Carman v. Johnson

• Decision Date: 31 October 1859
• Citation: 29 Mo. 84
• Parties: CARMAN, Appellant, v. JOHNSON, Respondent.
• Court: Missouri Supreme Court

29 Mo. 84

CARMAN, Appellant,

v.JOHNSON, Respondent.

Supreme Court of Missouri.

October Term, 1859.

1. The official correspondence of the commissioner of the general land office and of the register and receiver of the United States land offices is admissible in evidence to prove the official acts of those officers.

2. In a case arising under the act of Congress of January 12, 1825 (4 Stat. at Large, p. 80), where the entry and purchase of land at a land office of the United States is void by reason of a prior sale by the United States, the only relief to which the purchaser is entitled is the repayment of the money paid by him.

3. In no case do the various acts of Congress of March 3, 1819 (3 Stat. at Large, p. 526,) of May 24, 1824, (4 Id. p. 31,) of January 12, 1825, (4 Id. p. 80,) or of May 24, 1828, (4 Id. p. 301,) entitle one entering land at a land office of the United States to a change of the entry and a transfer of the payment made to another tract, except in case such purchaser had made entry of a tract not intended to be entered by reason of a mistake as to the true numbers of the tract intended to be entered.

4. An entry of land in a land office of the United States, made without warrant and authority of law, is a nullity.

5. A patent obtained by fraud will enure to the benefit of the person in fraud of whose rights it is obtained.

Appeal from Lewis Circuit Court.

This case was formerly in the supreme court. The decision of the court is reported in 20 Mo. 108. It was an action in the nature of an action of ejectment to recover possession of a tract of forty acres, the south-west quarter of the north-east quarter of section twenty-nine, in township sixty-six, of range seven west. The facts as they appeared in evidence are substantially and briefly as follows: In September, 1846, Carman entered at the land office at Palmyra a tract of forty acres that had been previously entered by S. and W. Hunt. The mistake having been discovered, Carman, on the 26th of May, 1847, relinquished to the United States the tract so mistakenly entered, and made application to be allowed to change the entry and to enter the tract in controversy in lieu of the other. This application and the accompanying affidavits were forwarded by the register to the commissioner of the general land office. While this application was pending, the defendant Johnson made application at the land office at Palmyra to enter the tract in controversy. He did make such entry on the 21st day of June, 1847. The entries upon the books of the receiver and register were afterwards erased by those officers on the ground that the entry by Johnson was conditional and made under an understanding with the register that Johnson was to see Carman, and if the latter insisted upon his right to the tract, then Johnson was to surrender his receiver's receipt and receive back his purchase money. There was much testimony bearing upon the nature of the conversations and understanding had and entered into between Johnson and Davis, the register. Afterwards, on February 4, 1848, Carman--having received a draft for fifty dollars from the treasury department of the United States, which sum was refunded to him for the land entered by him by mistake--entered the land in controversy. He, Carman, on the 19th of April, 1850, received a patent therefor from the United States. There was much evidence introduced, against the objection of plaintiff, consisting of official correspondence of the commissioner of the general land office, of the register and the receiver at the land office at Palmyra. The court admitted in evidence, against the objection of plaintiff, the deposition of Rush, the present register of the land office at Palmyra. In this deposition Rush set forth the usage of the land office in cases of applications for changes of entries. He stated that where such applications were made the land sought to be entered was withheld from sale until the commissioner of the general land office had acted upon the application. He also stated that no application for a change of entry had, so far as he remembered, been granted at the Palmyra office, except in case where the party made a mistake as to the numbers of the tract entered at the time of entering, and shows that he intended to enter the tract to which he asks the change to be made. If the entry was illegal on account of the land having been previously sold, the practice is to refund the purchase money and not to grant a change of entry.

The cause was tried upon an amended answer, in which the defendant set forth the circumstances under which the various entries were made and the patent of plaintiff obtained, and prayed for a decree of title. The court submitted to the jury the following issues: “1st. What have been the value of the rents and profits of the land in controversy since the defendant entered into the possession thereof? 2d. Was the patent issued to the plaintiff by the United States government for the land in controversy obtained by the plaintiff fraudulently? 3d. At the time of the alleged entry by defendant of the tract in controversy, was there an application of the plaintiff pending before the land department at Washington city for a change of a prior entry by him to the tract now in controversy? 4th. Has the defendant made any permanent improvements on said land; if so, what; and what is their value?”

The plaintiff asked the court to instruct the jury as follows: “1. If the jury shall find from the testimony that Joseph Carman had applied for the land in controversy to the register on the 26th of May, 1847, and that his application was pending at the time of the attempted entry by Johnson, said entry itself was void by law, and the register had no authority to sell to said Johnson. The issuing of the patent to Carman vested the title in him. 2. If the jury shall find that Carman did apply to enter the land in controversy on the 26th day of May, 1847, and said application was pending, that no acts of the register or of Joseph Carman after said date would be fraudulent as against Johnson. 3. Before Johnson can set up fraud against Carman, he must show that he had an interest in the land as against the United States, or some right acquired in the entry under the law of the United States; and in that case the acts of Carman or of the register in requiring affidavit from Johnson or notice to Johnson [ sic]; nor if it should be found that Carman had deceived Johnson or made false representations to him on his erasure of his entry on the books, could be set up in his favor against the patent, unless an interest is shown in Johnson. 4. If the jury believe from the evidence that Carman did in fact apply for a change of entry to the land in question on the 26th of May, 1847, and that said application was pending when Johnson applied to enter said land on the 21st of June, 1847, then Johnson acquired no right by his said application to enter an attempted entry, and no representations made either by Carman or Col. Benjamin Davis in relation to said application of Carman, of May 26, 1847, or in relation to Johnson's subsequent application, can be held as fraudulent against Johnson, nor can they affect the title of Carman under the patent, and they should therefore find the second issue for Carman.” Of these instructions the court gave the third and refused the others.

The court, at the instance of the defendant, gave the following instructions: “1. An application for a change of entry, in cases where by the laws of the United States no change of entry is authorized and in which no change is granted, amounts in law to no application and is void from the beginning. 2. The laws of the United States do not authorize a change of entry in cases where the United States had no title to the land entered, whether by previous sale or otherwise; but that in such cases the law only authorizes the refunding of the purchase money. 3. If the jury believe from the evidence in the cause that the plaintiff (Carman) purchased by mistake the south-west quarter of the south-west quarter of section twenty, township sixty-six, range seven, which had been previously sold to Silas and William Hunt, and to which the United States had then no title, that in such case the plaintiff could not make a legal application for a change of entry, but could only apply for refunding the purchase money; and if the jury shall so find the facts in this case, they should find the third issue in the negative; that is, that Carman, the plaintiff, had not applied for the land in controversy, unless he made some other application, of which there is no evidence in this case. 4. If the jury shall believe from the evidence in this cause that the plaintiff, or any person for him, sent false statements to the general land office, and shall also believe that these false statements induced the department to issue the patent to the plaintiff, then the jury should find the second question submitted to the jury in the affirmative. 5. If the jury shall believe from the evidence that the plaintiff (Carman), or any person for him and at his instance and request, made false statements and representations to the general land office with regard to either his application for the land in controversy or to the purchase thereof by the defendant, and that such false statements induced the department to issue the patent to the plaintiff, then the jury should find that the said patent was fraudulently obtained. 6. If the jury shall believe from the evidence in the case that the plaintiff (Carman) entered by mistake forty acres of land which had previously been sold to Silas and William Hunt, and that the plaintiff, on the 26th of May, 1847, made his relinquishment of said entry and applied to change the same to the land in controversy, and shall also believe that instead of granting the change of entry the department at Washington refunded the purchase money to Carman (the plainti...