Carman v. Johnson

• Citation: 20 Mo. 108
• Parties: CARMAN, Appellant, v. JOHNSON, Respondent.
• Decision Date: 31 October 1854
• Court: Missouri Supreme Court

20 Mo. 108

CARMAN, Appellant,

v.JOHNSON, Respondent.

Supreme Court of Missouri.

October Term, 1854.

1. It is settled that the fee of land disposed of by the United States remains in the government until a patent issues, and that a patent is a better legal title than a prior entry.

2. A patent may be obtained under such circumstances that the patentee will hold the title in trust for the party making the prior entry, and may be compeiled to convey by a proceeding in equity.

3. Under the new practice, a party who relies upon facts which would constitute a ground of equitable relief as a defence to an ejectment, must set them out in his answer with the same particularity that would formerly have been necessary in a bill in chancery.

4. The mere statement in an answer that the defendant's entry was prior to the entry upon upon which the plaintiff's patent issued, is no ground of equitable relief.

Appeal from Clark Circuit Court.

This was an action for the possession of forty acres of land, which the plaintiff claimed under a patent from the United States, dated April 19, 1850. The defendant claimed the land under an entry with the register and receiver of the land office at Palmyra, dated June 21st, 1847. Under the instructions of the Circuit Court, the substance of which is stated in the opinion of Judge Gamble, the plaintiff submitted to a nonsuit, and after an unsuccessful motion to set the same aside, appealed to this court.

Dryden, for appellant.

1. When there is authority in the officer issuing a patent to issue it, all enquiry into the regularity of his conduct in issuing it is precluded, except in a direct proceeding to vacate it. (Allison v. Hunter, 9 Mo. 758.) 2. A patent is a better legal title than an entry. (R. C. 1845, tit. Ejectment, § 2, p. 440; Allison v. Hunter, 9 Mo. 758; Bagnell v. Broderick, 13 Peters, 436; Griffith v. Deerfelt, 17 Mo. 31.)Anderson and Richmond, for respondent.

1. The entry of Johnson entitled him to the patent, and a subsequent entry by Carman was illegal, and the patent issued thereupon void. (Groom v. Hill, 9 Mo. 320; Id. 473, 741:) 2. Johnson's entry was prima facie correct, and no sufficient evidence was offered to rebut the presumption of its correctness.

GAMBLE, Judge, delivered the opinion of the court.

The plaintiff claims the land in controversy in this ejectment under a patent. The defendant sets up an entry older than the patent, and denies that, after his entry, the United States had a right to sell the land to the plaintiff, or to issue a patent, and alleges that the plaintiff obtained the patent by fraud, and therefore it is void.

Evidence was given for the purpose of showing that the plaintiff, having entered by mistake a different tract of land, had applied to have the entry cancelled, and to have the money applied to the entry of the land now in dispute; such applications could only be acted upon and decided by the commissioner of the general land office; and that, pending the plaintiff's application before that officer, the defendant had been permitted to enter the land, upon condition that the entry was to be vacated if the application of plaintiff was sustained; that the plaintiff's application was sustained, and the officers of the land office vacated the entry of defendant and issued a patent to the plaintiff.

The Circuit Court, in the two instructions given at the request of the defendant, and which are the only instructions given, required that the plaintiff, in order to recovery in this ejectment, should show facts anterior to his patent and prior to the entry of defendant. The first of these instructions required that he should show an application to the register, made in a particular manner, and prior in time to the defendant's entry, or he could not recover. The second lays down the law broadly that he could not recover without showing an application and entry older than the defendant's entry.

The Supreme Court of the United States has repeatedly declared that the fee in land disposed of by the United States remains in the government until the patent issues, and this court has followed those decisions, acknowledging their obligation. In the present case, two parties claim the right of entering a particular portion of public land, and a controversy is carried on before the officers of the land department. The decision is in favor of the plaintiff, and his entry is recognized and the patent issues to him. The fee in the land is thus vested in him, and if there is any equity in favor of defendant, which would make the plaintiff a trustee of the fee for his benefit, that equity is to be enforced, not by declaring the patent void, but by a proceeding by which the fee would be transferred from the plaintiff to the defendant. If the defendant had a patent junior to that of the plaintiff, it might...