11 Kan. 611 | Kan. | 1873
The opinion of the court was delivered by
This was an action for the recovery of certain real property. The property consists of two lots, situated in what was formerly the town of Palmetto, now Marysville, Marshall county. On the trial of the case in the court below, the plaintiff Sherry introduced in evidence a patent from the United States to Joseph E. Clardy, probate judge of Marshall county, for certain real estate, which includes the property in controversy. This patent shows that said real estate Avas patented to said “Joseph E. Clardy, probate judge of Marshall county, Kansas, in trust for the several use and benefit of the occupants of the toAvn of Palmetto, according to their respective interests.” The plaintiff then offered to introduce in evidence a certain deed for said real estate from said Joseph E. Clardy to certain persons named in said deed, “members of the Palmetto ToAvn Com
I. We do not understand that the defendant claims that said probate judge had no authority to enter said land. The plaintiff however seems to suppose that this is the only question in the case. The land was entered under the act of Congress of May 23, 1844, entitled “An act for the relief of citizens of towns upon the lands of the United States under certain circumstances.” (5 U. S. Stat. at Large, 657. See also Comp. Laws of 1862, p. 889.) Said act of Congress provides that “it shall be lawful for the judges of the county cow't for the county in' which such town may be situated to enter, at the proper land office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests,” etc. Under -this act the government of the United States has universally recognized the power of the probate judge to enter town sites, wherever the judge of a “county court” could so enter them. The “probate court” in one sense is a “ county court.” And it would seem from the action of the government that the words, “ county court,” as used in said act, were intended to mean any county court by whatever name such court might be known, and whether it was a county court for probate matters only, or whether it was a county court for general, common-law, chancery, or other jurisdiction. And now, after the government of the United States has recognized such power of the probate judge to exist, and after such power has been duly exercised in this particular case, we shall not declare in favor of a party who seems from the record to have no possible right, title, or. interest whatever in the property in controversy, that no such power does exist. The court will not allow such a person to raise the question of the want of power of the probate judge.
III. This deed from the probate judge was acknowledged before the clerk of the probate court, January 3d, 1859. This was sufficient. At that time the probate court had a clerk. (Laws of 1858, page 202, § 34.) The court was a court of record, and had a seal. (Laws of 1855, page 227, §6.) And a clerk of a court having a seal has always had the power in Kansas to take acknowledgments of deeds. (Laws 'of 1855, page 177, §17, and subsequent laws.) The probate judge does not execute or acknowledge this deed as a part of
IV. It is claimed by the defendant that said deed was acknowledged before it was executed. This is a mistake. The record shows that the deed was executed October 28th, 1858, and acknowledged January 3d, 1859.
We have now disposed of all the questions raised by the defendant, or suggested by the plaintiff, with regard to the introduction of said -deed in evidence. Others might be raised, but we have not chosen to raise them. There are none of the foregoing reasons sufficient to exclude said deed as evidence. The judgment of the court below must be reversed, and cause remanded for a new trial.