Lessee of William Brown and Wife, Plaintiff In Error v. Joseph Clements and Jonathan Hunt, Defendants In Error

• Citation: 44 U.S. 650,11 L.Ed. 767,3 How. 650
• Parties: LESSEE OF WILLIAM L. BROWN AND WIFE, PLAINTIFF IN ERROR, v. JOSEPH CLEMENTS AND JONATHAN HUNT, DEFENDANTS IN ERROR
• Decision Date: 01 January 1845
• Court: United States Supreme Court

44 U.S. 650

3 How. 650

11 L.Ed. 767

LESSEE OF WILLIAM L. BROWN AND WIFE, PLAINTIFF IN ERROR, v. JOSEPH CLEMENTS AND JONATHAN HUNT, DEFENDANTS IN ERROR.

January Term, 1845

THIS case was brought up, by writ of error, under the twenty-fifth section of the Judiciary Act, from the Supreme Court of the state of Alabama.

It was an ejectment, brought by the plaintiffs in error to recover 2 40/100 acres of land, in the possession of Clements as the tenant of Hunt. The plaintiff claimed title through a patent to James Etheridge, and the defendants through a patent to W. D. Stone. Both Etheridge and Stone claimed as pre-emptioners under the act of Congress, passed on the 29th of May, 1830.

The question depended upon the manner in which the fractional section twenty-two, in township four south, of range one west, in the district of lands subject to sale at St. Stephens, Alabama, should be laid out.

A reference to the annexed diagrams will make it more intelligible.

Nos. 1, 2, 3, 4 represent the whole section; but in consequence of prior claims or grants, only that part of it included within 1, 5, 6, 7, 8, 9, 10, was subject to entry, containing the entire south-west quarter-section, and some additional land upon the east and north. The surveyor divided the whole of this into two parts by a line running from 11 to 12, one of which parts (marked A) contained 92.67 acres, and the other (marked B) contained 110.50. The

plaintiff claimed to extend the part A over the whole square which constituted the quarter-section, as represented by dotted lines.

On the 28th of January, 1831, Etheridge presented the following application and affidavit:

'To the Register and Receiver of the Land-office at St. Stephens:

'You will please to take notice that I, James Etheridge, of Mobile county, Alabama, claim the right of pre-emption, under the act of Congress of the 29th May, 1830, to the southwest quarter-section 22, t. 4, r. 1 west.'

Affidavit.—'James Etheridge, being sworn, maketh oath that the above described tract of land was planted and cultivated by him in the year 1829, and remained in his possession from the year 1829 until after the 29th May, 1830. That the said land was occupied and cultivated by him in his own right, and not as the tenant of any other person. That the said land was enclosed with his own fence, and that there was no person concerned with him in the occupation and cultivation of the said land; and that the present claim does not interfere with the right of any other person, and that he believes he is entitled to the same under the act of Congress of the 29th May, 1830, and that the said tract is within the corporate limits of the city of Mobile.

J. ETHERIDGE.'

The affidavit was sustained by the oaths of Daniel Robertson and John Carr.

On the 25th of March, 1831, Stone presented the following application and affidavit:

'To the Register and Receiver of the Land-office at St. Stephens, Alabama:

'You will please to take notice that I, William D. Stone, of Mobile county, Alabama, claim the right of pre-emption, under the act of Congress of the 29th of May, 1830, to the fraction situated in the west part of the south-east quarter of section 22, in township 4, range 1, west of 13.

WILLIAM D. STONE.'

Affidavit.—'William D. Stone, being sworn, maketh oath that the above described tract of land was planted and cultivated by him in the year 1829, and remained in his possession from the year 1829 until the 29th May, 1830, and that the said land was occupied and cultivated by him in his own right, and not as the tenant of any other person. That the said tract of land was enclosed with his own fence, and that there was no person concerned or connected with him in the cultivation of the said land, and that this present claim does not interfere with the rights of any other person; and further, that the tract described is within the present corporate limits of the city of Mobile.

WILLIAM D. STONE.'

The affidavit was supported by the oaths of Samuel H. Garrow and James Dowell.

On the 20th of June, 1831, the register and receiver issued the following certificate:

E.—Extract from abstract of claims to pre-emption, under the act of 29th May, 1830.

'Land-office, St. Stephens, Alabama.

Abstract of claims to pre-emptions to lands that are reported to have been surveyed, but the township plats not furnished to this office.

Tract. Quantity. Rate. Amount.

No. By whom claimed. Residence.

Sec. T. R. D. C. D. C. D.

C.

2 Jas. Etheridge Mobile S.W. qr. - 22 4 1 W.

15 Wm. D. Stone Do. Fraction 22 and 27 4 1 W.

All lying south of 31x except claim No. 40

'Land-office, St. Stephens, Ala., June 20, 1831.

'It is the opinion of the undersigned, that the foregoing claimants are each entitled to the right of pre-emption, under the act of Congress of the 29th May, 1830, to the tract or tracts by them claimed, and annexed to their names respectively, in the foregoing abstract.

JOHN B. HAZARD, Register.

J. H. OWEN, Receiver.'

The account of sales was entered in the book at some period which the record does not show, and was as follows:

Extract from account of land sold by register and receiver.

'Account of lands sold, and moneys entered in payment therefor, in April, 1832.

By whom purchased. Tract.

When No. of

sold. Purchaser. Residence. receipt. Section. T. R. Acres. Price. Amount.

1832.

April 30 James Etheridge Mobile 4,539 S.W. qr. 22 4 So. 1 W. 9,267 1 25 115 83 Pre-emption

" Wm. D. Stone Do 4,547 S.E. subdiv. 4 So. 1 W. 11,050 1 25 t.

qr. sec. 22

On the 30th of April, 1832, the register gave to Etheridge the 31s following certificate:

G.—Certificate.

'Pre-emption No. 4,539, act 29th May, 1830.

'Land-office, St. Stephens, Ala., April 30, 1832.

'It is hereby certified, that, in pursuance of law, James Etheridge, of Mobile county, Alabama, on this day purchased of the register of this office, the lot or south-west quarter of section number twenty-two, of township No. 4 south, in range number one west, containing ninety-two 67/100 acres, at the rate of one dollar and twenty-five cents per acre, amounting to one hundred and fifteen 83/100 dollars,

for which the said James Etheridge has made payment in full, as required by law.

'Now, therefore, be it known, that on presentation of this certificate to the commissioner of the General Land-office, the said James Etheridge shall be entitled to receive a patent for the lot above described.

JOHN B. HAZARD, Register.'

On the same day a certificate was issued to Stone, as appears from the following extract from the record of certificates issued for lands sold.

Tract. Quantity Price. Amount.

Date of No. of Name. Residence.

cer- cer-

tificate tificate Sec. or part of Sec. T. R. Acres. Hdth. D. C. D. C.

1832.

April 30 4,539 James Etheridge Mobile co. Southwest 22 22 4 1 W. 92 67 1 25 115 83

" 4,547 Wm D. Stone Do. S.E. sub. frac. 22 4 1 W. 110 50 1 25 138 13

On the 17th of December, 1832, a patent was issued to Stone. It granted the land described in the following preamble:

'Pre-emption certificate, No. 4,549.—The United States of America, to all to whom these present shall come, greeting:

'Whereas William D. Stone, of Mobile, has deposited in the General Land-office of the United States a certificate of the register of the Land-office at St. Stephens, whereby it appears that full payment has been made by the said William D. Stone, according to the act of Congress of the 24th of April, 1820, entitled 'An act making further provision for the sale of the public lands,' for the south-east subdivision of fractional section twenty-two, in township four, south of range one west, in the district of lands subject to sale at St. Stephens, Alabama, containing one hundred and ten acres and fifty one-hundredths of an acre, according to the official plat of the survey of said land returned to the General Land-office by the surveyor-general, which said tract has been purchased by the said William D. Stone.

'Now know ye,' &c., &c.

On the 30th of May, 1833, a patent was issued to Etheridge for the land described in the preamble.

'Pre-emption certificate, number 4,539.

'The United States of America, to all to whom these presents shall come, greeting:

'Whereas, James Etheridge, of Mobile county, Alabama, has deposited in the General Land-office of the United States a certificate of the register of the Land-office at St. Stephens, whereby it appears that payment has been made by the said James Etheridge according to the provisions of the act of Congress of the 24th April, 1820, entitled 'An act making further provisions for the sale of the public lands,' for the south-west quarter of section twenty-two, in township four, south of range one west, in the district of lands subject to sale at St. Stephens, Alabama, containing ninety-two acres and sixty-seven hundreths of an acre, according to the official plat of the survey of the said lands returned to the General Land-office by the surveyor-general, which said tract has been purchased by the said James Etheridge.

'Now know ye,' &c., &c.

In April, 1838, Brown and wife, claiming under the title of Etheridge, brought an ejectment against Clements for the east half of the south-west quarter of fractional section twenty-two. The case came on for trial at the April term, 1841, in the Circuit Court of the state of Alabama, for the county of Mobile, in the course of which the following bill of exceptions and agreement were filed.

Bill of Exceptions.

'Be it remembered, that upon the trial of this cause, the plaintiffs gave in evidence the paper hereto annexed, marked A, being a duly certified copy of a patent from the United States government to James Etheridge; and thereupon, it was admitted by the defendants, that the plaintiffs had, at the date of the demise, and time of trial, all the rights of said patentee Etheridge in the land described in the declaration. Plaintiffs also gave in...