105 Mo. 43 | Mo. | 1891
This is an action of ejectment for the east half of northeast quarter of section 36, township 52, range 27, in Ray county. Plaintiff Hedrick entered the land through his agent, Mr. Wid dicombe, at the local land-office at Boonville on the twenty‘third of January, 1885, and a patent was issued to him therefor, dated the thirteenth of October, 1886.
The defendant claims title under a cash entry made by Jeremiah McDonald at the local land-office at Lexington on the twenty-second of November, 1830; a deed from McDonald to one Phillips, made six years after the date of that entry; and a regular chain of title deeds from Phillips to her husband, now deceased. The defendant and her husband had been in actual possession of the land for sixteen or seventeen years before the commencement of this suit, and had made permanent improvements thereon. The defendant, in addition to a general denial, set up the foregoing facts as a defense, with the further allegation that plaintiff made his entry with full knowledge of the fact, that the United States had before sold the land to McDonald.
The plaintiff does not controvert the fact that McDonald purchased and paid for the land at the local land-office on the twenty-second of November, 1830, but his claim is that McDonald applied for and was granted leave to and did withdraw his entry, and that the register’s certificate was duly canceled.
It is deemed unnecessary to speak in detail of the instructions given and refused; for the only claim made by the plaintiff in this court is, that the trial court should, on the evidence produced, have declared as a
The Lexington office and several other local offices were consolidated in the Boonville office subsequent to date of this entry by McDonald, and prior to the date of the entry made by the plaintiff. The deposition of Mr. Wright, taken by the defendant, shows that he was appointed register after plaintiff made his entry ; that there are two books in the office, one called the plat book and the other the tract book, that cash number 42,580 is noted on the plat book on the space representing the land in suit; that this is the number of the receiver’s receipt and register’s certificate, and refers to the tract book, which shows the entry of the land by the plaintiff Hedrick on the twenty-third of January, 1885. He says this number on the plat book plainly appears to have been written over an erasure.
On cross-examination the witness stated that there was no evidence whatever of an erasure on that part of the tract book containing the entries relating to section 36, township 52, range -27, being the section in which the land in dispute is located, and that there was no evidence on the tract book to show that the land in dispute had been entered prior to the entry by Hedrick.
The defendant also read in evidence an exemplified copy from the general land-office at Washington of a certificate issued by the register of the local office at Lexington, showing that McDonald purchased and paid for the land in question on the twenty-second of November, 1830, and was entitled to a patent on presentation of the certificate to the commissioner of the general land-office. The word "canceled” appears on the lower margin of the certified copy.
The plaintiff in rebuttal put in evidence copies of the following documents found at the general land-office: First. An application of McDonald sworn to before the register and receiver of the Lexington office,
1. We shall first notice a matter urged in defendant’ s brief. The claim is that a patent was issued to McDonald on the first of June, 1831, which was a year and over before the secretary of the treasury gave McDonald permission to withdraw his entry, and that, the legal title having been vested in McDonald, it could not be divested by any act of the land-office officials.
The doctrine was declared in United States v. Schurz, 102 U. S. 379, and followed by this court in Hammond v. Johnson, 93 Mo. 220, that a United States patent passes the title by matter of record, and when signed by the president, sealed with the seal of the general land-office, countersigned and recorded in the books kept for that purpose, it needs no further authentication and p asses the title without delivery. Indeed, the act of congress of May 24, 1828 (1 Public Land Laws, 466), relating to the correction of errors in entries where a patent has been issued, requires a surrender of the patent and a relinquishment of title by the patentee as a condition precedent to the correction of the erroneous entry. If, therefore, a patent was issued to McDonald, there is nothing to show that he relinquished the title thus acquired. But neither party put in evidence any patent to McDonald. The only evidence having any tendency to show that a patent was issued is the copy of the tract book at the general land-office. That book is made up from the reports of the register of the local office, so far as it shows who entered the particular tract, the date of the entry, and the number of the certificate of purchase. This copy does state that a patent was issued to Jeremiah McDonald on June 1, 1831, but it does not
2. That McDonald purchased and paid for the land in suit at the Lexington office on the twenty-second of November, 1880, and that the register issued and forwarded to the general land-office a certificate of purchase, are facts about which there can be no dispute. The question then is, did McDonald change or withdraw that entry? More exactly stated, should the court have declared, as a matter of law, that he did change or withdraw the entry ?
From the evidence before recited it will be seen he made application to correct the entry on the twenty-sixth of May, 1831, by applying the money to the purchase of other lands. The secretary of the treasury granted him the liberty to change the entry on the first of March, 1832, the change to be made under the act of March 3, 1819 ; and pursuant to that decision the commissioner directed the register and receiver, on the seventh of April, 1832, to “permit Mr. McDonald to withdraw said entry, and to apply the money paid thereon, as the law directs.” The act of March 3, 1819, after specifying the errors which may be corrected and requiring the register and receiver to take the evidence and report the same to the secretary of the treasury provides, “who shall have power to direct, if in his opinion it shall be proper, that the purchaser shall be at liberty to withdraw the entry so erroneously made, and that the moneys which had been paid shall be applied in the purchase of other lands in the same district or credited in payment of other lands purchased at the same office.”
Now the evidence claimed by the plaintiff to show conclusively that McDonald did withdraw his entry is the word “canceled,” found written upon the margin of the certificate of purchase, and the memoranda to the same effect, referring to the commissioner’s letter of date April 7, 1832, found upon the tract book at the general land-office, and upon the register’s monthly report. Those memoranda were doubtless made at or after the date of that letter; but to be of any force or effect it must appear that they were made in conformity to an actual withdrawal ox the entry by McDonald after the date of that letter. Without such proof they amount to nothing; for, as before said, the granting of the prayer of the petition to withdraw the entry did not operate as a withdrawal, nor did it alone authorize any officer to cancel the certificate.
We then come to the question whether McDonald applied the money paid in the purchase of the land in question to the purchase of other property. It cannot be said he applied it in payment of the tract which
The book found in the recorder’s office of Ray county made out and certified at the Boonville land-office, and professing-to show all entries made prior to the second of August, 1867, would seem to furnish some evidence that this land had not been entered at that date; but this evidence is weakened by the other evidence to the effect that the Lexington office tract book, transferred to the Boonville office, never did show this entry made by McDonald. McDonald purchased and paid for the land, and received the proper evidence of that purchase, and did all that he was required to do in preserving the evidence thereof, so that he and his grantees have the prior right until it is made to appear that he in fact withdrew his entry.
As the case now stands there is no evidence from which the trial court could, as a matter of law, declare that McDonald withdrew or changed his entry of the land in question. The judgment is, therefore, affirmed.