66 Mo. 80 | Mo. | 1877
Lead Opinion
— This is a suit in ejectment by plaintiff, to recover the nw qr. of the se qr. of Sec. No. 35, in township 48 and range 24 in Johnson county.
The defendants make an equitable defense, stating in
The main questions to be considered are:
2d. If he did, had plaintiff notice of that fact, or of such facts, as in equity are equivalent to notice of that principal fact?
The evidence relied upon by defendants to establish the entry of the land by Dunkley in 1854, is oral, and must be of sufficient weight to overcome the record evidence to the contrary, furnished by the plat-book of the land office at Warsaw, the record of the land department at Washington and the patent of the United States issued to plaintiff’, before a court of equity would be warranted in holding plaintiff’ as a trustee for Dunkley or his grantees. It appears, from the evidence, that the office was taken from Clinton to Warsaw, where the records of the land office for that district were consumed by fire, but when the office was afterwards moved to Boonville, these records were supplied from the general land office at Washingtons which showed the land in question to be vacant.
The records of entries of land in the several land districts are made at the general land office, from monthly and quarterly reports of the registers and receivers, and •from duplicate receipts for land entered, forwarded by the land district officers to the general land office. The register and receiver of the land office at Clinton certified to the general land office the entries made in July, 1854, and the tract in question was not embraced in that monthly report, or in any monthly or quarterly report made from July, 1854, to September, 1871, when the patent for the land was issued to plaintiff'. We have said that the records of the land office at Clinton furnished evidence that the land in question had not. been entered. It is true, that Faulk, a witness for* defendants, testifies that he saw the register at the land office, when he entered the land for Dunkley, write the name of B. F. Dunkley on the plat-book, on the space which indicated the tract in question, and that Keen, another witness for defendants states, that
On that plat, the ne qr. of the se qr., of section 35, was marked as entered by Dunkley. In November, 1854, a patent was issued to Dunkley for the ne qr. of the se qr. Dunkley testified that he never entered that forty. The plat-book at Boonville also showed that forty entered by Dunkley. If he did not enter that, instead of the nw qr.' of the se qr., and it be true, as Keen and Faulk stated, that the plat-book showed the latter as entered by Dunkley, how did it happen that both the ne qr. and the nw qr. were marked on the plat-book as entered by Dunkley? And how did the alteration on the plat-book afterwards occur, showing the nw qr. of the ne qr. vacant? No conceivable motive for making such an alteration can be ascribed to the officers of the land office, for neither of them, nor any one connected with them, profited by the alteration, and the land for years after, appeared vacant on the plat-book. These witnesses are testifying from memory, to facts contradictory of record evidence, and their ’testimony to overcome it, should be of the most unquestionable and conclusive character. Mr. Keen says that he knew that Dunkley desired to enter this tract of land. He knew that his brother-in-law, Faulk, went to Clinton to enter it for Dunkley. He knew that Faulk was very familiar with the land in that section, and the boundaries and corners of its subdivisions, and that when Faulk returned, Faulk showed him the duplicate receipt, which he read and remembers, that it showed the entry of this identical forty. He says it also showed that it had been entered for Dr. Dunkley by Faulk.
The duplicate receipt for the purchase money for the ne qr. of the ne qr. forwarded to the General Land Office from the Clinton office, read in evidence by plaintiff, does not show that Faulk had any connection whatever with
The clerk of the county court of Johnson county testifies that the land in question was assessed to Dr. Dunkley from 1867 to 1874, inclusive, and never before 1867, and that the ne qr. of the nw qr. was assessed to him from 1856, two years after his entry, to 1874, a period of eighteen years, and that he paid the taxes thereon for 1878 and ’74. It does not appear whether he had paid taxes before 1873. How did it occur that the ne qr. of the nw qr. was assessed to Dunkley as early as 1856, and down to 1874 ? Either Dunkley gave it in to the assessor as his land, or the assessor ascertained from the records in Johnson county, that Dunkley owned it. In 1866 a certificate was procured from the land office at Boonville, and kept afterward in the recorder’s office of Johnson county, showing that Dunkley entered the nw qr. of the se qr. July 19th, 1854,
To sustain tbe issue for defendants, on this branch of tbe case, we are.to find that at least three mistakes and one crime were committed by tbe register or receiver of tbe land office at Clinton and Warsaw.
1st. A mistake in tbe duplicate retained at tbe office, of tbe receipt given to Uunkley for the land be entered, in tbe description' of tbe land sold to Uunkley.
2d. That mistake having been carried to the plat-book, was afterward corrected by marking as entered, tbe tract in question, and tbe register, by mistake, failed to erase tbe remark “ entered ” on tbe ne qr. of tbe sw qr., and permitted it to remain marked as “ entered.”
3d. In reporting the lands entered in July, 1854, to tbe general land office, a mistake was again made as to tbe tract entered by Unnkley, and tbe ne qr. of tbe sw qr. reported as entered by him; and tbe crime committed was •in subsequently allowing the plat-book to make it show tbe nw qr. of tbe sw qr. vacant.
On tbe other band, that Faulk made a mistake and applied to, and did enter tbe.ne qr. instead of tbe nw qr. of section 35, solves the whole difficulty, and is established, we think, by a preponderance of evidence. From tbe facts thus stated, what is the conclusion ? Clearly, that while
But suppose it be true that Faulk, for Dunkley, did enter this very tract, and the officers and agents of the government gave him a receipt for the purchase money for the identical tract, but made a mistake in the duplicate retained by them, and .described another tract, and carried that mistake into the plat-book, is there sufficient evidence in this record to charge plaintiff with notice of these facts ?
It is alleged in the answer of defendant that Dunkley, immediately after his entry of this land in 1854, took possession of it. The evidence shows conclusively that he did not take actual possession until 1871. He testifies that it was-not inclosed until 1871; that the first crop raised upon it was in 1873. He had no actual possession until 1871, and no constructive possession prior to 1871, for the title remained in the government of the United States. If he had been in actual possession, claiming title, a very different question would have been presented on this branch of the case from that we have to deal with. Plaintiff might then have been put upon his inquiry, and affected with notice of Dunkley’s equity against the government. But what are the facts relied upon as constituting notice to plaintiff? That he knew that Dunkley claimed the land, and that in a conversation with Faulk, after plaintiff had received his patent for the land from the government, he remarked to Faulk, who was proceeding to give him an account of the entry made by him for Dunkley in 1854, that he knew that Dunkley intended to enter this tract, but made a mistake and entered the other forty. Now, what knowledge did that remark imply ? That Dunkley had entered the nw qr. of the se qr.? and that is the knowl
It is evident - that if Dunkley intended to enter, and Eaulk for him did enter the nw qr. of the se qr., and by mistake it was not so entered upon the plat-book, or reported to the general land office, yet the ne qr. of the nw qr. was certainly with his knowledge, assessed to him from 1856 to 1874, and for seventeen years he must have been apprised of the fact: that this mistake had been made, and not until plaintiff had entered the land tlid he make complaint, or take any steps to have it corrected. His own testimony shows that he knew that he had not purchased the ne qr., but had purchased the nw qr. The ne qr. was assessed to him for thirteen years, and for no year in that period had the nw qr. been assessed to him. Is he not to
Reversed.
Dissenting Opinion
Dissenting. — This was an action of ejectment for the nw qr. of the se qr., of Sec. 35, T. 48, R. 24. The suit was brought in the circuit court of,Johnson county in 1873 — it was tried in 1875. The plaintiff's title was a patent for the land issued on the 15th of September, 1871. The defense ivas, that one Dunkley, the father of Mrs. Smith, &c., the nominal defendants, bought of the United States, at the Clinton land office, this same piece, on July 19th, 1854. The' defendants, therefore, asked the court that the legal title acquired by the plaintiff in 1871 be divested out of him and vested in the defendants.
After hearing all the testimony in the case, the circuit court made a decree in conformity to the prayer of the defendants, and from this decree the plaintiff appeals to this court. The testimony in this case is voluminous and presents a state of facts not easily accounted for, and has, therefore, from the importance of the principle involved, and the unusual and sigular discrepancies occurring in the records of the United State Land Offices at Clinton, and Warsaw and Boonville, and of the general land office at Washington, been examined with care, although the result reached is not one in which all the court is agreed.
It is hardly necessary for me to repeat the testimony offered by the defendant to establish the fact that, on the 19th of July, 1854, he entered at the land office at Clinton the nw qr. of the se qr., S. 35, T. 48., R. 24, and received a certificate from the United States officers to that effect. If
The question, however, upon which I have had doubts is, whether the plaintiff, who obtained a patent for the land in 1871, was so far affected with notice, or so far put on inquiry, as to authorize the court to hold him responsible for mistakes made by the United States officers. He admits in the conversation reported by Eaulk, to whom he applied after his purchase to act as agent for him, that “ Dunkley intended to enter it, but made a mistake and entered the 40 east of it.” The plaintiff proceeded to give Eaulk a history of the way he had become acquainted with the vacancy, that he had been for two years a clerk in the land office at Boonville, and in that way became acquainted with the error, or the fact that Dunkley had not entered it. He then stated that he prosecuted the examination to Washington, and spoke of an assistant he had there, and became satisfied that the land was vacant. In other words» his examination of the records at Boonville and Washington satisfied him that Dunkley was mistaken in supposing he had entered the sw qr. of the se qr., of Sec. 35, that the officers in the land office were not mistaken, but that Dunkley was, and that he had really entered the ne qr. of the sw qr., of Sec. 35. He therefore concluded to follow the decisions of the government officials at Washington,
The plaintiff purchased with a full knowledge of Dunkley’s claim but relying on the records at Washington that such claim would not be available. And if the records at Washington are conclusive and cannot be contradicted by parol evidence, however satisfactory, the plaintiff was not mistaken. It is the necessary result of the conclusion that I have reached, that Dunkley did enter the nw qr. of the se qr., of See. 35, in July, 1854, that the officers at Clinton must have erroneously reported to Washington, that Dunkley entered the ne qr. of the se qr. of Sec. 35. In other words, the duplicate sent to Washington was erroneously reported as an entry of the ne qr. of the se qr., and therefore a patent was issued Dunkley in the fall of 1854 for the ne qr. of the se qr., of Sec. 35. But in September, 1854, the records at Clinton showed that the nw qr. of the se qr., of See. 35, was entered, and that the ne qr. of the se qr. was vacant, and therefore Mr. Keen was allowed to enter and did enter the ne qr of the se qr., of Sec 35. The plats at Washington showed that the ne qr. of the se qr., of Sec. 35, was entered by Dunkley in July and by Keen in September; that there was a mistake in these plats was obvious. The officers of the government, however, concluded to issue a patent to Dunkley, whose entry was prior in date to Keen’s so far as these records showed.
They knew that the United States could not sell the same piece of land twice, and that there was a mistake in the record of the first or second entry. Their conclusion, however material, that the first buyer was entitled to a patent, ’ depended upon a question of fact which they had no authority to determine. As it appears now from evidence entirely satisfactory to me, Dunkley had not enterered in July the ne qr. of se qr. of 35, but had entered the nw qr. The plaintiff bought on the assumption that the
It appears that the land office at Clinton was removed to Warsaw, and that after its removal the office and all its records were destroyed by fire in 1861. This fact would not be material if the officers at Clinton correctly reported, as by law they were required to do monthly, the entries at Clinton. But the testimony shows beyond all doubt tbat on July 19th, 1854, Dunkley entered the nw qr. of the se qr. of sec. 35, and of course, that the duplicate sent to Washington that he had entered the ne qr. of the se qr., of See. 35, was a mistake. The plaintiff, when he purchased in 1871, was apprised that the vacancy in the nw qr. of the se qr. of sec. 35, as it appeared on the books, was a matter in dispute, as the two entries of the ne qr. in July and September clearly indicated. ' He thought proper to rely on tbe duplicates sent to Washington. It turns out upon investigation that they must have been false.
My opinion is, therefore, that the judgment of the circuit court was right,