Fenwick v. Gill, 38 Mo. 510

Fenwick v. Gill

38 Mo. 510 | Mo. | 1866

Holmes, Judge,

delivered the opinion of the court.

This was an action of ejectment upon a petition in the-usual form. The answer admitted possession by the defendant of a portion of the premises sued for, and disclaimed possession of the rest. It contained also a bill in equity, stating a case of equitable jurisdiction, in due form, on the ground of fraud on the part of Martin Fenwick, under whom the plaintiff claimed title, in procuring a reservation of the land in question to be made by order of the Commissioner of the General Land Office, and noted upon the books of the Register and Receiver of the Land Office at Jackson, Missouri, and in procuring an act of Congress to be passed confirming the land to him, and authorizing patents to be issued to him for the lands granted, whereby the defendant had been *525prevented from presenting bis pre-emption claim and making an entry of the' same lands. It stated also that the defendant had had possession of the premises for several years, and liad made valuable improvements thereon; and prayed that the plaintiff might be decreed to hold the land in trust for Ms use, and to convey the same to him on being paid one dollar and a quarter per acre for tile land; or if the plaintiff should be allowed to recover, that he should be enjoined from taking possession of the premises until he should pay the amount to be allowed for compensation for his improvements. The court gave the plaintiff judgment for the possession of the premises of which the defendant admitted he was in possession, and (sitting as a jury) assessed the damages and the monthly value thereof. In making this assessment, the court estimated the value of the rents and profits and the value of the improvements, and, deducting the one from the other, found abalance due the plaintiff of one hundred and fgp dollars, for which he had judgment. Both parties complain of this judgment: the plaintiff, that the value of the improvements was deducted from his damages ; and the defendant, that the plaintiff was allowed to recover at all.

The defendant excepted to the admission of one of the patents in evidence, for the reason that the record showed that the petition had been filed before the date of the patent. There was evidently a clerical mistake of one year in the date of filing the petition, but it sufficiently appears otherwise by the record that the suit was actually commenced in 1858 and after the date of the patent. •> The summons was served on the defendant on the 31st day of October, 1858. Strictly speaking, this was the commencement of the suit. There is nothing in this point.

It was further objected that one of the patents did not cover any part of the lands in controversy. There was evidently a mistake in the description of the township as 35, when it should have been 34; but this call may be rejected for re-pugnancy, and description enough will |till remain to ascer*526tain and describe the land with certainty. The description is not only by townships and sections of the public surveys, but also calls expressly for the U. S. survey No. 1244 of Geo. A. Hamilton as the southern boundary of the land granted. By this means the true location could be identified and rendered certain—2 Greenl. Crui. Dig. 307, n. 1. There was no error in admitting the patent.

It is still further objected that one portion of the lands sued for, and included in the judgment, was not covered by the description of either patent; and this appears to be, so far, strictly true. But this portion was embraced within the description contained in the first section of the act of Congress which was in evidence. This section of the act amounted to a legislative grant of the lands therein described. The granting words are “ that Martin Fenwick be and is hereby confirmed in his claim of five hundred arpents -of land”— going on to describe the several parcels by the sectional subdivisions of the public surveys of lands subject to sale ac Jackson, Missouri. The identity of the lands sued for with those granted was amply proved by the evidence. These granting words are the same as those contained in the act of Congress of June 13,1812, and the case comes clearly within the principle applied to that act, “ that a grant may be made by a law as well as by a patent pursuant to law,” and “ that a confirmation by law is as fully, to all intents and purposes, a grant as if it contained in terms a grant de novo”—Strother v. Lucas, 12 Pet. 454 ; Chouteau v. Eckhart, 2 How. (U. S.) 372. The act also authorizes the Commissioner to issue patents; but, however convenient a patent might be in such case, it cannot be considered as absolutely necessary for the purpose of showing a grant of title. This objection cannot be sustained.

Upon a careful examination of the evidence in reference to the matter of fraud, we have found no sufficient reason for interfering with the judgment of the court below on this part of the case; It is altogether probable that the action of Congress, in making this grant, was based mainly upon the *527consideration of the ancient possession of this identical land, which had continued in the family of Joseph Fenwick for several generations, wholly independent of the fact that the old Spanish concession, calling for another river, had been fraudulently altered to make it call for this land on the river Brazeau. Whether or not there was a mistake of the name of the river in the original concession, the fact was that Joseph Fenwick had taken actual possession of this land. The claim had been rejected by the several Boards of Commissioners, but the members of the family still retained possession. Martin Fenwick was one of the heirs. The possession of the administrator of the widow Fenwick, his mother, may properly 'be considered as the possession of the heirs.

The evidence shows that the defendant intruded upon this prior possession, and, as it would seem, for the very purpose of setting up a pre-emption right to the property, against the more just claims of the heirs of Fenwick, and that he obtained full possession only by buying off a tenant of the Fen-wicks. We do not see that there was any fraud in Martin Fenwick procuring a reservation of this land from sale until the action of Congress could be had upon his claim. Nor is there any satisfactory evidence that any fraud at all was practised upon Congress to induce them to pass this act. The fraud suggested seems to consist merely in this altered concession; but there is no reason to believe that this fact, even if unknown, had the least influence with Congress. Nor can this court undertake to inquire into the reasons and motives of Congress in passing this act for his relief—Fletcher v. Peck, 6 Cranch, 87.

There are many .cases in which the action of the Registers and Receivers of the land offices, in the matter of pre-emp-tions and entries, have been examined by the courts, where the claims of different persons came in conflict before them; and there are some cases in which the grantee of land under a patent has been declared in equity to be a trustee for the use of another, having the better right; but this is not one of those cases. In all those cases, it was shown that the *528party complaining had acquired some actual and definite legal right. Here no step had been actually taken at the Land Office towards acquiring a right of pre-emption. No notice had been filed within the time limited by law ; no affidavit had been made, no proofs offered, and no money paid or ten-dex-ed. Nothing had been accomplished towards making an entry by right of pre-emption. Inquiry had been made at the Land Office, and the party had been informed that the lands were reserved and were not then subject to pre-emption, and an attorney had been employed to watch the office and ascertain when the l’eservation should be removed. If not satisfied with the action of the Commissioner in ordering the land to be reserved, he might have appealed to the Secretary, or to the President. Even if reserved without authority of law, the grievance of this party would rather be an injury sounding in damages, than an infringement of any definite and positive legal'right acquired in'this land. Nor is there any proof of any actual fraud practised upon the Commissioner. The Register and Receiver merely obeyed instructions. The defendant shows no such right, title, or interest, in this property, as can give him any standing in a court of equity. The land had certainly not been sold before the passage of the act of Congress, nor had any other person than the grantee acquired any actual l-ight or title in these lands. The plaintiff stands here upon the grant and his patents, and must be held entitled to recover.

The plaintiff insists that there was error in deducting the value of the'improvements from the amount of the rents and profits, and in giving judgment only for the balance as damages. The statute contemplates that the party dispossessed may recover compensation for. all improvements made by him in good faith on the lands prior to his having notice of the adverse title—R. C. 1855, p. 694, § 20.

The court below seems to have been so far satisfied of the good faith of the. defendant as to allow his claim for compensation. We are not prepared to say it was wholly destitute of merit, nor that it was founded in bad faith rather than in *529honestly mistaken views of his legal rights. Under all the circumstances, we are inclined to think the conclusion arrived at by the court below was not far from the real justice of the case. For these reasons the judgment will be affirmed.

The other judges concur.