Gastrell v. Phillips

• Decision Date: 07 March 1887
• Citation: 64 Miss. 473,1 So. 729
• Court: Mississippi Supreme Court
• Parties: H. M. GASTRELL v. GEO. F. PHILLIPS ET AL

1 So. 729

64 Miss. 473

H. M. GASTRELL v. GEO. F. PHILLIPS ET AL

Supreme Court of Mississippi

March 7, 1887

APPEAL from the Circuit Court of Wilkinson County, HON. J. B CHRISMAN, Judge.

Phillips Marshall & Co. brought this action of replevin against H. M Gastrell to recover possession of certain timber alleged to have been cut from the land of the former by the latter.

A motion for a continuance was made by defendant. He filed an affidavit in support of his motion, in which he set out that he could not go to trial safely without the testimony of W H. Gibbs and Jim Hill, by whom he could prove that the land from which the timber was cut was in 1881 held by the State as swamp and overflowed lands; that plaintiffs in 1881 employed these two witnesses to purchase from the State certain of its swamp and overflowed lands; that in order to evade the act of February, 1877, which permitted each person to buy only two hundred and forty acres of such lands, that these witnesses acting for plaintiffs secured persons to sign blank applications for such land, which were afterward filled out by these two agents of plaintiffs and the money was furnished by plaintiffs to purchase the lands, and when patents were issued thereon the respective patentees made quit-claim deeds to plaintiffs, and that in this way plaintiffs acquired the land from which the timber in question was cut. The court below refused to continue the case, on the ground that if the evidence set out were produced it would not be admissible in this action.

On the trial one Brown, for whom subpoenas had been duly issued to both Adams and Wilkinson Counties, failed to appear. It was shown that he had testified in this case at a previous term and on a former trial, and since had removed to Louisiana. Thereupon the court permitted plaintiffs to prove what Brown had testified on the former trial, over the objections of defendant. The verdict and judgment were in favor of the plaintiffs, and the defendant appealed.

Reversed and remanded.

C. P. Neilson and J. H. Jones, for the appellant.

1. It is unquestionable that the facts set forth in the application for a continuance, if true, show that plaintiffs were guilty of a direct and fraudulent violation of a positive law and with full knowledge of what they were doing. The facts do not show an evasion of the spirit of the law but a positive violation of its letter, and it follows, logically, that the patents thus obtained are void for fraud, and could be set aside in a chancery court at the instance of the State.

The question next presents itself whether this defense can be set up at law, and if so can it be set up by defendant in bar of this action?

In the case of the Hibernia T. Corp. v. Henderson, 11 Am. Dec. 596, the court says "a contract cannot be enforced when made in violation of an act of assembly, citing Mitchell v. Smith, 2 Am. Dec. 417, and Maybin v. Conlon, 4 Dall. 298.

It further says such a contract is void ab initio. If void it follows that no action could be founded on such contract.

In a note to the case of Gulick v. Ward, 18 Am. Dec. 403, we find this proposition clearly asserted. It reads "that a contract prohibited by statute, or for the performance of any act forbidden by law, or tending to defeat the general purpose of any statute, is itself void and cannot be the foundation of an action at law is well sustained by authorities." Mitchell v. Smith, 2 Am. Dec. 417; Wilson v. Spencer, 10 Ib. 491; Milne v. Davidson, 16 Ib. 189.

Now, it is clear from the doctrine laid down in these authorities, that the patents issued, and under which plaintiffs claim title, are nullities if the facts set forth in the affidavit be true. Nor can they be made the foundation of any action.

The issuance of a patent is a mere ministerial act, and in issuing one the officers must follow the law strictly, and a patent issued in violation of or without authority of law is null and void. Hibernia T. Corp. v. Henderson, 11 Am. Dec. 597; Hi-Tuk Ho-Mi et al. v. Watts et al., 7 S. & M. 363. Reported in 45 Am. Dec. 308 and note 309.

In Dixon v. Doe Ex Dem. Porter, 23 Miss. 84, the same doctrine is affirmed.

This question may be examined as well at law as in equity. 45 Am. Dec. (7 S. & M.) 308.

The authorities above cited say that a fraudulent patent is absolutely void and cannot be made the foundation of any suit. The language used is very broad, and certainly does not refer only to actions between the original parties to the void contract or to suits for its enforcement.

If a contract can be shown to be absolutely void, a mere nothing, no suit based on it can be maintained, for it confers no rights whatever.

2. The court below was governed in the admission of proof of what Brown had testified in a previous trial by the authority presented by counsel, 1 Greenleaf, 7th ed., § 163, which seems to warrant the admission of such evidence.

An examination of the American authorities cited in note 2 to this paragraph presents a different view from the English rule presented by Greenleaf. The editor says there is "some discrepancy" among the American authorities, and an inspection of those cited will show a large majority against the admission of such evidence.

The rule seems to be confined to the single case where the witness who formerly testified is dead, and any further exception to the general rule as to hearsay evidence is not favored.

Nugent & McWillie, for the appellees.

1. The motion for continuance, if properly supported by affidavit was properly overruled. The facts if proven could not be of any avail to the appellant. It is true that the proviso to the third section of the act of 1877 stipulates "that no person shall be allowed to enter more than two hundred and forty acres" under the provisions of the act, but in this case the lands were entered by several persons in literal accordance with the law. Acts 1877, p. 34. Doubtless the purpose of the act was to secure settlers upon each parcel of land, though it is not so stated. The appellees wanted to buy, and they could only purchase through others. By allowing the use of...