Garton v. Cannada

• Decision Date: 31 January 1867
• Citation: 39 Mo. 357
• Parties: EDWIN S. GARTON, Plaintiff in Error, v. HUGH H. CANNADA AND WM. H. CAMPBELL, Defendants in Error.
• Court: Missouri Supreme Court

39 Mo. 357

EDWIN S. GARTON, Plaintiff in Error,

v.HUGH H. CANNADA AND WM. H. CAMPBELL, Defendants in Error.

Supreme Court of Missouri.

January Term, 1867.

Error to Pettis Circuit Court.

On the 6th day of April, 1860, the plaintiff Edwin S. Garton commenced his action of ejectment against the defendant Hugh H. Cannada for the recovery of the possession of the following real estate, situate in Pettis county: the S. W. 1-4 of the N. E. 1-4, the N. W. 1-4 of the S. E. 1-4 and S. W. 1-4 of section 30, T. 46, R. 23 W.

On the 2d May, 1860, the defendant Cannada filed his answer to plaintiff's petition, denying generally the allegations of plaintiff, and also setting up a suit commenced by William H. Campbell (who sued by his next friend, Colon C. Campbell) for the possession of the land in controversy.

On the 12th May, 1860, Wm. H. Campbell was made co-defendant, and filed his answer, setting up in substance the same facts that are contained in Cannada's answer. Campbell claimed to be lessor of Cannada. On the 25th March, 1861, the defendant Campbell filed an amended answer in said cause, and the same was continued from term to term until November 2, 1863.

The plaintiff asked the court to declare the law to be as follows:

1. The Government of the United States has the exclusive right of making the primary disposal of the soil of this State, and the acts of Congress and regulations made by and pursuant to said acts for the primary sale and disposal of such soil, and also for securing title in the same to the bona fide purchaser, are the paramount laws of the land upon this subject.

2. If the court finds from the evidence that the defendant Campbell entered the land in question at one of the local land offices in this State, in the year 1854, and that afterwards, and before any patent issued from the U. S. Government, the plaintiff Garton also entered the same lands, or offered to do so, and contested the right of said defendant to complete and perfect his said entry (for the reason that he, defendant, was at the time a minor, or for any other valid reason) before the Commissioner of the General Land Office of the United States, and that at or upon the trial of said contested matter said Commissioner made and rendered a decision sancelling the entry so made by said Campbell, and authorized plaintiff to enter or perfect his said entry, then such decision and order of said Commissioner was and is final and conclusive upon said parties in regard to said subject matter of said contest.

3. The title in fee to the lands in question remains in the United States till the patent issued; and in this case the patent read upon the trial furnishes the superior evidence of legal title in the plaintiff.

4. The patent read upon the trial is conclusive evidence of the facts that the legal title to the lands in question emanated from the United States, and vested in fee in the plaintiff Edward S. Garton on the 4th day of November, 1857.

5. The certificate of purchase or duplicate offered by defendant in evidence are not of equal dignity with the patent offered by plaintiff, and it is not in the power of the State to declare or make them so.

6. The record and judgment offered by defendant in case of Campbell v. Garton constitutes no bar to this action, and the same are excluded from the consideration of the court in forming its verdict upon the facts in this case.

The court gave the 1st, 3d, 4th, 5th and 6th instructions, and refused to give the 2d; to which the plaintiff excepted.

The court took the case under advisement until the May term, 1864, at which term the defendant Campbell was permitted, against the objections of the plaintiff, to file another amended answer, which answer the plaintiff moved to strike out; and the court took said motion and cause again under advisement from term to term until the May term, 1866, at which time the court overruled the motion to strike out the amended answer, and the court then, on its own motion, gave the following declaration of law, to-wit: “In this case, the court declares the law to be that the patent read in evidence vested the legal title in fee to the plaintiff. But the court further declares the law to be that if the defendant had previously entered the land as set forth in the answer, and the plaintiff afterwards with knowledge of said entry, obtained the patent thereto in the manner and under the circumstances set forth in defendant's answer, then such title so acquired by plaintiff, was and is held in trust for the defendant Campbell.” To the giving of which instruction plaintiff excepted.

Stephens, Draffin, and Hutchinson & Muir, for plaintiff in error.

I. A patent carries the whole legal title to the patentee, and the pre sumption of law is, that all preliminary steps have been complied with and in favor of its validity; and the decision of the Commissioner, in vacating the defendant's entry of the land in controversy, was and is final and conclusive upon the parties to this suit--Hill v. Miller, 36 Mo. 182.

II. A minor who was not the head of a family could not make a legal entry of land under the graduation act of Congress of August 4, 1854.--Att'y General's opinion, July 28, 1855; Lester's Land Laws, 477-8; Circulars of Instruction of Commissioner, Oct. 30, 1854; Lester's Land Laws, 466.

The amendatory act of Congress of March 3, 1857, has nothing to do with this case, as it was passed after the defendant's entry had been annulled and vacated, and after the plaintiff had been permitted to make his entry, and defendant's entry was annulled for evasion of law or special cause.

Hicks and Phillips, for defendants in error.

I. Where the case is one purely of an equitable character, no declarations of law are necessary; and if made, will be disregarded in this court --Conran v. Sellew et al., 28 Mo. 320; Hunter v. Miller et al., 36 Mo. 143.

The answer in this case sets up and insists on an equitable defence, and the finding and decree of the court are of equitable character. If the testimony be sufficient to uphold them, the decree will be affirmed without regard to declarations of law given or refused.

II. The court committed no error in refusing to strike out Campbell's amended answer--R. C. 1855, p. 1253, § 39.

III. The courts of this State have jurisdiction to determine titles to lands lying in the State, in a contest between citizens in this State, although such contest involve the construction of acts of Congress in cases where such acts do not invest the officers of Government with an absolute discretion in determining the rights of parties claiming land. Where titles have emanated and a contest arises, the local courts must ex necessitate rei determine the validity of such titles, and decide upon the legality of the officers' acts-- Perry v. O'Hanlon, 11 Mo. 585, 590-94; Hill v. Miller, 36 Mo. 182.

IV. By the act of Congress of August 4, 1854, defendant Campbell had an unquestionable right to enter the land in controversy at the graduated price-- 10 U. S. Stat. at Large, p. 574. An infant in law is not incapable of making a valid contract for the purchase of land. His contracts, executory or executed, are voidable or confirmable at his election. And after an infant makes a valid contract with the Government and complies with its terms for the purchase of land, no subsequent act of the ministerial officers of Government or of Congress itself can impair the obligation of that contract--Zouch v. Parsons, 3 Burr. 1804; 1 W. Black, 575; 2 Kent's Com. 31; Tucker v. Moreland, 10 Pet. 59, 71; 1 Am. Lea. Cas. 248; Kean v. Boycott, 2 H. Black, 515.

V. The courts of this State will interfere and exercise jurisdiction, 1. When the act in question is plainly fraudulent, or in violation of law; 2. When the act complained of is not within the scope of the ministerial officers' power. And he who induces the officers of the law to do an act not within the scope of their power, and thereby acquires an interest in land which of right belongs to another, holds such interest in trust for that other--Hill v. Miller, 36 Mo. 190; Stoddard v. Chambers, 2 How. 284, 318; 2 Sto. Eq., § 1255 et seq.

VI. The entry of the land in controversy by Campbell on the 25th day of September, 1854, was confirmed by the act of Congress approved March 3, 1857-- 11 U. S. Stat. p. 186. And such...