Elting v. Gould
| Citation | 96 Mo. 535,9 S.W. 922 |
| Parties | ELTING v. GOULD. |
| Decision Date | 26 November 1888 |
| Court | United States State Supreme Court of Missouri |
James H. Harkless, for plaintiff in error. Buler & Timmonds, for defendant in error.
This is an action of ejectment for the N. E. ¼ of the S. E. ¼ of section 33, township 33, range 31, in Barton county. The documentary evidence is as follows: (1) A patent from the United States to William Gilfillan for the other three 40-acre tracts in said quarter section, dated in 1859. (2) A patent from the United States to R. O. Elting, dated in 1865, for the whole of said quarter section. (3) A deed of release from Richard O. Elting and wife to the United States for the whole of the same quarter section, dated in January, 1884, and recorded in Barton county in February of that year. (4) The record recites that plaintiff put in evidence a certificate of original entry by him at the United States land-office, dated April 26, 1884, for the 40 acres now in suit. (5) Defendant relies upon a sheriff's deed, dated in October, 1882. This deed is founded upon a judgment of the circuit court of Barton county, rendered April 29, 1882, in a suit brought in the name of the state to the use of the collector, against R. O. Elting, to enforce the state's lien for taxes due on the land for the years 1878 and 1879. This deed is in due form, and was recorded in October, 1882. The proceedings in this tax suit were put in evidence, and in respect of them it is agreed that the only service had on the defendant is an order of publication made by the court, in term-time, against R. O. Elting, a non-resident of the state; that the order of publication is founded on an allegation in the petition that defendant is a non-resident of the state of Missouri; that the petition was not verified; and that no affidavit of non-residence was filed in the cause. It is agreed that defendant was, in point of fact, a non-resident. There was a judgment in the circuit court for the defendant, to reverse which the plaintiff sued out this writ of error.
1. The first position of the plaintiff is that the deed of release from Richard O. Elting to the United States, and the subsequent entry of the 40 acres in suit by him, cut out and destroyed any title which the defendant acquired by the sheriff's deed; that plaintiff takes title as of the date of his entry, in 1884, because the patent issued in 1865 to him was void. It must be taken as established law that a patent for land previously granted, reserved from sale, or appropriated, is void, and this, too, in an action at law. Morton v. Nebraska, 21 Wall. 660. But the patent to R. O. Elting, issued in 1865, covered land not previously granted to Gilfillan; and as to this, the 40 acres now in suit, the patent was not void. It passed the title thereto to R. O. Elting. Doubtless the contract which culminated in the patent was founded in mistake. Had this mistake been discovered before the patent was issued, it is fair to presume that the officers of the government would not have issued it. As the patent was issued in mistake, it may be conceded that under sections 2369-2371, (U. S. Rev. St. 1878,) Elting had the right to surrender the patent, release as to the whole quarter section, and then re-enter the 40 acres to which he had acquired the title; but it was optional with him whether he would do this or not. So long as he failed to exercise the option, the title to the 40 acres was in him by force of the patent issued in 1865. Had he sold this 40 acres, either by warranty or quitclaim deed, his subsequent surrender of the patent could not have affected the rights of the purchaser. The land was subject to taxation for the years 1878 and 1879, — the years for which the taxes became delinquent, and to pay which...
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Woodside v.
...some act prior to the judgment; some act which occasioned the judgment being in the form in which it is found. The case of Elting v. Gould, 96 Mo. 535, 9 S. W. 922, illustrates my views of the kind of an act which will estop the party or his grantee from asserting the invalidity of the tax ......
- Gordon v. O'Neil
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Woodside v. Durham
...that he himself had adopted as to that land, by his act of receiving and placing of record that deed. But that is not the case at bar. In the Elting case, the act which constitutes the was an act prior to the judgment and an act which superinduced the judgment to be in that name and form. I......
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Burge v. Burge
...Owen Corrigan and Elisha Corrigan did not authorize a judgment against John Owen Corrigan and Elizabeth Alice Corrigan. In Elting v. Gould, 96 Mo. 535, 9 S.W. 922, the of publication was to R. O. Elting, and it was held not notice to Richard O. Elting; but it was further held that inasmuch ......