Darcy v. McCarthy

• Decision Date: 05 November 1886
• Citation: 12 P. 104,35 Kan. 722
• Parties: MICHAEL DARCY v. WILLIAM F. MCCARTHY
• Court: Kansas Supreme Court

12 P. 104

35 Kan. 722

MICHAEL DARCY v. WILLIAM F. MCCARTHY

Supreme Court of Kansas

November 5, 1886

Error from Ottawa District Court.

EJECTMENT brought by Darcy against McCarthy. Trial at the May Term 1884, and judgment for the defendant. The plaintiff brings the case here. The opinion states the material facts.

Judgment affirmed.

L. J Crans, and Thompson & Richards, for plaintiff in error.

Chipman & Painter, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action in ejectment, brought by Michael Darcy to recover from William F. McCarthy the possession of the northeast quarter of section 9, in township 10 south, of range 5 west. The judgment rendered at the first trial was vacated upon a demand made under § 599 of the code, and the second trial was had before the court without a jury. To maintain his action, the plaintiff offered in evidence the duplicate receipt of the receiver of the United States land office at Concordia, Kansas, which is as follows:

"RECEIVER'S OFFICE, CONCORDIA, KANSAS.-- No. 2495. Preemption act of 1841; (see commissioner's letter G, of September 10, 1883; September 14, 1884.) -- Received from Michael Darcy, of Ottawa county, Kansas, the sum of two hundred dollars, and cents, being in full for the northeast quarter of section No. 9, in township No. 10 south, range No. 5 west, containing one hundred and sixty and hundredths acres, at $ 1.25 per acre, $ 200. E. J. JENKINS, Receiver."

There was also offered in evidence by the plaintiff a certified copy of a letter of the commissioner of the general land office, which is as follows:

"WASHINGTON, D. C., September 10, 1883.-- Register and Receiver, Concordia, Kansas -- Gentlemen: I am in receipt of your letter of the 31st ult., transmitting preemption proof of Michael Darcy for my consideration. Darcy filed D. S. 10,186 for N.E. 1/4 9, 10 S., 5 W., Dec. 11, 1882; alleged settlement, Nov. 6, 1882. W. F. McCarthy made H. E. 16,880, Nov. 11, 1882. There is no reason why, upon proof being made to your satisfaction, you should not allow Darcy to make his cash entry, he having complied with the requirements of the law in the matter of giving notice of such intention. I return the papers transmitted with your letter.

Respectfully,

N. C. MCFARLAND, Commissioner."

This, with testimony showing the value of the possession to be $ 100, was all the evidence offered by the plaintiff, and the defendant then offered in evidence a copy of another communication from the commissioner of the general land office, which, with the certificate of the register of the local office, is as follows:

"DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., October 4, 1883.-- Register and Receiver, Concordia, Kansas -- Gentlemen: By my letter G, of September 10, 1883, you were instructed to allow Michael Darcy to make entry, upon proofs admitted, of N.E. 1/4 9, 10 S., 5 W., recorded by his D. S. 10,186. It appears from a letter of Messrs. Olney & Co., who write in behalf of Wm. F. McCarthy, who made H. E. 16,880 on said tract Nov. 11, 1882, and the records of this office corroborative of their statements, that McCarthy had instituted a contest against H. E. 15,673 by Darcy on this same land, which he prosecuted to a final decision, canceling said H. E. 15,673, October 30, 1882. This action gave McCarthy a preference right for thirty days, under act of May 14, 1880. As McCarthy made his H. E. October 11, 1882, he was strictly within the law, and any action allowing Darcy's entry was erroneous. I have therefore now to rescind said letter of September 10, 1883, of which action you will advise Darcy.

Respectfully,

N. C. MCFARLAND, Commissioner."

"U. S. LAND OFFICE, CONCORDIA, KANSAS, November 26, 1883.-- I hereby certify that the above and foregoing is a true copy of the U.S. land commissioner's letter G, now on file among the records of this office.

S. H. DODGE, Register."

The plaintiff objected to the admission of this testimony, but the court received it, and gave final judgment in favor of the defendant; and the only ground of reversal urged here is the admission of the commissioner's letter. One objection is, that the letter was not properly certified. We deem the certificate to be sufficient. Copies of any official letter or communication received by the register or receiver of any land office of the United States, from any department of the government, that have been duly certified by the register or receiver having the custody of such official letter or communication, are admissible in evidence, the same as the original. (Code, § 384.) The certificate is claimed to be defective because it fails to show that the letter to which it is attached is the copy of an official letter. It appears to be a letter addressed by the commissioner of the general land office to his subordinates upon a matter which clearly comes within the scope of the official duty of those officers. The...