110 Mo. 91 | Mo. | 1892
Action of ejectment in usual form commenced April 13, 1887, to recover possession of northeast quarter, southwest quarter, section’ 36, township 66, range 16, in Schuyler county. The trial was upon an answer setting up an equitable defense, ■and asking affirmative relief, alleging, in substance, that on July 30, 1856, one Robert Mercer “intended to enter, applied for, and, in fact, did enter,” at the land-office at Milan, Missouri, the lands sued for, with land warrant number 35,772, act of March 3, 1855; that, by mistake of the register of the land-office at Milan, said entry was posted on the tract book of said register’s office erroneously describing the land as being in range 19, instead of range 16, as it was, in fact, and should have been posted, and that plaintiff, with knowledge •of'these facts, entered said land and obtained a patent ■therefor.
Upon the trial plaintiff introduced in evidence a patent from the United States granting to himself the .north one-half, southwest quarter, of section 36, town
Upon the equitable defense and in rebuttal thereof the following facts were shown: Leland Wright, register of the land-office at Boonville, testified, in substance that he had in his custody the plat books and tract books of what was once the Milan district land-office. The plat book shows the name “Mercer” written across the face of the north half of the southwest' quarter, section 36, township 66, range 16, and just •over the word Mercer, on the same tract, there appears a dim mark which looks as though it might be intended for the word canceled.
A The tract book shows the north one-half, southwest quarter, section 36, township 66, range 16, entered by Robert Mercer, assignee of Harriet Smith, July 30, 1856, by military land warrant number 35,772; there is, at an irregular place marked on the page of this entry, the words, “canceled May 4,1861,” also, in redink, the words, “erroneously posted, see range 19.” The tract book also shows that the north one-half of southwest ■quarter of section 36, township 66, range 19, was entered by Robert Mercer, July 30, 1856, by same-land warrant number 35,772. This entry is also marked as canceled May 4, 1861, “warrant returned to' general land-office July 8, 1885.” The tract book also shows that the northwest quarter of the southwest quarter of section 36, township 66, range 19, was entered by Michael H. Herbert, by military lanl warrant, and the name Herbert is written across this tract on the plat book. The custom of the offices at the time these entries were made was, in case of warrant entries, to put the name of the purchaser across the tract entered on the plat book, and to post in the tract book from this memorandum. At that time, when applications were made for vacant land, the register would go to
Robert Mercer testified that he came from Indiana to Missouri in 1856, and entered at the land-office at Milan the north one-half, southwest quarter, section 36, township 66, range 16; entered the land in person with land warrant, and never had notice that the entry had been changed or canceled. The warrant had never been returned to him.
Mercer sold, and by deed of general warranty conveyed, the land to G-eorge Poster April 16, 1863, and under mesne conveyances from him, defendant claims. The defendant had been in the actual possession of the land since 1879, and was never advised of an adverse claim until about the time this- suit was commenced. Some official correspondence with the land department at Washington City was had in evidence. Prom this correspondence the following additional facts were developed. Mercer’s land warrant 35,772 was returned to the register and receiver at Boonville by letter of commissioner of general land-office dated May 4, 1861, .with directions to notify Mercer that his entry in section 36, township 66, range 19, had been canceled, and that warrant would be returned on surrender of certificate of location. A written application was made by Mercer July 30, 1856, to locate said warrant number 35,772 on north one-half, southwest quarter of section 36, township 66, range 19, instead of 16. Nothing in the office at Washington showed the location to have been in range 16.
It was shown that Mr. A. C. Widdicombe had resided at Boonville for about twenty-five years, and was a sharp, shrewd land lawyer, was perfectly familiar with the land-office records, and was an expert in the business of the office; and had had a great deal to do in contested land cases growing out of conflicting entries in that and other land-offices.
The case was tried in the court without a jury, and the finding and judgment were for defendant and plaintiff appealed.
I. The equitable principles which govern eases of this character are well settled and need only be abstractly stated. One who attempts to enter a particular tract of land, then vacant, and subject to entry, and, with the intention or doing so, pays his money, or delivers a warrant to the proper government officer, acquires an equity in the land, though the written application required to be made, by a mistake and error in writing it, should misdescribe the land, and wholly omit the tract intended; and this equity may be enforced against one who afterwards, with knowledge of the facts which establish the equity,. obtains the legal title from the United States to the same land. As was said by Chief Justice Waite in Widdicombe v. Childers, 124 U. S. 404: “Under such circumstances, a court of cháncery can charge him as trustee and compel a conveyance which shall convert the superior equity into a paramount legal title. The cases to this effect are many and uniform. The holder of a legal title in bad faith must always yield to a superior equity.
“When the legal title has passed from the United States to one party, and it ought to go to another, it is competent for the courts to declare the holder of such legal title a trustee, and to compel a conveyance to the party who has the paramount equity.” Sensenderfer v. Kemp, 83 Mo. 587; Widdicombe v. Childers, 84 Mo. 384.
That Mercer intended to locate his land warrant upon the land in dispute and attempted to do so, and that the register of the land-office at Milan received his warrant knowing his intention, is so well established by the evidence that consideration of the question or comment upon the evidence is unnecessary. The indorsement made by the register across this tract on the plat book, and the entry made at the time on the tract book are conclusive of the intention without resort to the positive testimony of Mercer himself to that effect.
II. The only remaining question is whether plaintiff had actual notice of defendant’s equities when he purchased the same land and obtained a patent from the United States. If he had such notice, then the judgment of the circuit court is without error. “Notice is actual when the purchaser either knows of the existence of the adverse claim of title, or is conscious of having the means of knowledge although he may not use them.” Speck v. Riggin, 40 Mo. 405; Sensenderfer v. Kemp, 83 Mo. 588; Eck v. Hatcher, 58 Mo. 235; Leavitt v. La Force, 71 Mo. loc. cit. 356.
In an issue involving matters of equity, full disclosures ought reasonably to be expected of all facts within the knowledge of the parties. The fact that neither plaintiff nor his agent Widdicombe testified on the trial as to the notice they may have had of the entry of Mercer is a circumstance having almost the significance and force of an admission of such knowledge. It can hardly be conceived that they would have remained silent as to a matter necessarily within their own knowledge, unless conscious that to speak the truth would defeat their case. Henderson v. Henderson, 55 Mo. loc. cit. 559; Cass Co. v. Green, 66 Mo. 498; Baldwin v. Whitcomb, 71 Mo. loc. cit. 658.
We think the conclusion of the circuit court fully justified by the evidence, and consequently affirm the judgment.