6 Mo. 106 | Mo. | 1839
Opinion of the court delivered by
Hunter brought an action of ejectment against Hemphill in the Circuit court of Pike county, to which defendant pleaded not guilty. In support of his title the plaintiff relied
Mr. Jordon testified that in 1818, in, company with others, he went to the land sales in St. Louis; that the claim of Dubruie] was not then laid down; that the lands in Range 2 were offered, for sale and many pre-emptions were offered wdthin the lines of Lubruiel’s claim as afterwards laid down; that-defendant had not been long enough on his land . to be entitled to a pre-emption; that in January or Februa-
.On tiie part of the plaintiff, it was proved by Henry, that; lie entered the land marked on the copy of the map at , Palmyra at the time recorded on it. Oh inspection of the
On this state of facts, as appears by the bill of exceptions, the defendant moved the court to instruct the jury;
1st. That if they shall believe from the evidence, that the entry of the defendant of the land in controversy, made in the absence of the register of the land office, by mistake of the person having charge of the register’s office, and that the said land had never, at the time of said entry, been offered for sale at public auction, then the said entry of said
2nd. That if they shall believe from the evidence that the land in controversy had not (at the time of the plaintiffs entry) been offered for sale at public auction, but had been reserved from sale by the register and receiver, that, in that case, the plaintiffs title under said entry is not sufficient to enable him to recover of the defendant in this action.
3rd. That if they shall believe from the evidence that the land in controversy had, up to the time of the plaintiffs entry, been re'erve.l from sale, on account of said land or a part thereof being supposed to bo within tho Spanish claim cf Antúi e Dubmiol, cf 10,000 arpents, then the said plaintiff is not entitled to recover of the defendant in this action. Which instruction-’, at prayed by defendant; were given, and thereupon the plaintiff moved the court to give tho following :
1st. That the two land receipts given in e vidcnce by the plaintiff, if the -ame be true and genuine, are sufficient evidence of title in the plaintiff, to the land therein mentioned to sustain this actio i o<- ejectment, unless the defendant, has' shown a better title in Imn-elf, or some other person.
2nd. That it is net legally incumbert on the plaintiff, in order to give v illicit/ to his entries which are given in evidence, to preve that the requirements of the laws of Congress, previous to the sale of the land by private entry, have been complied with.
3rd. The piaintiíl i-' net bound to prove, in order to enable him to recover in this action that the President of the United States had by proclamation appointed a time for the public sale of the lands in question, nor that the said land was ever in fact offered for sale at public auction.
4th. There is no legal evidence that the claim of Dubrufl was lawfully laid down upon the map of the register’s oilica, as testified by Mr. Wright and Mr. Jordan.
5th. If the jury believe from the evidence in the cause, that the plaintiff er fared with tho register and receiver of: the land office, at I idmyra the land in controversy and that
6th. That the defendant cannot maintain a naked posses* sion as against an entry with the register and receiver, by showing that the land had not previously been offered for public sale.
7th. That if the jury shall believe from the evidence in the cause that the plaintiff entered the land in controversy with the register and receiver, at the land office in Palmyra, they should find for the plaintiff unless the defendant shows by evidence a better title in himself, that is, not in another person.
The court gave, the 1st, 5th and 7th instructions asked by plaintiff, and refused" the 2nd, 3rd, 4th and 6th and gave all the instructions asked by defendant, and, by way of explanation, instructed 'the jury further that if the jury believe from the evidence that the supposed entiy was made, in the absence of' the register, with a person left by him in the charge of his office, and not with himself, they must find for the- defendant, because he could not delegate his authority. ■
After verdict for defendant, the plaintiff moved for a new trial, because of misdirection of the court and insufficiency of the testimony to justify the verdict; which was overruled. The errors assigned by the plaintiff in this court, ares.
1st. That the court erred in giving the instructions asked by defendant.
2nd. The court erred in refusing to give the 2nd, 3rd, 4th and 6th instructions asked by plaintiff.
3rd. The court erred in giving the explanatory instructions for defendant.
4th. It erred in over ruling the motion for a new trial.
Before proceeding to consider the various defences set up. in this case, a preliminary enquiry necessarily arises in relation to the proper construction of our statute regulating the action of ejectment. The act provides that an entry with the register and receiver of any land office in the Uni-
Believing then that this title is not of such a paramount character as to preclude the same defences, which are admissible in other actions of ejectment, I proceed to examine th® nature of the defence set up by Hemphill, and the sufficiency of the evidence to maintain that defence. It is admitted that the entry with the register and receiver is prima facie evidence of title and that it is not incumbent on the holder of such title to prove that various prerequisites of the law have been complied with. But it is insisted that the defendant may show that the entry was illegal and void, and that consequently 'no title passed from the United States, by such attempted sale. The Supreme Court of the United States, in the case of Wilcox vs. the lessee of McConnell, decided at the January term 1839, have declared that if the register and receiver undertake to grant pre-emptions in land, in which the law declares they shall mot be granted, then they are acting on a subject matter clearly not within their jurisdiction, as much so, as if a court, whose jurisdiction was declared not to extend beyond a given sum should attempt to take cognizance of a case beyond that sum. This we understand to be oneof the casesin which the entry with theregister and receiver would be absolutely void as against the United States, those officers having undertaken to exercise a power not given to them by law, but expressly withheld. This opinion is streng-thend by the official opinion of Mr. Wirt, given,to the-commissioner of the general land office, on the 22nd Oct;-1828', (see land laws &c. vol. 2, part 2, p. 39.) “On the case stated from the general land office, under date the 6th inst. it is my opinion that' no patent ought to issue for lands which have been inadvertently sold without
1st. That, in accordance with the provisions of the of 3rd March 1811, (land laws p. 591) the land in question was expressly reserved from sale in consequence of the claim ofDubrueil for 10,000 arpens. 1
2nd. That the latod never was actually offered at public •sale., and consequently was not subject to private entry.
3rd. That the register had no power to appoint a deputy, and there was therefore no sale in fact.
First; It does not appear that either the laws of Congress or the regulations of the commissioner of the general land «ffice have provided any specific mode for complying with
The third jrroan.l of defence assume l in the case was that the register hau l no right to depute his authority to another much less the receiver, and that therefore the entry was void. The instruction of the court on thl point wm very.broad. That instruction was, that if the jury believe from the evidence that the supposed entry was made in the aVence of the register,, with a person led by him in charge of his office, and not with him sel they must iin-1 for the de'onJant, because'he coulJ not delegate his authority. The court in tliis instruction place the validity of the entry entirely upon the question of the presence nr absence of the regi.-ter, and then proceed to deal ire the huv aiding upon a supposed state of facts, assuming that if the regiiter was absent, he necessarily acted by deputy. The court declare such -acts illegal and vci-l. Iam enable to perceive how the consequences result which the court assumed woul Ire suit and how it fellows that because the register was. not present when a certain act was dene he necessarily performed that act by deputy. Before that question coul l be determined, it wouii 1)3 nece^ary lo look Lito Ills nature of the act which was to be performs l, if a mere derical act, it .might have, been performed by denuty ; if a Judicial act, and register does, lor some-purposes, and m some matters, act as a judicial oílic-r (as in granting pra-eni} lions) the act could. not have been performed by deputy. The instruction sumed the broad position that no act of the register, ministerial, clerical or judicial, could be. performed except m proper person, an,l loít with (he jury mereh .to say whs-ther the act in question was so performed or not, The court erred in giving this instruction. ■
For the reasons above given, the judgment of the’circuit ’ court is reversed and'remanded.