Ledbetter v. Borland

128 Ala. 418 | Ala. | 1900

SHARPE, J.

Prima facie the Land Office Receiver’s receipt introduced in evidence by (the plaintiff showed in him the right to possession of the lands in suit and to their recovery in this action. — 1 Brick. Dig. 636, § 26. This is not controverted on the part of the defendants whose counsel concede in their briefs (that the decision of the cause depends upon the effect of the patent to Wilkinson which is older than the plaintiff’s homestead entry, and which purports to cover the entire fractional section in which these lands are situated.

The patent bears date of August 15th, 1860. We quote from it as follows: “Whereas, in pursuance of the act of Congress approved March 3d, 1855, entitled an act in addition to certain acts granting bounty land to certain officers and soldiers who have been engaged in the military service of the United States, there has been deposited in the 'General Land Office warrant No. 77787 for 160 acres, in favor of Mary E. Smith, widow of John Smith, private, 'Captain. Varner’s Company, Georgia Militia, War 1812, with evidence that the same has been duly located upon fractional section fourteen in township seven of range 12 in the district of lands subject to sale at Elba, Alabama, containing one hundred and fifty-four acres and seventy-five hundredths of an acre according to the official plat of the surveys of the said land returned to the General Land Office by the Surveyor General, the said warrant having been assigned by the said Mary E. Smith to William W. Wilkinson in whose favor the said tract has been located. Now know ye, that there is, therefore, granted by the United States unto the said William W. Wilkinson, as assignee as aforesaid, and to his heirs, the tract of land above described; to have and to hold the said tract of land, with the appurtenances thereof, unto the said William W. Wilkinson, as assignee as aforesaid and to his heirs and assigns forever.”

The recitals of a patent are evidence indisputable of the consideration upon which and the authority under Avhich the patent is issued. The Acts of Congress referred to in the foregoing recitals provided for the issuance of a land Avarrant to each of a class of persons Avho had been in military service for 160 acres. By statute it Avas made the duty of the Commissioner of the Land Office, and further it aauis made the duty of the Secretary of the Interior to cause a patent for the land to be issued to such holder. These proAUS'ions are embodied substantially in U. S. Rev. Stat., §§ 2425, 2437.

Courts will take judicial notice of the situation of lands according to the government survey. — Knabe v. Burden, 88 Ala. 436. We know judicially as well as from transcripts in evidence certified from the United States Land Office, that fractional section 14, of township 7, range 12 of the district of lands which were subject to sale at Elba contained approximately 473.75 acres; that it was according to the government survey decided in lots numbered respectively 1, 2, 3, 4, 5 and 6. The transcript from Tract Book 1 in the Land Office shpAVS that the identical Avarrant under which the patent purports to have been issued to Wilkinson, was on September 29th, 1858, located on’ said lots 1 and 2 together containing 154.75, which location corresponds with recitals of the patent as (to the. quantity of land appropriated under the warrant. It is thus affirmatively shown that the Avarrant’s location did not cover lots 3 and 4 which together contained 159.50 acres and which were subsequently entered by the plaintiff.

The general rule which in courts of law accords the presumption of validity to all proceedings necessary to uphold a patent does not prevent such courts from treating as void a patent which appears on its face to have been issued without authority. — Masters v. Eastis, 3 Port. 358; Cromelin v. Minter, 9 Ala. 504; Stoddard v. Chambers, 42 U. S. 317; Steel v. Smelting Co., 106 U. S. 447; Morris v. U. S., 174 U. S. 195. And proof extrinsic, of the instrument itself may be looked to to ascertain whether it was issued without authority. — Morris v. U. S., supra; Doolan v. Carr, 125 U.S. 618.

Officers of the government in issuing patents act ministerially and can rightfully act only in pursuance of some express provision of law. No law authorized the issuance of a patent to Wilkinson for a greater quantity of land than his. warrant called for or on land other than on which, that warrant was located.

In view of the record evidence showing that the location was on land other than and exclusive of lots 3 and 4 no presumption can be indulged that the patent is as to those lots issued pursuant to any right acquired by the patentee in those lots.

We hold that the patent so far as it purports to donvey the lands in controversy was issued without authority and is, therefore, void; and that the lands belonged to the United States at the time of .the plaintiff’s entry. No title by adverse possession can be acquired as against the government. The register’s deed to the defendant Borland having no other relevancy than to show adverse possession was not 'admissible in evidence. The general affirmative charge requested by the plaintiff should have been given and that requested by the defendants should have been refused.

Reversed and remanded.