Clarkson v. Buchanan
| Decision Date | 31 October 1873 |
| Citation | 53 Mo. 563 |
| Parties | JERRY B. CLARKSON, Respondent, v. WILLIAM BUCHANAN, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court.
James Carr, for Appellant.
I. The act of September 28th, 1850, (9 U. S. Stat., 519,) lid not pass the title in fee to said States, proprio vigore and unconditionally, for want of words of present grant. The words in the first section are “ shall be,” and same are hereby, granted to said State. The words “shall be” import futurity within themselves. But when construed in connection with the following words in the second section of said act, there can be no doubt about it, viz: “It shall be the duty of the Secretary of the Interior, as soon as may be practicable after the passage of this act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the Governor of the State of Arkansas, and, at the request of said Governor, cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State of Arkansas, subject to the disposal of the legislature thereof.”
II. The overture is complete on the part of the United States, when this ““duty” shall have been performed. But the title is not thereby divested out of the United States. It is then left to the Governor of the State, as its legal head and representative, to determine whether he will, on behalf of the State, accept the lands embraced in said “list and plats.” Unless he accepts there is no agreement, and no contract is made.
III. There is no evidence in the record; that the land in controversy was ever selected by any agent of Macon county, as swamp or overflowed land; that it was ever reported to the Commissioner of the General Land Office; or, that “an accurate list and plats” of said land was ever made out by the Secretary of the Interior, and the same transmitted to the Governor of the State; or that, “at the request of said Governor,” “a patent” had been “issued to the State therefor.”
IV. The United States could not compel the States to accept said lands; and without acceptance the grant is necessarily void. (Ellis vs. Marshall, 2 Mass., 277; 1 Kyd. on Corp., 65, 66; Ang. and A. on Corp., § 82; Dartmouth College vs. Woodward, 4 Wheat., 518.)
So thoroughly has the Federal Government acted upon the assumption, that a grant of lands to a State is a contract not binding upon such State until accepted, that it has always required the State to accept such grant in some positive unequivocal manner. See the Act of April 30th, 1802, providing for the admission of Ohio into the Union, , the Act of April 19th, 1816, providing for the admission of Indiana into the Union, , the Act of April 18th, 1818, providing for the admission of Illinois into the Union, (§ 6, Chap. 673, Id. 430), and the ordinance of July 13th, 1787, (1 vol. Id. 51).
V. Admitting for the sake of argument, that the State did accept the donation of the swamp and overflowed lands, as required by the act of September 28th, 1850, before the definite location of the line or route of the Hannibal and St. Joseph Railroad, still such acceptance would only entitle her to such lands as come within the purview of the said act. Her claim would be in the nature of “a float” (Menard's heirs vs. Massey, 8 How., 309), until the Secretary of the Interior had made out “an accurate list and plats of said lands.” Then the State would have had a jus ad rem to the lands embraced in said ““list and plats.” This inchoate title might then have become a jus in re by issuing a patent therefor. But prior to the Secretary of the Interior making out such “list and plats,” no person knew what lands were swamp and overflowed within the purview of the law. At common law, the grant would be void for uncertainty.
William H. Sears & Albert F. Foster, for Respondent.
I. The plaintiff founded his title to the land in question on the Act of Congress approved September 28th, 1850, entitled “an Act to enable the State of Arkansas and other States to reclaim the swamp land within their limits.” And that act was by its terms a present absolute grant to the several States of all the swamp land lying therein, belonging to the United States at the time of the grant. (9 Stat. at Large, 519, § 1; Han. & St. Jo. R. R. Co. vs. Smith, 9 Wal., 95.)
II. It was a grant in the form of law, describing the subject of the grant by its quality instead of by its quantity, or metes and bounds, which is a sufficiently specific and certain description to make the grant operative as a present absolute grant. .)
III. Wherever in a grant of land the description is such, that the land intended to be conveyed can be ascertained by it, it is then sufficiently specific and certain to give effect to the grant.
IV. The grant should therefore be treated as a present absolute grant, even though the act does provide for the issuing of a patent by the Secretary of the Interior; for, where land is granted by Congress, or a State legislature, and the same act authorizes the issuing of a patent, a patent is not necessary to show a good title. (Fenwick vs. Gill, 38 Mo., 510; Wilcox vs. Jackson, 13 Pet., 516.)
V. And parol evidence was properly admitted for the purpose of preventing the grant of Congress from becoming inoperative for uncertainty, to bring it within the grant, and to identify the land granted. .)
VI. The second section of the act of Congress in question, so far as it relates to the selecting of the swamp land, making out list and plats of the same, and issuing patents therefor, is merely directory; and it is not intended to, in any manner, limit nor restrict the words of present, absolute grant, expressed in the first section. (Sedg. on Stat. and Const. Law, 368, and cases there cited; 9 U. S. Stat., 519, § 2.)
VII. The land in question, being in fact swamp land in 1850, having been selected, placed in the list of swamp land lying in Macon county, and having been transmitted to the Governor as such, and being included in the list of swamp land on file in the office of the Register of lands, the State was entitled to a patent for the same. Hence the failure to obtain such patent can amount to nothing more than a technical defect in the plaintiff's title, of which the defendant in this case cannot take advantage. (Tyler on Eject. and Adv. Enjoy., 74; McAlistor vs. Williams, 1 Turn., 334; Zeringue vs. Williams, 15 La. An., 76.)
VIII. The plaintiff produced in evidence a certified copy of the list of swamp land on file in the office of the Register of Lands, which list embraces the land in question. The statute of this State makes such lists, or certified copies thereof, prima facie evidence of title in Macon county, and the plaintiff, being the grantor of Macon county, made out a prima facie case. (W. S., 868, § 9.)
This was an action of ejectment to recover the possession of a tract of land in Macon county containing forty acres.
The petition was in the usual form, and the answer was a simple denial, raising the general issues. The plaintiff to show title in himself, read in evidence:
First--An act of Congress, approved September 28th, 1850, entitled “An act to enable the State of Arkansas, and other States, to reclaim the swamp lands within their limits.”
Second--The act of the General Assembly of the State of Missouri, entitled “An act donating certain swamp and overflowed land to the counties in which they lie;” approved March 3d, 1851.
Third--A deed to the land in question from Macon county, executed by the Swamp Land Commissioner of that county.
Fourth--A certified copy of the list of swamp land selected in Macon county, on file in the office of the Register of Lands, which list embraced the land in controversy.
The plaintiff, further to maintain his title, proved by the testimony of witnesses, that they knew the land in 1850; that it was swamp land subject to overflow and was unfit for cultivation. This last evidence was objected to by the defendant, but the objection was overruled.
The defendant held possession by purchase from the Hannibal & St. Joseph Railroad Company, and, to show that plaintiff had no legal title, he offered in evidence; an act of Congress, approved June 10th, 1852, entitled “An act granting the right of way to the State of Missouri and a portion of the public lands to aid in the construction of certain railroads in said State;” an act of the General Assembly of the State of Missouri, approved September 20th, 1852, entitled “An act to accept a grant of land made to the State of Missouri by the Congress of the United States, to aid in the construction of certain railroads in this State, and to apply a portion thereof to the Hannibal & St. Joseph Railroad;” a copy of the resolutions of the Board of Directors of the ...
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