Burgess v. Gray

15 Mo. 220 | Mo. | 1851

Gamble, J.,

delivered the- opinion of the- court.

The petition alleges that John Jarnott, alias Gerard, in 1780, with the permission of the officers of the Spanish government, settled upon a tract of land now in Jefferson county, and continued to inhabit and cultivate it until 179’6, when he was driven off by the Indians. His sou Joseph succeeded him in possession of the land,, and he continued to reside upon and cultivate it until he sold it to one Kendall, in the year 1812. Kendall filed a notice of his claim with the recorder of land titles, who considered and rejected it. The right of Kendall, upon his death, descended upon his heirs, and that right is vested in the plaintiff by conveyances filed with the petition. The plaintiff, since his purchase, has always been in possession. The claim was laid down upon the map of the public lands in the register’s office, as reversed to satisfy John Jar-not’s legal representatives.

In 1847 pre-emptions were allowed to different persons for different parts of the tract, and they made their separate entries, each person-purchasing for himself. These purchasers are'the defendants; and the plaintiff alleges that they all had notice of his claim, and of the- reservation of the land from sale.

The prayer of the petition is, that the defendants be compelled! to abandon their illegal claim to the land. The defendant’s demurred to the petition, and assigned as causes of the demurrer, 1st. That the petition showed no right in the plaintiff to maintain his- action; 2d. That separate and distinct causes of action against different person® were joined in the petition.

The demurrers were sustained by the circuit court of Jefferson county, and the plaintiff has appealed to this court.

It is to be observed, that the plaintiff shows no confirmation of his claim. The first and only assertion of it before any tribunal, was, its exhibition to the recorder of land titles by' Kendall, after his purchase in Í812. The recorder refused to recommend it for confirmation, and since that time it has been utterly neglected. It is true, that the counsel now claim that it was confirmed by the second section of the act of the 3d March, 1807, 2 U. S. Statutes at large, 440; hut this is an entire misapprehension of the effect of that section. The words which declare that a certain class of claims “shall be confirmed” are only a direction to the board of commissioners to confirm the claims which may be brought within the class by evidence produced before them; and by bo means import a present confirmation by the direct action of congress upon the claims.

The plaintiff, then, is to be regarded as the holder of an unconfirmed claim to land which the defendants have purchased from the United States, and the question is presented by the demurrer, whether such a title will authorize him to apply to a court for the relief he seeks.

The supreme court of the United States, in Le Bois vs. Brammell, 4 Howard, 462, and in Mevard vs. Massey, 8 Howard, 307, distinctly declare, that until an inchoate title, originatin'^ únddr the Spanish government, has been confirmed, “it has no standing in a 'court of law or equity.” This language was used in cases where the claimants had formal concessions from the Lieutenant Governor, and will certainly apply with as great force to a claim which rests upon a settlement made upon the domain by the permission of the Spanish officers.

The plaintiff then, has no title which authorizes him to ask the relief prayed for in his petition. But, he alleges that the land was, by different acts of congress, reserved from salé in order to satisfy his claim, and therefore the purchases made by the defendants were void. Suppose it to be true, that the reservation did exist, and that its effect would be to render the purchases void, still, his position in court is not changed thereby. The reservation confers no title on him, and the nullity of purchases made by the defendants does not enhance the merits of his title. He is still without any title that we can enforce.

In the argument, much íelianee has been placed upon the case of Perry vs. O’Hanlon, 11 Mo. R. 588, as supporting the right of the plaintiff to maintain this action.

Perry owned a Spanish claim, which, under the provisions of the laws of the United States, he relinquished, and obtained thereby the right to purchase the land claimed. Ho made the purchase, and afterwards the commissioner of the general land office directed the purchase to be vacated. The land was reserved from sale on account of Perry’s claim, and that claim was, by his relinquishment under the act of congress, changed into a right of pre-emption to the same land. O’Hanlon claimed by purchase while the reservation continued. This court decided, that notwithstanding the action of the commissioner of the general land office, Perry’s title, under his purchase, was a valid subsisting title, sufficient to maintain his action of ejectment, and that the purchase under which O’Hanlon claimed, being made while such purchase was forbidden by lav/, was void'. The obvious distinction between that case and the present, is, that the plaintiff, Perry, was asserting a title which our laws recognize as a title under the United States, conferring a right to the immediate possession of the land, while the plaintiff, in this case has no title that can be regarded in a court of justice.

If the plaintiff should obtain a confirmation of his claim, and should then find himself obstructed by void entries or void patents, he can come into court and dispute their validity, but in his present condition, coming as a plaintiff to complain that other persons hold certificates and patents for the land to which he has now no title, he can have ao relief.

The demurrers were properly sustained, and the other judges concurring, the judgment of the circuit court is affirmed.