Fenwick v. Gill

• Decision Date: 31 October 1866
• Citation: 38 Mo. 510
• Parties: JAMES G. W. FENWICK, Respondent, v. NAPOLEON B. GILL, Appellant.
• Court: Missouri Supreme Court

38 Mo. 510

JAMES G. W. FENWICK, Respondent,

v.NAPOLEON B. GILL, Appellant.

Supreme Court of Missouri.

October Term, 1866.

Appeal from and Error to Perry Circuit Court.

This was an action of ejectment for recovery of possession of, 1st, fractional sections 5 and 6, lying north of land claim of G. A. Hamilton, No. 1244, in township 34 N., R. 14 E.; the S. E. fractional quarter and N. W. fractional quarter of fractional section 31 and fractional section 32, T. 35 N., R. 14 E., granted by United States patent dated May 6, 1857; 2d, and the S. W. quarter and fractional N. E. quarter of fractional section 31, T. 35 N., R. 14 E., granted by United States patent dated February 10, 1858.

Suit was commenced by the issue of the writ August 21, 1858. The case was before this court 34 Mo. 94, and was reversed for a technical error. By consent of parties the pleadings were amended to correct the mistake.

The plaintiff's title was as follows: Act of Congress, Mar. 3, 1857 (11 U. S. Stat. 511), the first section of which confirmed to Martin Fenwick his claim of 500 arpents, described as above, and in patent of May 6, 1857; the second section authorized Martin Fenwick to enter at $1.25 the other lands described as above, and in patent of February 10, 1858. Patent of United States of May 6, 1857. Patent of United States of February 10, 1858. Deed of Martin Fenwick to plaintiff, dated August 6, 1857; acknowledged May 8, 1858. This placed the legal title in the plaintiff.

The amended answer of defendant admitted possession of E. fractional half of S. E. fractional quarter of section 31 and fractional section 32, T 35 N., R. 14 E.; and E. fractional half of N. E. fractional quarter of fractional section 6, and S. W. fractional quarter of N. E. fractional quarter of section 6 and fractional section 5, all in T. 34 N., R. 14 E., and disclaimed all title and possession to the other lands in the petition described. Defendant had in his possession 150 acres.

To the land admitted to be in defendant's possession defendant denied the plaintiff's title and right of possession. To the lands in his possession, defendant claimed a right of pre-emption under Joseph Fenwick, who had a supposed head or settlement right under the acts of Congress by virtue of possession prior to December, 1803, and to which defendant claimed that he had succeeded. The answer alleged that Joseph Fenwick took possession in 1796 and held it until his death in 1810 and 1815, and that the possession was continued by his widow Chloe until her death in 1834, when it was rented out to tenants by her administrator until 1840; that possession was continued by them until 1849, when defendant came into possession, as he claimed, by contract of purchase, and that he had held the possession since under Joseph Fenwick and his legal representatives; defendant claimed a right of pre-emption. The answer went on to allege that Joseph Fenwick's claim was presented to the Board of Commissioners in 1806; that a survey was made of it and filed with the claim; that the claim was rejected by the old Board; was presented again to the Board of 1832, and was again rejected. It then alleged that Martin Fenwick, who had a claim under a Spanish grant, presented his claim to the old Board of Commissioners, and that it was rejected; that said Martin Fenwick had fraudulently altered the location of his claim so as to make it cover the location of Joseph Fenwick's claim, to the fraud and injury of said Joseph and his legal representatives; that this claim was presented to the Board of 1832 and was rejected; that said Martin Fenwick, by fraudulent representations, induced the land officers to mark this land as reserved on the plats; that defendant went to the Land Office at Jackson, to make pre-emption, but on account of the reservation was refused permission to enter the land; that said Martin Fenwick, by fraudulent representations and means, procured the passage of the act of Congress under which patents were issued to him, and so by fraud prevented defendant from proving his pre-emption under Joseph Fenwick, and by virtue of his own settlement denied the authority of the Land Office to reserve the land from entry and sale, &c., &c., and prayed that the title might enure to the defendant, and that plaintiff should convey to defendant upon paying $1.25 per acre. The answer then alleged that improvements made by Joseph Fenwick and his legal representatives, and prayed compensation for improvements, &c.

At the trial plaintiff presented the act of Congress, patent, and deed to himself, and proved the rents and profits, and rested.

The defendant's evidence proved that Joseph Fenwick had a claim to land as shown by the survey made in this suit; that he cultivated and possessed it until his death; that his widow and her family continued to reside on it until her death in 1834 or 1835; that by her administrator it was rented to Jacob Coons, and the rents accounted for until final settlement in 1840; that Coons lived there several years; his son succeeded him, then Jacob Scudder went into possession, and Gill Succeeded him in possession in 1849. There was no evidence of any conveyance from Coons to Scudder, nor from Scudder to Gill; there was some hearsay testimony that Scudder sold his improvement to Gill.

Fenwick's improvements were on S. E. quarter section 34, T. 35. Evidence was offered to show that Gill, before he got possession of the Fenwick claim from Scudder, had built a cabin and cleared two or three acres on E. half of S. E. fractional quarter section 6, T. 34 N., in 1849.

Martin was a son of Joseph and Chloe Fenwick, and plaintiff, the son of James, was their grandson, and thus one of their heirs and representatives.

Defendaut here offered to prove by a witness, that, after building his cabin, he told witness that he was going to the Land Office at Jackson to prove up a pre-emption. Upon plaintiff's objection, the evidence was rejected. At this time Scudder was living on the Fenwick claim.

Defendant offered evidence tending to prove that he went to the Land Office at Jackson, between the years of 1854 and 1858, for the purpose of procuring by pre-emption or entry the lands embraced in the Fenwick reservation, covering parts of sections 34 and 35; that conversation was had upon the subject with the Register, and that it appeared that by order of the General Land Office the land was reserved for the action of Congress.

There was no evidence of record from the Land Offices either of the Register or Receiver showing any affidavits filed by Gill to prove improvements made by him as required by acts of Congress--no evidence of any money deposited with the Receiver; but the evidence merely showed conversations upon the subject. The evidence did not show which of the quarter sections, Gill desired to pre-empt--whether that on which he made his own improvements, or those he got from Scudder.

Defendant gave in evidence the claims of Joseph Fenwick for 478 1/2 acres, and of Martin Fenwick for 500 arpents, which appear to have conflicted. These claims were presented to the Boards of Commissioners, and were rejected, in 1811 and 1835.

Defendant offered evidence to show that Martin Fenwick, in his petitions to Congress, had made false statements relating to his claim and his possession by tenants; and for the purposes of this argument it is admitted that Martin Fenwick had fraudulently altered the description of the location of his grant presented to the old Board December 8, 1807, the plaintiff having admitted the facts the defendant expected to prove by A. McPherson, county surveyor.

Defendant offered testimony to prove the value of the improvements upon the trial, but showed no conveyance to himself, or any title; but it appeared from the evidence that the land cultivated had been cleared by Joseph Fenwick and his legal representatives while they held the Spanish claim.

The plaintiff prayed the court to instruct the jury--

1. That the act of Congress of March 3, 1857, read in evidence by the plaintiff, and the patents issued by the United States to Martin Fenwick, dated May 6, 1857, and February 10, 1858, conveyed to said Fenwick the legal title to the lands described in said patents; and the deed from Martin Fenwick to the plaintiff read in evidence by the plaintiff, if the same be genuine, vested said legal title in the plaintiff; and if the lands described in said patent and deed be the same described in the plaintiff's petition, the plaintiff is entitled to recover in this action the possession of so much of said lands as the defendant by his answer admits to be in his possession.

2. The defendant has not in his answer and the evidence shown any legal defence to the recovery by the plaintiff of the lands admitted by the answer to be in defendant's possession.

3. The jury will, if their verdict be for the plaintiff, assess as damages the value of the total rents and profits since the commencement of this suit, with all damages sustained by any waste committed by said defendant, and will also find the monthly value of the rents and profits of the land detained.

4. If the defendant claims the land adversely to the plaintiff and those under whom he claims under the right to a pre-emption, by virtue of his possession, then he cannot hold the plaintiff, claiming under Martin Fenwick, as a trustee of the lands granted by the United States to Martin Fenwick, nor of any part thereto.

Which instructions the court gave, except the fourth; to the giving of which, or to the declarations of the law of the case so made for plaintiff by the court, the defendant excepted.

Defendant's instructions:

1. That if the court shall find from the evidence that the lands in controversy were occupied, inhabited and cultivated by Joseph Fenwick under a permit or grant by the proper Spanish authorities prior to and on the 20th day of December, 1803. and that he so continued to occupy and actually inhabited and cultivated the...