Clark v. Hall

19 Mich. 356 | Mich. | 1869

Cooley Ch. J.

This suit comes before us on writ of error sued out to reverse a judgment recovered by Hall in the Circuit Court for the County of Wayne m an action of ejectment.

It appears from the record that Erastus H. Spaulding purchased the lands in controversy of the Hnited States, on the fifth day of May, 1835, and received the usual certificate of entry therefor. On the seventh day of the following July, Spaulding, it is claimed, made a formal assignment of this certificate to Shubael Conant, and the Hnited States, on April 1, 1837, issued to Conant, as assignee of Spaulding, the usual patent for the lands. The patent was put in evidence, and no formal objection arises upon it; but the assignment by Spaulding to Conant is only proved by an exemplified copy from the office of the Commissioner of the General Land Office at Washington, and this is objected to as insufficient.

The particular objections to this evidence are two :

1. That the assignment was not acknowleged, and therefore was not sufficient to constitute a conveyance of an interest in lands under the statute in force when it was made.

2. That it is not a paper required by any rule of law to be filed in the office of the Commissioner of the General Land Office, and consequently is not a paper which can be proved by his certificate.

The second objection we do not regard as tenable, whether there is or is not a statute of the United States which would require the filing. The propriety of the assignment remaining of record in the office of the Commissioner after the patent has been issued to the assignee is very obvious, and there can be no question, we should suppose, that his practice to retain and file a paper of this importance, which is to evidence the authority of the government to make a particular grant, constitutes it a part of the records of the office as much as if he were expressly required by law to make of it this disposition, and if it constitutes a part of the public records of the office, the Commissioner’s certificate was sufficient to make it evidence.—Lacy v. Davis, 4 Mich. 140; Gilman v. Riopelle, 18 Mich. 145.

The first objection appears to us equally untenable. Spaulding, by virtue of his entry, acquired an equitable right to the land, which he might assign ; but the legal title still remained in the Government. He has made such an assignment as the Government has recognized by making a conveyance to his assignee, and we doubt the right of any person not claiming through or under Spaulding, to attack collaterally this assignment. A sovereignty, in making title to its own lands, has a right to determine for itself upon the sufficiency of whatever goes to entitle the claimant to a conveyance; and when the conveyance has been issued, a third person, not in privity with the title, is not to be heard to allege that the conveyance has issued improvidently. The cases of Stringer v. Young, 3 Pet., 320; Boardman v. Reed, 6 Pet., 328; Bagnell v. Broderick, 13 Pet., 436, and Minter v. Crommelin, 18 How., 87, are all authorities to the point that when a patent has been issued by the Government, all the necessary prerequisites are presumed to exist. This presumption, we think, is as applicable to an assignment, where the patent issues to an assignee, as to anything else which was essential to designate the person entitled to the conveyance, or the land to be conveyed.

In saying this, however, we do not mean to be understood as expressing an opinion that there was ever a time in this State, or in Michigan Territory, when the terms of the statutes were such, that a deed would not be good as between the parties, because, though it had all other proper formalities, it was lacking in an acknowledgment. It does not become necessary to pass upon that question in this case, and we have not, therefore, given it special attention.

A further objection arises upon the conveyance made of the land by Conant. It appears that he conveyed to one Russell before he received a patent. The conveyance was by quit claim, and defendant claims that as Conant had no legal title at the time, his deed conveyed none, and the title he subsequently acquired by the patent, did not enure to the benefit of Russell, inasmuch as there were no covenants in his deed to transfer the title by way of estoppel.

The general principle unquestionably is, that a Government patent, when issued, relates back to the original entry, and perfects and makes valid any attempted transfer by the patentee intermediate the entry and the patent. This principle is not disputed, but it is denied that it can apply to a case where the patent issues not to the original purchaser, but to his assignee. The reasons which should preclude the application of the doctrine of relation to the case did not strike us with force on the argument, nor have we been able on reflection to satisfy ourselves that they rest on any substantial basis. We have never heard it suggested before that a sheriff’s deed, or any other conveyance made to complete a judicial sale, would not if made to an assignee, relate back to the time of the sale, so far as necessary to protect intervening rights and equities. The same reasons, for the applicability of the doctrine, exist in this case as in any other, and no reason, either substantial or technical, appears to us to preclude it.

Assuming that we are*correct in this, we understand by the record that Hall showed a complete chain of title from the Government to himself, and was prima facie entitled to recover unless the defendant established some affirmative defense. A tax deed was put in evidence in the case, but we have not been required to examine it, since it was conceeded not to be supportable, unless under section 164 of the tax law of 1869. The tax sale was made in 1859. The question was presented on the argument whether the section in question related back to, and made good, illegal sales previously made. It is sufficient for us to say on that point, that we do not discover in that section the least evidence that such was the intention of the Legislature. The tax law of 1869 was passed to regulate the assessment, collection and return of taxes for the future, and the title as well as the body of the act aptly indicates that purpose. The further questions presented in this connection on the argument will not, therefore, require attention in this case.

The only other question which the record presents, regards an alleged possession of the premises by one George Y. Clark who was not made a party defendant. The premises do not appear to have been occupied, unless by this George V. Clark, and James W. Clark was sued under the statute as claiming title only. The Statute provides, Comp. Laws § 4,557:

“ Sec. 4. If the premises for which the action is brought, are actually occupied by any person, such actual occupant shall be named a defendant in the declaration; if they are not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein at the commencement of the suit; and all persons claiming any title to the premises adverse to that claimed by the plaintiff, may in all cases be made defendants in such action.”

The defendant on the trial gave evidence tending to prove that George Y. Clark was in the actual occupation of a small part of the premises, enclosed by a brush fence, and cultivated the same as a garden at the time of the commencement of the suit, and that he claimed to be in possession of the whole thereof under a permission of the defendant that he might go on and work the same, and that he occasionally cut wood and trees on other portions of the premises, he at the same time residing on a farm adjoining.

Upon this evidence the Circuit Judge instructed the jury that if -they should find that any portion of the premises, which might be distinctly defined, was in the actual possession of any other person than the defendant at the time the suit was commenced, the plaintiff might neverthelessj recover all the premises except such portion. He further charged in the following language : “ I do charge you, gentlemen, that if you find in this case that some other party than the one made defendant was in possession of the garden spot, and that garden spot can be defined and described, as it has been described by witnesses in this case, and he was not in like possession of the other part, then you can find for the other part, and for the defendant as far as the garden spot is concerned; but if you shall find he was in possession of the whole, then of course they cannot recover in this suit, if you shall find that he actually occupied the whole.” This charge was objected to by defendant.

The defendant requested the Court to charge the jury that if the premises in question were actually occupied by George Y. Clark at the time the suit was brought, the plaintiff could not recover. This charge was given, with such modification only as the addition of the word “all” before “the premises” would make; and a further request to charge that if George Y. Clark was actually cultivating a portion of the premises, and claimed to be in possession of the whole, then there being no adverse or other possession, and he occasionally cutting wood thereon, that that was an occupation within the provisions of the statute— was refused; the Court telling the jury that the question was whether he was in actual possession and not whether he claimed to be.

The jury appear to have found that George Y. Clark was not, in fact,- in the actual possession of any portion of the premises.

The defendant (below) finds fault with the charge respecting possession, that it was calculated to mislead the jury, and to bring them to the conviction that to make the actual occupation required by our statute there must be an actual enclosure of the whole premises, or the cultivation thereof — -in other words, the like occupation which Clark claimed to have of the garden spot. We do not discover this tendency in the charge, and we think to draw any such inference from it requires a more narrow and critical construction than any jury were likely to give it.

Besides, there was no evidence in the case which, independent of the small spot said to be cultivated as a garden, and which was only a very small fraction of the whole, tended in the least to show an actual occupation of the premises by George Y. Clark. That person might perhaps have been made a party defendant under the liberal provisions of our statute; but the mere fact that he claimed to be in possession of the whole, and occasionally cut trees and wood thereon, while living upon other lands— which, except as to the garden spot was the whole extent of what he claimed, his evidence tended to show, — did not establish actual occupancy, or authorize the jury to find it. However significant those facts might have been in connection with an actual possession of a part of the land under a claim of title to the whole, if the jury had found such actual possession' to exist, they are, when standing alone, mere isolated acts of trespass, and nothing more. As the case is presented by this record, the charge of the Circuit Judge, even if not strictly accurate, could not possibly have prejudiced the defendant. But we are not by any means certain that he gave the jury a rule regarding actual occupancy which was any different from that which the statute warrants.

We think there is no error in the record, and the judgment should be affirmed.

The other Justices concurred.