#### Pettis County v. Gibson, *Plaintiff in Error.*

1. Deed: powers :. evidence. A deed executed under a special power will not pass title unless the power was strictly pursued; that this was done, cannot be shown by recitals in the deed itself, but must appear *aliunde.*

2. Practice: objections to evidence. Failure to present an objection relating to the legal effect of a written instrument at the time it is offered in evidence, does not waive it. It may afterward be presented by instruction to the jury.

*Appeal from Pettis Circuit Court.*— Hon. ¥m. T. Wood, Judge.

.Affirmed.

*John E. Philips*for plaintiff in error.

1. The county was invested by law with the absolute ownership of and dominion over this land, and had power, through the county court, to sell, and to deal with it directly or by agent, as it saw fit. Wag. Stat., p. 875, §§ 41, *42;*p. 441, § 9; p. 408, § 3. The power to sell also carried with it the right to make a deed through the president of its county court. *Hann. $ St. Jo. E. E. Go. v. Marion Co.,*36 Mo. 304. ' The county, in disposing of this land, did not occupy the position of a mere trustee. She occupied a position analagous to that of the government itself — a landed proprietor. Her deed was *prima facie*evidence that all the prerequisites to a sale had been complied with; especially so when her authorized agent, Washburn, ascertained the facts of sale and payment, as he recites in his deed. *Swartz v. Page,*13 Mo. 610. His deed was binding on the county and passed the legal title. *Eeilly v. Chouquette,*18 Mo. 222.

2. There is nothing mandatory or exclusive in the terms of section 4, page 273, 1 Wagner’s Statutes, so as to prevent the county from disposing of its real estate in any other manner than through a commissioner. *Clark v.*
      *503Brown, 18 "Wend. 220; *Stafford v. Ingersol,*3 Hill 39 ; *State v. Bittinger,*55 Mo. 599.

3. The deed of Washburn is in exact conformity to the delegated power. And even if it did not fully refer to the order of his appointment, it being a naked power, the law would uphold the deed as an execution of the power. *Blagge v. Miles,*1 Story 426 ; *Hazel v. Hagan,*47 Mo. 277; *Henry v. Atkison,*50 Mo. 266; *Campbell v. Johnson,*65 Mo. 440; *Crane u. Lessee, etc.,*6 Pet. 598 ; *McKnight v. Winter,*38 Mo. 132, 136; *Gentry v. Robinson,*55 Mo. 260.

4. The order of the county court shows it had sold certain of the swamp lands; and when it appointed Wash-burn to make thé deed of conveyance on being satisfied, by affidavit of the purchaser, that the purchase money had been paid, and he accordingly made the deed, the county cannot, as against subsequent purchasers, disregard such deed and recover the land in ejectment. *Hann. &¡ St. Jo. R. R. Co. v. Marion Co.,*36 Mo. 305; *State v. Van Horne,*7 Ohio St. 331; *Jones v. Mack,*53 Mo. 147; *Bowlin v. Fur-man,*28 Mo. 427, 532 ; *Kinney v. Mathews,*69 Mo. 523.

*G. C. Heard*for defendant in error.

1. The deed made by Washburn, purporting to be executed by virtue of the power given him in the order, is not sufficient to convey the county’s interest in the land in controversy, unless it appears by proper evidence that this land was embraced in the order. The order does not, of itself, show that he had authority to convey the land to Glasscock, for it does not say that this is swamp land. The only intimation that it was swamp land, and was embraced in the order, is found in the recitals of Washburn’s deed. These recitals constitute no evidence, either of his appointment to make the deed, or that he made it in accordance with the power given him in the order. These two essential elements in every conveyance made by an agent, must appear by evidence *aliunde*the deed itself. *Watson v. Wat*
      *504
      *son,*10 Conn. 77 ; *Howard v. Lee,*25 Conn. 1; *Hart v. Stone,*30 Conn. 94; *Innman v, Jackson, 4*Me. 237.

2. The deed is void ; *(a)*Because the county court did not proceed in the manner pointed out by the statute, (Acts 1869, p. 69, § 6,) in relation to sale of swamp lands; (6) Because the court had no power to appoint its presiding justice to execute a deed.

Henry, J.

This is an action of ejectment by the county,, plaintiff, to recover possession of the southeast quarter of the southeast quarter of section 15, township 47, of range 23, lying in Pettis county. By an agreed statement, it appears, that, prior to April 10th, 1871, the county owned the tract in question, and defendant claims under a deed of that date,, executed by E. W. Washburn, president of the county court of Pettis county, to A. A. Glasscock — subsequent deed from Glasscock to one Allen and one from Allen to him. He introduced, as evidence of his title, the following order made-by the county court of Pettis county, at its April term, 1871: “ It is ordered by the court that E. W. Washburn, presiding justice of the court, execute and deliver deeds, conveying all the right, title, interest, claim and estate of the county of Pettis, of, in and to any and all swamp lands-that have been purchased by individuals, and on their making affidavit that the land has been paid for.” He then offered as evidence a deed executed by said Washburn to said Glasscock, which is as follows: “ Know all men by these, presents, that, whereas the county court of the county of Pettis, in the State of Missouri, by its order duly made and entered of record on the 3rd day of April, 1871, ordered and directed the undersigned, E. W. Washburn, presiding justice of the said county court, to execute and deliver deeds conveying all the right, title, interest, claim and estate of the county of Pettis, in and to any and all swamp lands that had been purchased by individuals from the said county of Pettis, and on their making affidavit that the lands had been paid for; and, whereas, Aldea A„ *505Glasscock has this day presented to me his written affidavit,, subscribed and sworn to according to law; whereas, the said Glasscock testified under oath that he had purchased of the said county of Pettis the following described swamp lands, situate in the county of Pettis, and that he had paid for the same, to-wit: The southeast quarter of the southeast quarter of section fifteen (15), township forty-seven (47), range twenty-three (23); * * the same having been heretofore purchased by him; and wherein he stated that he' had fully and completely paid the said county of' Pettis the whole amount of said money for the said lands ; now, therefore, I, the undersigned E. W. Washburn, presiding justice of the county court of Pettis county, as-aforesaid, for and in consideration of the premises, and by virtue and authority of the power in me vested by said order of said court, do hereby grant, bargain and sell and convey unto him, the said Aldea A. Glasscock, all the right,, claim, title and estate of the said county of Pettis, of, in and to the lands hereinbefore described, which I might, or could, by virtue of the authority in me directed by law, to. have and to hold the premises hereby conveyed, with all the rights and privileges and appurtenances thereunto belonging, unto him, the said Aldea A. Glasscock, his heirs and assigns forever. In witness whereof, I, E. W. Washburn,, presiding justice of the county court of Pettis county, have-hereunto set my hand and affixed my seal, this-day of April, 1871.

E. W. Washburn, [seal.]

Presiding Justice of the County Court of Pettis County.

To the introduction of this deed plaintiff objected, because “ the order aforesaid did not authorize said Wash-burn to make the deed, and because the county could only convey the land by a commissioner, and said deed was not made by such commissioner and did not show a compliance-with the order.” The court sustained the objection, and instructed the jury to find for plaintiff, which they accord*506ingly did, and from the judgment for plaintiff the defendant has appealed, and the correctness of the ruling and the instruction given are the principal questions for determination.

1. deed: powers: evidence.

The agency, or authority, of Washburn related only to swamp lands. It is so expressed in the order, and it devolved upon defendant to show that the land in dispute was swamp land, and without such proof, an essential link in his chain of title was absent. The recitals in the deed are not competent evidence that the land had been purchased or paid for by Glasscock, or was swamp land. The declarations of one assuming to act as agent of another, are not competent evidence to establish the agency, or that the matter of business he is transacting is within the scope of that agency, when the agency is limited and the very transaction itself does- not show it to be within the scope of the agency. It.is too familiar a principle to require the citation of authorities for its support, that other proof of agency than the declarations of the person claiming that relation to another, is required before the supposed principal can be held liable for his acts.

Again : By the terms of the order, Washburn was authorized to execute and deliver deeds conveying the title of the county to any swamp lands that had been purchased by individuals, on their affidavit that the land had been paid for. If such an extraordinary authority can be upheld, under our statute in relation to the sale and disposal of swamp lands, yet public policy, equally with well established principles of law, requires that the party exercising it should be held strictly within its terms. While the order of the court seems to require Washburn to be satisfied with the affidavit of the purchaser that he had paid for the land, it does not make that sufficient evidence of a prior purchase or that the land was swamp land, and nowhere else in the deed is it distinctly stated that the land was swamp land or had been purchased by the grantee, except *507as it occurs in the recital of the affidavit made by Glass-cock.

However this may be, upon the most familiar principles of the law of agency, the court did right in excluding the deed, in the absence of any offer to supplement it with evidence to show that the land was swamp land. One of the objections to the deed as evidence was that it did not show a compliance with the order of the court, and as its recitals are not evidence of the facts recited, this objection was well taken.

2. practice: objeetions to evidence.

But even if the specific objection now urged was not made when the deed was offered, its legal effect in connectioT1 wit]l order, had to be passed upon, and ^ jg never too late to ask the court to determine the legal effect of any instrument of writing introduced as evidence in a cause. Formal objections may be waived, but the question of the legal effect of evidence may be raised at any stage of the trial. If, therefore, the •court had admitted the evidence offered, and for the purposes of this decision, we may regard it as in evidence, still with all the other evidence introduced and offered, it showed no title in the defendant, and the instruction of the court to the jury, to find for plaintiff, would have been proper. The judgment is affirmed.