O'Brien v. Perry

• Decision Date: 31 March 1859
• Parties: O'BRIEN, Appellant, v. PERRY et al., Respondents.
• Court: Missouri Supreme Court

28 Mo. 500

O'BRIEN, Appellant,

v.PERRY et al., Respondents.

Supreme Court of Missouri.

March Term, 1859.

1. On the third of October, 1807, one A. gave to the United States recorder of land titles a notice in writing to the effect that he claimed, as assignee of B., six hundred and thirty-nine acres of land situate at Mine à Breton, by virtue of “inhabitation and cultivation” thereof by said B. This claim was presented to the board of commissioners in 1807, but was not then acted upon. In 1811, the claim was again presented to the board and was rejected on the ground that B. claimed another tract of land by concession. In 1820 notice of the claim was filed in the land office at Jackson, Mo., and the land was marked out as reserved from sale on the plat on file in said office by red dotted lines. In 1825, Recorder Hunt, upon proof made before him by C. and D., who were the legal representatives of A. and B. as respected the whole tract claimed at Mine à Breton, issued certificates of confirmation to said C. and D. for two lots--one a village lot in Mine à Breton, and the other an outlot of said village containing about fourteen arpens. Both these lots were embraced in the tract of six hundred and thirty-nine acres as claimed before the recorder by A. On the 3d of December, 1833, C., who had acquired the interest of D., submitted said claim for the said tract to the board of commissioners organized under the act of Congress of July 9, 1832, and adduced testimony in its support. The board took no action thereon. On the 7th of August, 1834, C., in consideration of the privilege of preëmption granted by the third section of the act of Congress of July 9, 1832, taken in connection with the supplementary act of March 2, 1833, waived and relinquished to the United States, by deed duly executed, all claim whatever to said tract of six hundred and thirty-nine acres. The description in this deed of waiver and relinquishment embraced the whole tract including the village lot and outlot covered by Hunt's certificates. At the date of this deed of relinquishment and waiver, C. resided upon the village lot and cultivated the outlot for which Hunt's certificate had been issued in 1825, but no portion of his improvements extended beyond the boundaries of these lots, except a part of a field, which did extend beyond the lines of said outlot as afterwards surveyed by the United States. After his said relinquishment and waiver and about the 1st of September, 1834, C. made application to the register of the land office at Jackson, Mo., to enter said tract as a preëmptor under the third section of the act of Congress of July 9, 1832. He was not then permitted to make the entry because the public surveys were not then completed. Afterwards, on the 26th of November, 1839, C. was permitted to and did enter, as preëmptor under said act of Congress of July 9, 1832, in conformity with the township and section lines, and their interferences with said tract so relinquished to the United States, various portions thereof, among others a fractional half quarter section in fractional section fifteen, township thirty-seven north, range two east. In 1843, this entry was cancelled by order of the commissioner of the general land office, concurred in by the secretary of the treasury, on the ground that the third section of the act of July 9, 1832, gave the right of preëmption to none but actual settlers and housekeepers on the land sought to be entered; that C. did not bring himself within the provisions of said section, his residence on the village lot and his actual possession and cultivation of the outlot not constituting him an actual settler and housekeeper as to the whole tract claimed. Afterwards, in 1847, one E. entered said land as a preëmptor, and in 1854 obtained a patent therefor from the United States. Held, in a suit for possession by E. against C., that the claim of C., as the legal representative of B., to the tract of six hundred and thirty-nine acres was a claim within the meaning of the act of congress of March 2, 1833; that C. was entitled, under the third section of the act of Congress of July 9, 1832, to relinquish or waive said claim in favor of the United States; that, having made such a waiver or relinquishment, C. had a right, under said third section, to enter said tract as a preëmptor irrespective of the question whether he was an actual settler and housekeeper thereon or not; that the act of the executive officers of the United States in cancelling and annulling C.'s entry was void; that his entry, notwithstanding such cancellation, was valid and binding upon the United States and all persons claiming under the United States by title subsequent, whether by patent or otherwise.

Appeal from Washington Circuit Court.

This was an action in the nature of an action of ejectment, commenced May 4, 1855, to recover possession of a tract of 58 54-100 acres, being the east fractional half of the southeast fractional quarter of fractional section fifteen, township thirty-seven north, range two east, in Washington county. To support his right of recovery, the plaintiff introduced the evidence taken before the register and the receiver at the land office at Jackson, Mo., in support of his right to a preëmption; also the receipt of the receiver and the certificate of the register. All these were dated July 3, 1847. The plaintiff also adduced in evidence a patent dated May 4, 1854, to himself of the land thus preëmpted. Here the plaintiff closed.

The defendants then introduced in evidence against the objections of plaintiff a transcript from the office of United States recorder of land titles. This transcript contained the following: 1. A notice of claim given by John Perry, sr., to the recorder of land titles. This notice was dated October 3, 1807. In this notice Perry stated that he claimed “as assignee of Bazil Vallé six hundred and thirty-nine acres of land situate at Mine à Breton, in pursuance of the inhabitation and cultivation made on the said land by the said Vallé conformably to the laws of the United States made and provided,” &c. 2. A deed from Vallé to John Perry, sr., conveying a tract of land described as follows: “All my right, title and claim to my settlement at said mines, to include the house in which I now live, together with my garden and the lot of ground heretofore improved by me, supposed to be ten acres, more or less, with an out-house annexed to said tenement,” &c. This deed purported to be dated March 18, 1806. 3. Minutes of board of commissioners under act of Congress. These minutes were dated December 5, 1807. They showed that Perry appeared before the board and produced the above notice and deed and testimony showing that Vallé had possessed and cultivated said land from 1792 up to the date of the deed to Perry. The court did not act upon the claim. 4. Minutes of proceedings of commissioners, December 27, 1811. The claim was again presented and the board decided that the claim “ought not to be granted, because it appears that Bazil Vallé claims another tract of land under concession.” 5. Minutes of testimony in the form of affidavits submitted to the board of commissioners December 3, 1833, by John Perry as legal representative of Vallé. The board made no order and gave no opinion respecting the same. 6. A deed of relinquishment dated August 7, 1834, executed by John Perry and wife to the United States. In this deed the claim of Vallé, the notice to the recorder, the deed from Vallé to John Perry, sr., a deed dated January 18, 1819, from John Perry, sr., to Wm. M. Perry and John Perry, a deed of release from the heirs of Wm. M. Perry to John Perry, dated December 7, 1825, were recited. After these recitals the deed proceeds as follows: “do hereby--and in consideration of the privilege of preëmption intended to be conferred on us, the party claiming to hold said tract of land, by the provisions of the third section of the act of Congress approved on the 9th of July, 1832, entitled ‘An act for the final adjustment of private land claims in Missouri,’ and the supplementary act thereunto of March 2, 1833, entitled ‘An act supplemental to the act entitled an act for the final adjustment of land claims in Missouri'--forever waive, release, renounce, relinquish and surrender unto the United States of America all the right, title, interest and claim which we, the said John Perry and Eliza M., his wife, allege and assert or believe to have acquired, or had at any time alleged and asserted or believed to have acquired unto the tract above described.”

M. Frissell, sworn as a witness, stated, against the objection of plaintiff, that he had seen a plat of a survey made by John Stewart, purporting to be made in 1806, of the tract of land claimed by John Perry under the notice filed with the recorder in 1807; that it included the tract in controversy, also the town lot upon which Perry lived; that he, witness, had made diligent search for said plat among the papers of John Perry and could not find it; that a store in which Perry kept many papers was destroyed by fire in 1843.

The defendants offered in evidence the report of the register and the receiver of the land office at Jackson, Mo., to the commissioner of the general land office. The report was dated September 16, 1842, and was made upon the claim of Perry to preëmption under the acts of Congress of July 9, 1832, and March 2, 1833. This report recited the following facts: the deed from Vallé; the presentation of the claim of Perry to the board of commissioners agreeably to a plat of survey made by John Stewart (which plat was mentioned in the report as accompanying it); the rejection of the claim by said board; that on the 16th of July, 1825, William and John Perry, claiming under said settlement right acquired of Bazil Vallé, had confirmed to them under the act of June 13, 1812, and May 26, 1824, by the recorder of land titles, a town lot and out-lot in the ...