracts of these lands depended ready inhered and had existed continuously from 1855 solely on these receipts to the pur- from and pursuant to the act of February chasers from the office of the receiver of pub- 27, 1857 (Laws of Mo. 1856-57, p. 271 et seq.). lic moneys. In a great number of cases nei- Such patents had not been so issued in the ther the state nor the county had patents great majority of cases by reason of the therefor till subsequent to the year 1870. vicissitudes of war, and because of the delay What is said touching delays in issuing pat-in selection of these lands as swamp, the deents applies to the conditions only in the southeastern group.

Another act affecting the swamp lands in the state was passed by this same Nineteenth General Assembly. This act was entitled “An act amendatory of an act entitled 'An act donating swamp and overflow lands to the counties in which they lie,' approved December 13, 1855." Laws of Mo. Adj. Sess. 1857, p. 32. The above act contained but two short sections, the first of which provided that all swamp lands which have been or may hereafter be patented to the state "be and the same are hereby declared to vest in full title, and belong to the counties in which they may lie." The second section merely provided that the act should take effect and be in force from and after its passage, any law to the contrary notwithstanding.

Following this no other act of importance, so far as the title to this land is concerned, was passed by the Legislature until the acts respectively of March 27, 1868 (Laws of Mo. Adj. Sess. 1868, p. 68), and the act of March 10, 1869 (Laws of Mo. 1869, p. 66.) A combination of these two acts, carried into the subsequent revisions, have come down to us as the law of to-day in all the counties in the state touching these lands. Some minor amendments have been made, but they are of comparatively recent date, and affect only a limited portion of the lands in the southeastern group.

The act of March 27, 1868, supra, was entitled simply "An act in relation to swamp and overLowed lands." It put the control of such lands, as well as the matter of issuing patents therefor, wholly into the hands of the several county courts of the counties of the state; it provided that none of said lands should be sold for less than $1.25 per acre within five years from the 1st day of January, 1866; it provided that the state register of lands should issue a patent to all lands which had been sold by the several county courts in their respective counties since the 4th day of November, 1857, upon such state

lay in issuing patents from them to the state, and the delay in issuing patents by the state to these counties. The lands were regarded for the most part in those days as being utterly worthless, and trouble or money expended for a patent, even if the other reasons suggested had intervened, was an unnecessary toil and a useless expense. At any rate, no such patents for untold thousands of acres of this land were issued, which fact regardless of a good reason or any reason for the omission makes out a condition to be met, and explanations become valueless.

The proceeds of the sale of all such sales of swamp lands, after paying the expenses of drainage, reclaiming, surveying, and selling the same, were required to be put into the county treasury and to become a part of the public school fund of the county in which the land lay. It was further provided that settlement should be made with the several counties for moneys paid by the general government to the state on account of unauthorized sales by the United States of portions of these swamp lands, and on account of settlement by the United States pre-emptors.

The said act of March 10, 1869, supra, by the first section thereof, threw an illuminating light upon what has been said above touching the delay by the state to make the counties patents for these swamp lands. For it will be noted that it says:

"In order to convey to the different counties in the state of Missouri a complete title to all the swamp and overflowed lands, which were granted and have been patented to the state of Missouri by an act of Congress * * * the register of lands is hereby directed to prepare a patent or patents, embracing all the swamp or several counties of this state, conveying thereby overflowed lands, lying within the limits of the all the title and interest of the state of Missouri in and to such lands, to the counties in which such lands may lie"

and which patents when prepared were required to be signed by the Governor, attested by the Secretary of State, and recorded with the register of lands in his office. But for