5 Mo. 346 | Mo. | 1838
delivered the opinion of the court. r
This was an action of ejectment, commenced by Morton against Blankenship & Rider, to recover the northwest quarter of'section eighteen, in township thirty-two north, range nine west, designated as lot numbered two, containing one hundred and fifty-six acres, and seventy-two hundredths of an acre, situate in the county of Pulaski. Blankenship & Rider pleaded not guilty, and Morton joined issue. Verdict and judgment were for defendants, and plaintiff moved for a new trial, which piotion the court overruled. The case is brought here by writ of error.
On the trial, the plaintiff gave in evidence a certificate of the receiver of the land office at Jackson, to Newel Haydon, dated 14th April, 1831, for the land described in the declaration, and a deed from Haydon to plaintiff and Joseph C. Laville, dated-30th May, 1831, and proved the defendants in possession of the land.
The defendants proved that on the 14th day of December, 1830, Barney Lowe entered in the land office at Jackson, as a pre-emption right, the east half of the southwest quarter of section seven, township thirty-two north, range nine west, containing eighty acres; that this entry was erroneously made; that his pre-emption right' was on the northwest quarter of section eighteen, township thirty-two, range nine, being the same tract described in plaintiff’s declaration and entered by Haydon. This error in Lowe’s entry was communicated to the commissioner of the general land office, who cancelled this erroneous entry, and authorized Lowe to enter section eighteen, township thirty-two, range nine, by paying the difference in value between that and his erroneous entry; and accordingly, on the 9th of October, 1831, upwards of nine months after his erroneous entry, Lowe entered lot number two, in section eighteen, township thirty-two, range nine, the same lot entered by Haydon, and on this entry a patent was issued to Lowe, dated the 6th day of March, 1835, which patent was given in evidence. Blankenship & Rider proved 'that they were in possession under Lowe. It is stated in the deposition of a witness, that the entry of Haydon appears to have been cancelled by order of the commissioner of the gen
1. That the certificate produced in evidence, marked E, “Receiver’s Office, Jackson, Mo. April 14, 1831, No. 992, received from Newel Haydon, the sum of $195 90, being in full for lot No. 2, N. W. qr. section No. 18, township No. 32 N., range No. 9 W., containing 156 acres and 72 hundredths, at the rate of $jl 25 per acre, $195 90. (Signed) John Hays, receiver,” is to be received in evidence, and is of equal validity with any patent.
2. That the decision oí the receiver and of the commissioner of the general land office, is not conclusive of the rights of the parties in this action, and that it has no binding force upon the rights of the parties.
3. That such decision is merely the opinion of persons conversant m matters of pre-emption, and as such is entitled to some weight, but in no case has the effect of a judicial decision.
4. That if the jury believe that the plaintiff, in this action, is an innocent purchaser, having bona fide, purchased the land for a valuable consideration, at a time when there was no adverse claim, they must find for the plaintiff.
5. That there is no legal evidence that the entry by Haydon has been vacated. These instructions the court refused, and the plaintiff excepted. The defendant then moved the following instructions, which were given by the court; to the giving of which the plaintiff excepted.
1 and 2. Both being in substance, that if the jury find from the evidence that the commissioner of the general land office has vacated the certificate issued to Newel Haydon for the land in suit, then they must find a ver-&Ct for the defendant.
In that mode of examining this case which seems the most convenient to me, the following questions will arise: Had the commissioner of the general land office, 1. The power to correct Lowe’s entry? 2. The power to transfer Lowe's entry to the land covered by Haydon’s en-try? 3. The power to vacate Haydon’s entry ? 4. Is a certificate ol entry with the register and receiver, which js anterior in date, evidence sufficient to support ejectagainst a patent for the same land, which is poste-l'ior in date?
]n the first place, it may be well to examine that part act ^’ongress of the 24th of May, 1824, which governs this case. The first section of this act provides
In Lowe’s case no attempt at a correction was made until after more than six months from the date of the entry had elapsed. The commissioner then had no power to make the correction in Lowe’s entry.
Had the commissioner power to transfer Lowe’s entry to the land covered by Haydon’s entry? Two objections existed to the exercise of this power. In the first place, the commissioner had no power to transfer Lowe’s entry to any other point until it could be raised from section seven, and this, after six months had elapsed, he had no power to do. But if he had had the power to raise Lowe’s entry from section seven, still he had no power to transfer it to section eighteen, because the act of Congress authorizes him “ to transfer the' payment from the tract erroneously entered to that intended to be entered,’’ only in case the tract intended to he entered remained unsold; but if the tract intended to he entered be sold, then the transfer must be to some other tract liable to entry. Here, the tract which Lowe says he intended to enter, had been sold to Haydon, being part of section eighteen. The commissioner then had no. power to transfer Lowe’s entry to this tract while Hay-don’s entry remained in the way, even ¡had it -been raised
Is a certificate of entry with the register and receiver, which is anterior in date, evidence sufficient to support ejectment against a patent for the same land, which is posterior in date? Under our act regulating the action of ejectment, “an entry with'the register and receiver of any land office of the United States” will maintain ejectment against any person not having a better title— sec. 2, R. C. 1835, p. 234. The patent can do nothing more. A certificate and.patent then, under our act regulating the action of ejectment, are equal in dignity, and. consequently that which is anterior in date, must prevail against that which is posterior. - In this case Hay-don’s certificate of entry was dated the 14th of April, 1831; the patent to Lowe, under which defendants claim, was dated 6th day of March, 1835; the certificate of entry with the register and receiver being anterior in dater was sufficient to maintain this action against the patent,, that being posterior in date.
The court erred in refusing the first four instructions,, as numbered in this opinion, asked by the plaintiff. The instructions asked by the defendants might have been.-properly enough given. They were.in substance; that if the jury found from the evidence that the commissioner of the general land office had' vacated the- certificate issued to Newel Haydon for the- land in suit, then they must find a verdict for the defendants. Lowe’s patent would certainly have been good in this action, against a vacated certificate.. But the eouit erred further in refusing the fifth instruction, as here numbered, asked by the plaintiff. This instruction was, that there was no legal evidence that the entry by Haydon had been vacated. The only evidence on this point was th® statement of a witness that Haydon’s entry appeared to have been cancelled by order of the commissioner- of the general land office. If the entry was cancelled', the can-celling must have- been made a matter of record, or must have existed in a public document; and parol evidence-will not be admitted to prove a matter of record or the existence of a public document. But it has been before shown that in this case the commissioner had no power to vacate Haydon’s certificate of entry. The judgment of the circuit court ought, therefore, to be reversed, and the other judges concurring, it is reversed and remanded-