Hedrick v. Atchison, Topeka & Santa Fe Railroad

120 Mo. 516 | Mo. | 1894

Sherwood, J.

There was ample evidence to support the decree obtained in the court below. Although the action as begun was ejectment, yet the answers setting up equitable defenses converted the whole proceeding into an equitable one; this, of course, does away with any necessity for examining the declarations of law asked.

As will have been perceived, the controversy hinges on the number of the range, whether 14 or 17. The first paper offered on behalf of defendants, was the following, to wit: a certificate of location and entry by Cavil M. Freeman.

“military bounty land act oe march 3,1855.

“Milan, Mo., Register’s Oeeioe, July 25, 1856.

“Military Land Warrant number 8470, in.the name of Thomas Huelkeld has this day been located by Cavil M. Freeman upon the west half of. the southeast quarter of section 28, in township 61, of range 14, subject to any pre-emption claim which may be filed for said land within forty days from this date.

‘‘Contents of tract located, eighty acres.

“J. Seaman, Register.”

They'next introduced the plat book from the office of the clerk of the county court of Adair county certified by the register of the land office, July 16, 1866, as follows:

. Section 28, township 61, range 14.

[Copied from the township plat-book.in the office of the county clerk, Adair county.]

Then follow mesne conveyances consisting of warranty deeds by which the land in question was conveyed to the defendant company and to its immediate grantors.

They also introduced in evidence exhibits “B,” “F” and “D,” as follows:

They also introduced in evidence, exhibit C. attached to McCracken’s deposition, as follows:

“Boonville, Mo., Dec. 26, 1890.

“I, Wm. McCracken, Register of the United States Land Office at Boonville, Missouri, do hereby certify that the diagram hereto attached is a true copy of section 28, township 61, range 14 west, as the same appears on the plat on file in this office, as near as I am able to trace the same,, and that there are some interlineations and figures in the west half of southeast quarter and the southwest quarter of northeast quarter of said section 28, which are unintelligible or illegible.

“Wm. McCracken,

“Register.”

Then they introduced in evidence, relating to the plat book of ■ 28-61-17,-and also the certificates of the register thereto, as follows;

“U. S. Land Office, Boonville, Mo., Dec. 26, 1890.

“I, Wm. McCracken, Register of the U. S. Land Office, Boonville, Missouri, ’do hereby certify that the above diagram is a true tracing and copy of section 28; township 61, range 17, as the same appears on the plat book, on file in this office.

“And I further certify that this office is not prQ’ yided with a seal, Vm. McCracken,

“Register,”

Next in evidence they introduced “Exhibit 31.” Mr. G-uthrie offers and reads in evidence the plat book of Adair county relating to section 28, township 61, range 17, in words and figures following, to wit:

exhibit 31.

Section 28, township 31, range 17.

[Copied from the township plat book in the office of the county clerk of Adair county.]

This plat was certified July 16, 1866, as was the one heretofore mentioned. The exhibit last copied, is that taken from defendant’s abstract, and it .conforms exactly, to the origlnal.bill of exceptions now before us. Plaintiff’s abstract has, and calls for, no such exhibit as 31, and on pages 51 and 52 of his abstract is this: “Mr. Guthrie offered and read in evidence the plat book of Adair county, relating to section 28, township 61, range 17, in words and figures following, to wit:”

Section 28, township 61, range 17.

[Copied from the township plat book in the office of the county clerk, Adair county. ]

A similar departure from the original bill of exceptions occurs in the alleged “transcript of the record,” which was filed in this court by plaintiff’s counsel after the term began, without any request on our part, and after the cause had already been brought up on a short transcript, as aforesaid. The alleged transcript indeed, in its index calls for exhibits ranging from 1 to 33, but number 31 is omitted as well in the index as in the body of the transcript, and in its place is substituted “exhibit 30,” which was the first paper offered by defendants as before stated, and had already been copied at page 18 of the alleged transcript, as “exhibit 30,” but was made to do duty again as “exhibit 30,” on page 88, of the same document, where range 14 was changed'to 17 and where instead of Pitt Cook’s name under date of May 21, 1857, covering the whole of the southeast quarter of section 28, is found that of Cavil M. Freeman, under date July 25, 1856, covering only the west half of the southeast quarter of section 28. With these slight discrepancies, however, plaintiff has made a very excellent copy of the original “exhibit 31” though he does not appear to be acquainted with it by that name. Other exhibits called for have not been copied in the original bill of exceptions, nor in plaintiff’s abstract.

Evidence was also adduced showing a thorough familiarity of plaintiff’s attorney, Widdicombe, for twenty-five years with business before the land office, in the disposal of the public lands, as well as a familiarity with the records of said office; this much he admits himself. Among other questions asked him was the following:

“Q. State if the following entry appeared on the record at the time you made the application for Mr. Hedrick: ‘West half of southeast quarter, section 28, township 61, range 14, eighty acres, Cavil M. Freeman, assignee of Thomas Huelkeld, 1856, July 25, military land warrant No. 8470, act third March, 1855.’ A. I have no doubt that it did, with the additional notation thereon ‘belongs to E. 17,’ which means range 17.”

In January, 1887, after the filing of the patent for record, by Widdicombe, defendants Wilson and Saunders sent their attorney, Mr. Joseph Park, to Boonville to investigate the matter. He examined the tract book in the land office and found this notation: “W. I, S. E. i of section 28, township 61, range 14, 80 acres, Cavil M. Freeman, assignee of Thos. Huelkeld, July 25, 1856, military land warrant, No. 8470, act March 3, 1855.” Now, that was the numbers of the record at that time without any erasure or any interlineations. The notation on the plat book on the west half of the southeast quarter of section 28, township 61, range 14, was “Cavil M. Freeman, July 25, 1856.”

Park is corroborated as to the condition of the notations on the books in the land office in January, 1887, by the letter from the Assistant Commissioner of the Greneral Land Office at Washington, of February 15, 1887, and addressed to the register and receiver, at Boonville: ‘ ‘G-entlemen: —I am in receipt of your letter of January 27, 1887, stating that your records show that the west half of the southeast quarter of section 28, township 61, range 14, was located by Cavil M. Freeman, July 25, 1856, per warrant number 8470, act 1855, and that you were ‘shown an abstract of title from the records of Adair county, Mo., a regular chain from the said Freeman to the present occupant of the land, Mr. James H. Saunders.’ ”

Three years later, December, 1890, Mr. Park returned 'to Boonville to take the depositions for use in this case. He found the entries relating to the tract in question as follows, on the tract book: “On December 26, 1890, there appeared on this line, this star in pencil and marked in red ink ‘Belongs to R. 17.’ And where the words ‘Cavil M. Freeman’ now appear is a plain erasure and mutilation, and then in darker and much later ink the name of Cavil M. Freeman, rewritten in the same place. And where the word ‘military’ is written is a plain erasure and a total destruction of whatever had been written there, and the word ‘military’ is written in black ink at a much later date, and from its appearance in a different handwriting from the name and the other writing that was not erased.”

The star on the Freeman entry, made in pencil, seemed to be referred to from the Hedrick entry, which had been posted a line or two above, and had a similar pencil star to it. The Freeman entry was also at that time marked by an index hand in pencil with the finger pointing to the Hedrick entry above. At the right hand end of the line on which the Freeman entry was noted, was added in red ink, “Belongs.to R. 17.” This red ink notation was in the handwriting of Gustave Reiche, whose whereabouts prior to and at the trial defendants were not able to ascertain.

It also appears that after the receipt of the letter of February 15, 1887, from the general land office, the then register, Mr. Wright, had written on the right hand end of the line of the tract book on which the Hedrick entry was posted, in red ink, the words: “Correct; see Com. letter, February 15, 1887;” and had inserted on the line on which the Freeman entry was noted, and just after “W. 2 S. E. 4” in red ink these words, figures and characters: “Error should be in R. 17; see Com. letter, February 15, 1887.”

As to the plat book, in December, 1890, Mr. Park found the following: “The witness’ attention was called to exhibit ‘C,’ attached to McCracken deposition, which he stated he compared with the original the best he could, andsawitmade — traced. The condition as shown, is correct so far as we could make the marks, but there was so many erasures and re-markings that nothing' but a glass could show it all. In January, 1887, the name of Cavil M. Freeman, July 25, 1857, appeared on the west half of the southeast quarter of section 28, township 61, range 14, on the plat book. On December 26, 1890, the west half of the southeast quarter of section 28, township 61, range 14, didn’t appear to have the name of Cavil M. Freeman so it could be read at all. There appeared to have been erasures and mutilations, so that this.plat is as correct a tracing as the register could make it, but it scarcely reads anything at the present time.”

The monthly abstract of location under military land warrants (exhibit D) was examined by Mr. Parkin December, 1890. Witness identified exhibit D, attached to McCracken’s deposition, and stated he had seen the book from which it was made. “I can not testify whether the figure 7 in 17 under the range column is as when copied but I can tell you what appeared there. Just as plain an erasure of the figure 4 where the figure 7 is written as anything can be.”

The records as to section 28, township 61, range 17, and the testimony in relation thereto are briefly as follows: “Exhibit E,” copied from the tract book, shows “W. iS. E. qr. Cavil M. Ereeman, Assignee, etc., July 25, 1856, Military Land Warrant, 8470, Act 1855.” Then follows in red ink: “SE -J- * * Pit Cooke Ass. James Long, 1857, May 21,” etc. The notation now has a line run through a portion of it with a pencil, and just at the left and running down under the “S. E. 2” there is penciled these words: “Cancelled. See letter, June 12, 1861.” Next below the Cooke entry came: “E. \ S. E. 2 * * * 80.00, 1.25, 100.00. Wm. M. Yancleve, Sept. 19, 1885,” etc.

Mr. Park does not remember positively the condition of the tract book in 1887, save that it showed that Cooke had entered the north half and the south half, and the notation was in pale red ink. “I examined the Vancleve entry in December last, and it compared in color, freshness, age and handwriting with the Freeman entry.” Hoge, the receiver of the Boonville land office, testifies that the Yancleve and Freeman entries are in the same handwriting, that is, as far as the entries go. “I think the entries immediately preceding and succeeding the entry of Yancleve and the entry of Cavil M. Ereeman are in the same handwriting and in pale red ink. The entries of Yancleve and Cavil M. Ereeman are in black ink.”

Evidence was also introduced on behalf of defendants showing actual possession of the premises by them or those under whom they claimed in 1875 and continuously maintained ever since; that taxes on said land have been paid ever since, and that Freeman had, up to the time he conveyed the land in 1860 by general warranty deed, claimed the land now in controversy.

As will have been noticed, this cause in all its essential features and predominant characteristics is the counterpart of Hedrick v. Beeler, 110 Mo. 91, 19 S. W. Rep. 492, heard before the same circuit judge as this cause, and with a like result as in the present instance. In Beeler’s case, there were alterations, mutilations, erasures, etc., of the record, and the name of A. C. Widdieombe appears as an assistant to the same plaintiff in procuring his title in that case; so, also, in this. We have had several cases in this court of contests over land, and in each of them, where that name appeared, there also invariably followed in its wake as coincidences, erasures, alterations and mutilations of the record. Hedrick v. Beeler, supra; Widdicombe v. Childers, 84 Mo. 382; s. c., 124 U. S. 400; Widdicombe v. Mercer, 72 Mo. 588; Hedrick v. Stohl, 105 Mo. 43.

That most outrageous changes in the case at bar have been made on the respective books in the land offices, is patent to even casual observation. Now these changes in the records were not accidental; pen and pencil without some hand to guide them do not, in the ordinary course of human events, make erasures or alterations on records, or deface the same. There was a motive then, at the back of these alterations and a hand to back that motive and effectuate it. Defendants Saunders and Wilson would be moved by every consideration of self-interest to maintain the record as it was, while only plaintiff or some one interested in his success, would be desirous of making any change.

If these alterations existed only to the extent already set forth as admitted Tby Widdicombe, then that was sufficient to put Widdicombe, the agent, or undisclosed principal, on inquiry, and this was sufficient as notice. If on the other hand, as Widdicombe says in another place, the records were in precisely the same condition as now, when he entered the land, then certainly, owing to the very looks of the records as shown by the exhibits C, Gr, and others, there could not be any quibble whatever over the question that thereby he was put on inquiry, and that is undoubtedly sufficient as evidence of notice; for a purchaser with notice and a purchaser in bad faith are correlative terms, and the holder of a legal title in bad faith must always yield to a superior equity. In such case, the holder of the legal title may be secure as against the United States, but not as against one who had acquired a prior right from the United States in force when his patent issued. Widdicombe v. Childers, 124 U. S. supra.

■ Again, Freeman complied with all the terms and conditions necessary to entitle him to a patent to the tract of land in controversy; having done so, he acquired a vested interest therein, and became the equitable owner thereof, and while his entry or location remains in full force, his rights in the premises can not be defeated by the issuance to another party of a patent to the same tract. The public faith has become pledged to the prior party, and any subsequent grant of the same tract to another party is void, unless the first location be vacated. Wirth v. Branson, 98 U. S. 118; Branson v. Wirth, 17 Wall. 32; Moore v. Robbins, 96 U. S. 530; Stark v. Starrs, 6 Wall. 402. And the fact that a patent was issued to Freeman for a different tract of land, can not affect or defeat his right to the premises in dispute. Wirth v. Branson, supra.

We have been cited to the case of Widdicombe v. Mercer, 72 Mo. 588, and Sensenderfer v. Neale, 66 Mo, 669, and especially the latter, as decisive of this case. Doubtless this is so; but, as shown by the former cases cited, we have long since ceased to follow those cases.

Holding these views, we affirm the decree of the circuit court.

All concur.