Cramer v. Keller, 98 Mo. 279

Cramer v. Keller

98 Mo. 279 | Mo. | 1889

Black, J.

— This is an action of ejectment for a parcel of land in Adair county.

Plaintiffs derive title to the land from Nancy Brandon, who entered it at the local United States land *281office on the twelfth of Jnne, 1835. Pursuant to that entry a patent was issued to her, dated the twenty-fourth of December, 1874. The land was patented to the state, under the act of congress of September 28, 1850, donating swamp and overflowed lands to the different states where located, on the thirtieth of July, If 58, and by the state to Adair county in 1869. The defendants derive title from the county. On this state of facts, the circuit court gave judgment for the plaintiffs, to reverse which the defendants sued out this writ of error.

Whilst the first section of the act of congress of September 28, 1850, donating swamp and overflowed lands to the states, uses words of present grant, the second section makes it the duty of the secretary of the interior to make out a list of the swamp lands and transmit the same to the governor, and it is on this list patents are issued to the state at the request of the governor. The land being identified and a patent issued to the state, the title relates back to the date of the act. Martin v. Marks, 97 U. S. 345. The secretary of the interior, however, and he alone, had the power to approve and give validity to selections made under the act. Prior v. Lambeth, 78 Mo. 538. It seems that in many instances he did not perform this personal duty devolved upon him. In view of this congress passed the confirmatory act of March 3, 1857. (II U. S. Stat. 251.) By this act, selections of swamp lands theretofore made, and reported to the commissioner of the general land office, are confirmed to the states ; so that this act makes valid such selections, though they did not have the personal approval of the secretary of the interior. This confirmatory act applied only to lands that were vacant and not appropriated, and lands which had been sold by the United States or entered with land warrants, before patents, issued to the state, are exempt from its operation.

*282The argument of the plaintiffs below, defendants in error here, is that the secretary of the interior did not approve selections of this land as swamp land, so that the state must rely upon the confirmatory act of 1857; and, since Nancy Brandon purchased and paid for it by entry at a local land office in 1855, and before a patent was issued to the state, her purchase is protected and the land exempted from the operation of the confirmatory act, and hence she had the better title. The difficulty with this argument is this, there is no evidence as to how or by whom this land was selected as swamp land. There is not a word of evidence on this subject, save the patent itself. The two patents are in evidence, nothing more. The patent to the state purports to be made under and pursuant to the act of September 28, 1850. It was held as far back as Polk v. Wendal, 9 Cranch, 87, that when a patent is issued, the necessary steps to issuing the same will be presumed to have been performed. The patent is prima-facie evidence that all the incipient steps have been regularly taken. Mintor v. Crommelin, 18 How. 87. If, therefore, the plaintiffs seek to avoid the patent to the state on the ground that the secretary of the interior did not approve the selection of the land in question, they must make proof of that fact. The presumption to begin with is against them. Because this fact has been made to appear in other cases, it seems to be supposed we can incorporate the facts of those cases into this one. This we cannot do. This case must be determined from the facts in the present record.

Until the facts of this case are developed we do not feel justified in giving it any further consideration. The judgment is reversed and the cause remanded.

All concur.