Egbert v. Bond

• Decision Date: 15 February 1899
• Citation: 49 S.W. 873,148 Mo. 19
• Parties: EGBERT v. BOND.
• Court: Missouri Supreme Court

49 S.W. 873

148 Mo. 19

EGBERT v. BOND.

Supreme Court of Missouri, Division No. 1.

February 15, 1899.

PUBLIC LANDS — PROOF OF OCCUPANCY — PATENT — EQUITABLE RIGHT TO TITLE.

Under Rev. St. U. S. § 2291, providing that if, after his entry on unappropriated lands, the person making entry, or, if he is dead, his widow, proves that he has cultivated it for five years immediately preceding the filing of his affidavit, he shall be entitled to a patent, where a husband has entered on such lands, and complied with the statutory requirements, his equitable right to have the title vested in him is complete, and he cannot be deprived of it by his wife, whom he had deserted, making the final proof of occupancy for him.

Appeal from circuit court, Ozark county; W. N. Evans, Judge.

Action in ejectment by Anna S. Egbert against Thomas Bond. There was a judgment for defendant, and plaintiff appeals. Reversed.

Walter A. Phipps and Jas. H. Pratt, for appellant. A. H. Livingston, for respondent.

BRACE, P. J.

This is an action in ejectment in common form to recover a 120-acre tract of land in Ozark county. The case was tried by the court without a jury, the issues found for the defendant, and from the judgment in his favor the plaintiff appeals. In support of her claim the plaintiff introduced in evidence a patent from the United States dated September 2, 1892, to one Eli Cobb, for the land in question; and it was admitted that the plaintiff has a deed to the premises from said Cobb, and that she purchased the same for a valuable consideration. It was also admitted that the defendant has a deed to the premises from Martha E. Cobb, the divorced wife of the said Eli Cobb. The patent was issued to Cobb on deposit of a certificate of the register of the land office at Springfield, showing that his claim to said land had been established and consummated under the homestead laws of the United States. The original entry seems to have been made in 1884. The defendant, to maintain his claim and defense under the deed from Mrs. Cobb, introduced evidence tending to prove that the said Cobb, with his said wife, and their children, continued to live together on said tract of land, improving and cultivating the same, from the time of the original entry until about the 4th of July, 1890, when he deserted his family, and went off with another woman; that Mrs. Cobb, continuing to reside on the premises with her children thereafter, on or about the 1st of October, 1890, made final...