44 U.S. 650 (1845), Brown's Lessee v. Clements

Citation:44 U.S. 650, 11 L.Ed. 767
Party Name:LESSEE OF WILLIAM L. BROWN AND WIFE, PLAINTIFF IN ERROR, v. JOSEPH CLEMENTS AND JONATHAN HUNT, DEFENDANTS IN ERROR.
Case Date:January 21, 1845
Court:United States Supreme Court
 
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Page 650

44 U.S. 650 (1845)

11 L.Ed. 767

LESSEE OF WILLIAM L. BROWN AND WIFE, PLAINTIFF IN ERROR,

v.

JOSEPH CLEMENTS AND JONATHAN HUNT, DEFENDANTS IN ERROR.  

United States Supreme Court.

January 21, 1845

        OPINION

        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.

        TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

        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

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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.

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         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.

[Note: The following TABLE/FORM is too wide to be displayed on one screen. You must print it for a meaningful review of its contents. The table has been divided into multiple pieces with each piece containing information to help you assemble a printout of the table. The information for each piece includes: (1) a three line message preceding the tabular data showing by line # and character # the position of the upper left-hand corner of the piece and the position of the piece within the entire table; and (2) a numeric scale following the tabular data displaying the character positions.] ******** This is piece 1. -- It begins at character 1 of table line 1. ******** -------------------------------------------------------------------- Tract. No. By whom claimed. Residence. --------------------------------- Sec. T. R. -------------------------------------------------------------------- 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 31 -------------------------------------------------------------------- 1...k...10....k...20....k...30....k...40....k...50....k...60....k... ******* This is piece 2. -- It begins at character 69 of table line 1. ******** ------------------------------- Quantity. Rate. Amount. ------------------------------- D. C. D. C. D. C. ------------------------------- except claim No. 40 ------------------------------- 69....k...80....k...90....k....

        '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.

[Note: The following TABLE/FORM is too wide to be displayed on one screen. You must print it for a meaningful review of its contents. The table has been divided into multiple pieces with each piece containing information to help you assemble a printout of the table. The information for each piece includes: (1) a three line message preceding the tabular data showing by line # and character # the position of the upper left-hand corner of the piece and the position of the piece within the entire table; and (2) a numeric scale following the tabular data displaying the character positions.] ******** This is piece 1. -- It begins at character 1 of table line 1. ******** --------------------------------------------------------------------------- By whom purchased. Tract. When --------------------------- No. of ------------------------- sold. Purchaser. Residence. receipt. Section. --------------------------------------------------------------------------- 1832. April 30 James Etheridge Mobile 4,539 S.W. qr. 22 " Wm. D. Stone Do 4,547 S.E. subdiv. qr. sec. 22 --------------------------------------------------------------------------- 1...k...10....k...20....k...30....k...40....k...50....k...60....k...70....k ******* This is piece 2. -- It begins at character 76 of table line 1. ******** ---------------------------------------------------- T. R. Acres. Price. Amount. ---------------------------------------------------- 4 So. 1 W. 9,267 1 25 115 83 Pre-emption 4 So. 1 W. 11,050 1 25 138 13 So. 31st. ---------------------------------------------------- 76.......k...90....k....0....k...10....k...20....k..

        On the 30th of April, 1832, the register gave to Etheridge the 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,

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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.

        'Record of certificates issued for lands sold, &c.

[Note: The following TABLE/FORM is too wide to be displayed...

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