Allison v. Hunter

• Decision Date: 31 January 1846
• Citation: 9 Mo. 749
• Parties: ALLISON v. HUNTER.
• Court: Missouri Supreme Court

9 Mo. 749

ALLISON

v.HUNTER.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO PIKE CIRCUIT COURT.

CARTY WELLS, for Plaintiff. The plaintiff in error relies on the following points: 1st. The evidence offered was legal, and relevant, and ought to have been given to the jury. Whether sufficient to prove the facts relied on, was for the jury, and not the court. 2nd. The facts sought to be proved, were sufficient to defeat plaintiff's entry. See the late case of Groom v. Hill. If the entry was fraudulent, it was void; if the land was not subject to entry, it was void; if it was reserved from sale, the entry was void; if it was subject to entry, it was also subject to Watson's pre-emption, which would prevail over the entry.

W. M. CAMPBELL, on same side. Allison has given evidence conducing to show that he has a good claim under the pre-emption law, and was in a situation to assail the title of Hunter for fraud. The receiver's receipt of Hunter, is only prima facie evidence of title, and may be avoided by proving that it was obtained by fraud, or was issued in violation of law. The evidence conduces to prove that Hunter was guilty of fraud, and suppression of the truth, when he took advantage of the absence of Wm. Wright, deceived Willis Green, and obtained the certificate of entry, knowing it to be reserved from sale. The entry is void, because it never did receive the assent of the register, express or implied; but on the contrary, the pretended sale by Green was disapproved of, and repudiated by Wright, so soon as it was known to him, and was also disapproved by the commissioner of the land office so soon as he was informed of the facts of the case. No valid sale was made to Hunter, for the want of assent on the part of the proper officer.

The sale was illegal, and improper, because the land had long been withheld from sale, and could not be properly entered at private sale, until it had been again offered at public sale. The commissioner of the general land office possesses authority to make rules, and to prescribe the manner in which entries should be made; also to decide when sales shall be suspended, in order to prevent improvident entries, and conflict of titles. It is the duty of the commissioner of land titles to suspend, and withhold patents, and cancel entries when satisfied that they have been obtained by fraud, or unlawfully issued. The decision of the officers of the general land office, should not be disregarded by the courts of justice, without strong reasons therefor, because it is much easier for the courts to conform their decisions to the established usages, and regular and settled practice of the land office, than for the land office department to conform its actions to the variant and conflicting decisions of all the courts of the United States, and of the courts of fifteen or sixteen States and territories, that contain public land. The concurrent opinions of Messrs. Wirt, Butler, Berrien, Taney, Crawford and Whitcomb, in relation to fraudulent and unlawful entries, and the powers and duties of the land officers in relation thereto, are entitled to high respect, not only as the opinions of eminent lawyers, and profound jurists, but also because given officially, in conformity to law, to regulate the conduct of the ministerial officers, and to build up and establish a regular system for the disposal of the public lands. If the land was a part of Dubreuil's claim, then it was not subject to entry; and even if Dubreuil's claim had been decided to be invalid, and the same had again become public land, it would not be subject to private entry, until again offered at public sale. If Dubreuil's claim was not valid. then the pre-emption claim of Watson, under which Allison claims, was sufficient to hold the land. The pretended entry of Hunter was invalid, because Allison had a pre-emption thereon, and it had been previously withheld from sale. The conveyance from Dubreuil to Watson, of itself, constitutes a good equitable title in Watson, if the claim of Hunter be bad, and having such a title, he is in a position in which he may successfully assail the title of Hunter for fraud and illegality. In ejectment, a defendant may avoid a deed for fraud. 1 Marshall, 425; 5 Littell, 186.GLOVER & CAMPBELL, and URIEL WRIGHT. for Defendants. We insist that the judgment of the Circuit Court ought to be affirmed. We shall endeavor to establish certain propositions of law and fact in the case, and by the light of these, examine the evidence which the plaintiff in error contends was [[[[[erroneously] excluded by the court.

1st. The acts of all public officers performed within the scope of their general authority, are prima facie valid; and it is presumed, that all the requisite steps have been taken legally to consummate such acts.

2nd. It follows from this, that if there be any preliminary named in a statute to the performance of such act, which is deemed of sufficient importance to defeat the act if omitted, the burthen of showing such omission, is on the party seeking to avoid the act.

3rd. Conceding the land was never offered at public sale, the entry is not necessarily void. In the exercise of a power conferred by statute, it is not every omission to comply with the provisions of a statute, which will defeat the act of the officer. “Statutes are sometimes directory, and in such case, a breach of the condition works no forfeiture of the act done.” 1 Kent's Com. 465. Provisos in a statute, do not always amount to a condition. 2 Cow. & Hughes, Dig. 1384, c. No. 4. Where a statute directs an officer to do a thing in a specified time, without restraining him against doing it afterwards, the act constitutes no limitation on the power of doing it afterwards. 3 Mass. 230. The essential requisites of a statute must be complied with, or an act done under it will be void: otherwise, where the statute is directory. 5 Hill, 16. Thus, statutes prescribing the manner of proceeding in the collection of debts, as that slaves shall not be seized, and sold under execution, until the remaining personal estate is exhausted; that real estate shall not be sold until all the personal estate is exhausted; that property neither real nor personal, shall be sold until duly advertised, have been considered as merely directory in these particulars, and official acts done in contravention of these provisions held valid in favor of innocent purchasers. 3 Bibb, 216, 202, 518; 1 Blackf. 212; 2 Blackf. 295; 8 Cowen, 282; 13 Cowen, 11, cited in 4 Kent's Com. 5th ed. note a, p. 430; 1 Mo. R. 543; 2 Bibb, 401; 3 Marsh. 282, 619; 2 J. J. Marsh. 36, 68. There is a distinction between a sale without authority, and one, where there is an authority not strictly pursued. “A purchaser is not bound, or otherwise affected by the irregular acts of an officer, when he has no notice of the irregularity, and does not connive at, or participate in the same. 1 Bibb, R. 155; 1 Mun. R. 95; 3 J. J. Marsh. 439; 4 Mun. R. 465, 474.

It is believed and insisted, that the case at bar falls within the bearing of the cases and principles cited; and that at most, the requisitions of the acts of Congress with reference to an offer at public sale before a private entry, are mere prudential directions to the officers of the land department, which may devolve a personal responsibility upon them, but never were intended to create a precedent condition, to a valid disposition of a tract at private entry. The defendant will endeavor to show that this conclusion is inevitable from a general view of the legislation on this subject. See Land Laws, Instructions and Opinions, part 1, act of Congress, May 18, 1796, p. 50; March 2, 1799, p. 61; March 1, 1800, p. 65; May 10, 1800, p. 72; March 3, 1803, p. 97; March 3, 1803, p. 100; March 26, 1804, p. 107; April 21, 1806, p 142; February 21, 1806, p. 130; March 3, 1807, p. 161; February 29, 1808, p. 163; March 31, 1808, p. 166; June 15, 1809, p. 172; April 30, 1810, p. 176; February 15, 1811, p. 184; March 3, 1811, p. 192-4; April 26, 1816, p. 273; April 27, 1816, p. 277; April 29, 1816, p. 279; March 3, 1817, p. 288; February 17, 1818, p. 294; March 18, 1818, p. 297; April 20, 1818, 306; March 3, 1819, p. 315; March 3, 1819, p. 318; April 24, 1820, p. 324; March 3, 1823, p. 364; March 3, 1823, p. 370-1; May 26, 1832, p. 501; July 10, 1832, p. 508; March 2, 1833, p. 516; June 26, 1834, p. 528-9; July 7, 1838, pp. 579, and 581.

4th. That if it were otherwise competent to show the fact, that the land had never been offered at public sale. oral testimony ought not to have been received in the case; all the considerations of public policy and convenience forbid such a construction of the law, as would have the effect of suspending every land title in the country, prior to the emanation of a patent upon so unsubstantial a foundation. That it has been repudiated in like cases, see 1 Har. & McH. p. 187; 1 Har. & Johns. 349; 2 Har. &. Johns. 132; 4 Har. & McH. 420; 6 Mo. R. 106. This court declare the incompetency of such proof. In the case of Craig v. Preston, Lit. Sel. Cases, 141, the Supreme Court of Kentucky declare, that such a construction of a law of Virginia ought not to be made, as would allow the introduction of parol evidence, to show that a land warrant did not issue in conformity to law.

5th. The power of canceling an entry with the register and receiver, has never been conferred upon the commissioner of the general land office. 5 Mo. R. 355; 9 Mo. R. 190-1. The cancelment of Hunter's certificate, therefore, if in fact it has been done, was a lawless act, which the Circuit Court properly disregarded.

6th. Should we grant the power of the commissioner to cancel by his arbitrary will, without notice, without a jury, without evidence, in the absence of the party, and without any right of appeal to any other tribunal; the best evidence of such cancelment was not offered to the Circuit Court, and the mere letters of the commissioner...