29 Mo. 84 | Mo. | 1859
delivered the opinion of the court.
As preliminary to the main and most material point in the case, we will notice briefly an objection to certain evidence, documentary and oral, which was admitted on the trial, and which is assigned for error. The documentary evidence consisted of official letters of the commissioner of the general land office and the first auditor of the treasury, showing the action of that department upon the-application of the ap
We think the evidence was properly admitted. The letters of Messrs. Young and Collins, first referred to, show the action of the department upon Carman’s application, and the act of Congress by which they were governed in ordering the money to be refunded to him for the land he had erroneously .entered. The other letters are the official correspondence of the commissioner and the officers at Palmyra relating to the contested case of Carman and Johnson, which present their official action in the premises and the grounds upon which that action was predicated. These documents; with others offered and read on the trial, were part of the same transaction, and were admissible as evidence of the official acts of officers, the validity of which was the very question involved.
As to the testimony of Rush relating to the usage of the office, it is sufficient to say that, so far as it was [at] all material or relevant, it was but a statement of what is obvious upon an inspection of the law governing the land officers in such cases, and what must have been the practice of the office if the law had been complied with.
The material point to be considered is whether there was any legal application for the land in controversy pending at
This question must be determined by the acts of Congress on the subject of correcting erroneous entries of land and of refunding money by the government to purchasers in such cases.
The first act on this subject is that of March 3, 1819, which provides that in every case of a purchaser of public lands at private sale having entered a tract different from that intended, and being desirous of having the error corrected, he shall apply to the register of the land ofiice, and if it appear to the satisfaction of the register and receiver that an error has been made, and that the same was occasioned by original incorrect marks made by the surveyor, or by the obliteration or change of the original marks and numbers, or that it has, in any otherwise, arisen from mistake or error of the surveyor or officers of the land office, the case is to be reported to the secretary of the treasury, with the testimony and the opinion of the land officers thereon ; and the secretary of the treasury may direct that the purchaser shall be at liberty to withdraw the entry so erroneously made, and that the moneys which had been paid shall be applied in the purchase of other lands in the.same district, or credited in the payment for other lands which shall have been purchased at the same office. (3 U. S. Stat. at Large, 526.) The next act is that of May 24, 1824, which is supplementary to the the foregoing, and extends the provisions of the act of 1819 so as to embrace cases where the error was not occasioned by the acts of the officers mentioned in the latter, and to cases of entries, not intended to be made, by a mistake of the true numbers designed to be entered; and it also provides that the purchaser, under certain restrictions as to
Premising that the application of Carman, the appellant, upon which he relies, was made to the register on 26th May, 1847, and the entry of the respondent in June thereafter, the affidavit of Carman, accompanying his application, states that he applied at the land office at Palmyra and entered a tract of land different from that in dispute (which he describes) in September, 1846, and, being since informed that said tract had been previously purchased by the Hunts, he asks to change said entry and locate in lieu thereof the land in controversy. Annexed to this is the affidavit of Griffith,, to the effect that he believed the appellant did not know the
Whether there was any legal or valid application by the appellant for the land in controversy depends upon the fact whether the land erroneously purchased previously was or was not the property of the United States at that time; if not, this fact, irrespective of the mere form of the application or what it may set forth, would seem to be decisive of the question. If his entry was void for this reason, he could only ask to have the money refunded by the government. He could not ask to withdraw the entry and have his money transferred to any other land. The.act of 1825 is not supplementary or amendatory of any-previous act, but is substantive and independent, and provides for a class of cases not embraced by any other law. The case of the appellant falls within the provisions of that act, because his purchase was void for want of title in the United States. This was the view of the subject taken by Commissioner Young and the officers of the treasury department, as is evident from their action on the application of the appellant in directing his money to be refunded, and in which reference is expressly had to the act of 1825. The money was refunded, and the land not actually entered until the ,4th February, 1848.
It is manifest that there is no authority under the act of 1819 for refunding purchase money, for land erroneously entered, because, if there was, there would have been no necessity for the act of 1825, which expressly authorizes this to be done. Instead of being refunded under the former act, it
In this view of the acts of Congress and of the application of Carman, it follows that the land in. controversy was subject to entry on the 21st June, 184T; and the respondent having paid his money and obtained a certificate of purchase, he acquired rights which could not be divested by the acts of the land officers or of the appellant. The application and entry of the latter was a nullity and gave him no legal or equitable right. The land, in contemplation of law, was in the same condition, when the respondent applied for it, as though the appellant had made no application or made no
Upon an issue submitted to the jury on the trial of the cause, they found that the appellant had notice of the prior right of the respondent, and that the patent under which he claims title was obtained by fraud. Under such circumstances, the entry of the respondent will prevail over the patent granted to Carman, and is of course unaffected by any acts of the land officers at Palmyra or the commissioner of the general land office, which, as we have seen, were without authority of law.
the judgment will be affirmed.