Burns v. Hayden
| Decision Date | 31 January 1857 |
| Parties | BURNS, Respondent, v. HAYDEN, Appellant. |
| Court | Missouri Supreme Court |
1. Where it appears that at the time of a sale of an improvement upon the public lands the vendor was out of possession, and that the land had been previously entered by a third person, the vendee in an action for the price may set up these facts as showing a want of consideration.
2. Where erroneous instructions are given, the Supreme Court will reverse the judgment of the lower courts without regard to the number of new trials previously awarded. (Harrison v. Cachelin, 23 Mo. 117, affirmed.)
Appeal from Polk Circuit Court.
This suit was originally commenced before a justice of the peace to recover the price of an improvement sold by Burns to Hayden. The case was appealed to the Circuit Court. The court refused the following instruction asked by the defendant: “If the jury believe from the evidence that the subject matter of this suit was for an improvement which Burns had made upon the public lands, and that after Burns made the improvement, said Tipton entered said land with a land warrant, and while Tipton so owned the land Burns sold his claim to the improvement to the defendant, and while Burns was out of possession, and there was no other consideration, they will find for the defendant.” Exceptions were duly taken.
Wright and Otter, for appellant, cited 16 Mo. 317; 23 Mo. 70; Dale v. Darnes, 7 Mo. 544; Carson v. Clark, 1 Scam. 113; 1 Smith L. C. 169, notes; 5 Tyrw. Exch. 2; 2 H. Bl. 320; Jones v. Shaver, 6 Mo. 642; 7 Mass. 22.
Napton, for respondent, cited Stubblefield v. Branson, 20 Mo. 302.
In the western states the possession of an improvement on the public domain may, we suppose, be considered a kind of squatter interest in the land--a subordinate species of property--held at the pleasure of the United States, and, to some extent, as between citizen and citizen, recognized and protected by the law. It is a common subject of traffic among the people, and the sale and delivery of it constitutes a sufficient consideration for a promise to pay the price, which the courts have pretty uniformly enforced. (Clark v. Shutz, 4 Mo. 235; Freeman v. Holliday, 1 Morris, Iowa, 80; Doyle v. Knapp, 3 Scam. 337; Stubblefield v. Branson, 20 Mo. 302.) In the present case, however, there was proof to the effect that the seller was not in the possession of the improvement at the time of the sale, and that the land was then private property, having been previously entered by a third party; and the court, when asked to do so, refused to...
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...section 3705. Hill v. Wilkins, 4 Mo. 86; Hill v. Deaver, 7 Mo. 57; Boyce v. Smith, 16 Mo. 321; Harrison v. Cachelin, 23 Mo. 117; Burns v. Hayden, 24 Mo. 215; Leahey v. Dugdale, 41 Mo. 517; The State ex rel. v. Horner, 10 Mo. App. 307. Indeed, the interpretation which counsel for respondent ......
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