Groom v. Hill

• Decision Date: 31 July 1845
• Citation: 9 Mo. 323
• Parties: GROOM v. HILL.
• Court: Missouri Supreme Court

9 Mo. 323

GROOM

v.HILL.

Supreme Court of Missouri.

July Term, 1845.

ERROR TO MONTGOMERY.

WRIGHT, for Plaintiff. 1. That if the record of former recovery was not good under the issue of nul tiel--yet that it was good evidence under the general issue, and might thus constitute a good defense to the second count, and consequently a good bar to the whole action, since the defendant below was found not guilty under the first count. 2. The motion for a new trial ought to have been sustained--because the bill of exceptions does not state that the plaintiff below, introduced any evidence showing in himself a legal right to the possession of the premises mentioned in either count--but only that “he offered in evidence” a receiver's receipt for the land described in the second count. For aught that appears, it was not actually read as evidence in the cause. 3. But if it were actually introduced and read in evidence, it furnishes no evidence of the legal right of possession in the plaintiff below, to the land described in it. The patent certificate of the register, is the only legal evidence of the purchase from the government, except the patent. 4. The better evidence of title--of legal right to the possession of the premises, was shown to be in the defendant below. He was in possession, and that is good, if I be right in my last position; and if I am wrong in that, he was the first applicant, and as such, was entitled to the land.

CARTY WELLS, for Defendant.

NAPTON, J.

This was an action of ejectment, brought by Hill, the defendant in error, to recover possession of a tract of land in Montgomery county. The declaration contained two counts; in the first, the plaintiff claimed the east half of the northwest quarter of section 32, township 47, range 5, and in the second count, he claimed 40 acres, part of the 80 acre tract in the first count mentioned. The defendant pleaded the general issue, and also the plea of former recovery. To the plea of former recovery, the plaintiff replied nul tiel record. Upon the trial of the issues, the defendant, to support his plea of former recovery, offered in evidence the record of a former suit between the same parties, concerning the 40 acre tract mentioned in the second count of the declaration, which record, as we learn from the bill of exceptions, was rejected, because of variance. Upon the general issue, the plaintiff offered in evidence, the receiver's receipt for the east half of the northwest quarter of section 32, township 47, range 5. The defendant then submitted proof, showing that on the 1st of February, 1833, he sent an agent to St. Louis to enter the 40 acre tract described in the second count of the declaration; that said agent applied to the register to enter said tract, but was informed that it could not be entered, as there was at that time a vacancy in the office of receiver, but that he might leave his money with him until a receiver was appointed This was accordingly done. During the month of August following, hearing of the appointment of a receiver, the defendant again sent his agent to St. Louis for the purpose of entering the land, but it was discovered that plaintiff had in the mean time entered it. The register however, informed the defendant's agent that he would write to the commissioner of the general land office, and have Hill's entry canceled. A correspondence between the said commissioner and the officers at St. Louis, was then read in...