30 Wis. 653 | Wis. | 1872
Ejectment for the S. E. i of the S. E. ¿ of section 24, in township three, north of range four east, in La Fayette county. The plaintiff claims title by patent from the United States, and the defendant under a tax deed. The controversy turns upon the true date of entry or location by the plaintiff of a military land warrant upon the land, whether the same was the 27th of July, 1854 or the 29th of December, 1865.
Tbe controversy arose and the alteration is shown to have come about in this way.. On tbe 27th of July, 1854, tbe plaintiff applied at tbe local land office to locate military land warrant numbered 84,490, issued under tbe act of congress of September 28th, 1850, upon tbe south east quarter of tbe north east quarter of tbe section, and bis application was received and tbe location made and tbe proper duplicate certificate issued. Upon tbe application with warrant annexed and tbe certificate being for.warded to tbe general land office at Washington for tbe patent
Tbe evidence introduced by tbe defendant to show that tbe location was made in July, 1854, and consequently that tbe land was taxable in 1857, when tbe taxes were levied under •wbicb be acquired bis deed, consisted of certified copies from tbe general land office of tbe certificate and application in their
To rebut tbe case thus made by tbe defendant, tbe plaintiff introduced fac-similes or exact exemplifications of tbe application and certificate as they appeared on' tbe files of tbe general land office, duly authenticated by the signature of tbe commissioner and seal of tbe office, and to which was attached a note, marked “A,” “for explanation of erasures and corrections,” as stated and referred to by tbe commissioner in bis certificate. From these exemplifications, now before us for inspection, it appears very plainly that tbe letter “2V” in tbe word “North” in tbe application has been erased, and tbe letter “N” substituted. Parts of tbe letter UN” as once written, are still visible, tbe same not having been completely erased. Tbe change of tbe letter “r” to a “u” also clearly appears. Tbe letter, as now, is awkward and contracted for want of space, and clearly remodeled from tbe former “r.”
Written across tbe face of tbe same document and erased by a line running through them are tbe following words and figures: “Location cancelled, see letter to E. and E., Feb. 28, ’56, S.” By “ E. and B.” we understand register and receiver of tbe local land office. Upon one margin and on tbe face of tbe paper is tbe following endorsement in writing: “ Location reinstated, Dec. 29,1865. See letter to E. and B., La Crosse, Wis.” Tbe following written entries also appear upon tbe opposite margin: “ See letter from locator, Dec. 19th, 1865, accepting SE. SE. 24, 3 U. 9 — 67, 904. Turner.” See Begr’s Beport, April 15th, 1856, filed with Wt 24, 185, 160, 1850, Turner.”
And in tbe certificate tbe erasure of tbe “ N ” and writing of
Tbe note “A.” attached to these exemplifications, reads as follows: “ Note. — Tbe only erasure and correction found in tbe papers referred to, consists in changing tbe description of tbe land in tbe application and duplicate certificate from tbe S.E. 4 of N.E. 4 to S.E. 4 of tbe S.E. i, as per report of tbe register and receiver of July 15th, 1856, which states that tbe records of them office show that warrant No. 84,490 was located on tbe S.E. i of S.E. 1, Sec 24, T. 8, R. 4, E.; and Thomas Ansley’s letter of acceptance, dated Deo. 19th, 1865, which states: “ In conformity with your proposal, I accept of tbe S.E. 4 of the S.E. 4, 40 acres, in place of S.E. 4 of N.E. 4, located with military land warrant No. 84,490, sea 24, 8, 4 E.”
In addition to tbe foregoing and authenticated by tbe same certificate of 'the commissioner, was a copy of tbe entry of tbe location made at Mineral Point, Wisconsin, land office, with bounty land warrant No. 84,490, for forty acres, by Thomas Ansley, on tbe 27th day of July, 1854, as taken from tbe abstract of locations reported to tbe general land office, by tbe register and receiver of tbe land office at Mineral Point, for tbe month of July, 1854, and still on file in tbe general land office. This abstract showed tbe location at that time to have been made upon tbe south-east quarter of tbe north-east quarter of tbe section.
Tbe other evidence which tbe plaintiff was permitted to give, consisted of a duly certified copy of his letter to tbe commissioner dated December 19, 1865, and a copy of tbe letter of instructions of tbe 29th of tbe same month, addressed by tbe commissioner to tbe register and receiver of tbe land office at La Crosse.
Having first established its genuineness by tbe testimony of a witness and also tbe official character of tbe writer, tbe plaintiff offered in evidence an original letter from tbe commis
Whether the document certified by the commissioner to be a “ copy of a statement on the records of this office, in relation to the location, cancellation and re-instatement thereof, with bounty land warrant No. 84,490, for 40 acres, act of 1850, by Thomas Ansley,” and “a true and literal exemplification thereof, taken from the said record,” was admissible in evidence or not, is a point of more doubt. If such a statement of record is required or authorized by the laws of congress or the established practice of the land department, then perhaps a duly certified transcript of it would be admissible, but otherwise not. We are not informed as to the laws of congress on this subject nor the practice of the land department.
But without the aid of any of the documentary evidence and testimony which was offered and rejected, we think the alteration was very clearly and sufficiently shown by the evidence which was admitted: The evidence admitted, leaves not the slighest doubt in our minds, and it seems from the language of the charge that it would not have left any in the mind of the learned judge, before whom the cause was tried, had the case been one where the altered writings themselves were produced and exhibited before the court and jury. He charged the jury: “ On consideration, I do not think that any of the testimony introduced by the plaintiff is admissible to prove an alteration of written instruments not before the court.” It is very true that the original instruments, could they have been produced, would have afforded much more satisfactory evidence. But in this case it was impossible to produce them, since no subpoena would take them out of the land office or compel an exhibition of them in court. The plaintiff produced the next best evidence possible, fac-similes or copies as literal and exact as could be made, duly authenticated as required by law, and no more could be required of him. By this and other means and evidence he established the alteration very satisfactorily, and was entitled to the benefit of the proof. ^ Why the alteration
By the Court. — Judgment reversed, and a venire de novo awarded.