Thomas v. Wyatt

• Decision Date: 31 October 1860
• Citation: 31 Mo. 188
• Parties: THOMAS, Respondent, v. WYATT, Appellant.
• Court: Missouri Supreme Court

31 Mo. 188

THOMAS, Respondent,

v.WYATT, Appellant.

Supreme Court of Missouri.

October Term, 1860.

1. Although a patent issued to a person not in existence is a nullity, yet a patent to a person under an assumed name is not void; if such person should, under such assumed name, transfer the land to a purchaser, the title would enure to the latter.

Appeal from St. Louis Land Court.

The facts sufficiently appear in the opinion of the court.

Beirne, Morehead, and Buckner, for appellant.

I. A patent to a fictitious person is void. (25 Mo. 24.) The court should have given the instructions asked by defendant. The instruction given makes the case turn on an issue wholly irrelevant. The junior patent was to a person capable of taking. The land was subject to sale and the patent issued by legal authority.

Coalter, for respondent.

I. The case as it now stands presents questions entirely different from those involved in the cause when on error before. (25 Mo. 24.) The court committed no error in giving or refusing instructions. The defendant claiming under Samuel Johnson, is estopped to deny his existence.

SCOTT, Judge, delivered the opinion of the court.

This was an action of ejectment. The plaintiff's title was as follows: From the office of the register in the St. Louis land district on the 19th of August, 1829, there was issued a certificate of entry, numbered 1786, stating that Samuel Johnson, of Kentucky, had entered lot number one, of township forty-five north, in range number five east, containing eighty acres. On this certificate there was an assignment, bearing even date therewith, made in the name of Samuel Johnson to the plaintiff Jas. S. Thomas, which was attested by James Coleman. On this certificate a patent was issued by the United States to Samuel Johnson, dated on the 5th day of January, 1843, and delivered to the said Thomas, who afterwards brought a suit in equity against Samuel Johnson, in which there was a decree vesting Johnson's legal title in him. The only service of process in this suit was by order of publication.

The defendant's title was a patent to Samuel M. Coleman, assignee of Samuel Johnson, dated the 14th of March, 1845, for the tract of land above described, in which it was recited that Samuel Johnson had deposited in the General Land Office a certificate of the register of the land office at St. Louis, whereby it appeared that full payment had been made for the said tract of land by Samuel Johnson. Samuel M. Coleman, the patentee, who was a son of James Coleman, conveyed one-half of the tract patented to him to Isaac Wyatt, the husband of the defendant. The half of the tract is the land in controversy.

James Coleman, who, it has been seen, attested the assignment of the certificate made by Samuel Johnson to the plaintiff, was a clerk in the register's office. There was evidence that he was a man of bad character, and on that account was discharged from his employment. A number of applications for entries, signed by Samuel Johnson and James Coleman, for the register, were produced, and evidence was given tending to show that they, signatures and all, were in the handwriting of James Coleman. Among these was the application for the entry, numbered 1786, above mentioned. There was some other evidence in the cause assailing the conduct of Coleman in the register's office. Such a man as Samuel Johnson had never been heard of.

The case was tried by a jury, and the court, rejecting all the instructions asked by each party, gave the following: “If the jury believe from the evidence that the patent, purporting to be issued to Samuel Johnson, given in evidence by the plaintiff, dated January 5, 1843, is genuine, and that it was issued upon the certificate of entry under date of August 19, 1829, numbered 1876, also introduced in evidence by the plaintiff; and if the jury shall further find that the patent purporting to be issued to Samuel M. Coleman, as assignee of Samuel Johnson, dated the fourteenth of March, 1845, and which was given in evidence by the defendant, is genuine, and that it was issued upon the same certificate of entry numbered 1876, that the said patent to Samuel Johnson was issued upon, and that each of the said patents covers the same land, then the patent, given in evidence by the plaintiff and the decree of this court also read in evidence, makes a title in the plaintiff superior to the title in the defendant under said...