Groves' Heirs v. Fulsome

• Citation: 16 Mo. 543
• Parties: GROVES' HEIRS, Appellants, v. FULSOME et al., Respondents.
• Decision Date: 31 July 1852
• Court: Missouri Supreme Court

16 Mo. 543

GROVES' HEIRS, Appellants,

v.FULSOME et al., Respondents.

Supreme Court of Missouri.

July Term, 1852.

1. A. entered a tract or land, and finding the wife of B. in possession without any claim of pre-emption, paid her for yielding up possession to him. Subsequently, she obtained a patent for the land from the government, under color of a right of pre-emption. Held, she holds the title thus acquired, as a trustee for the benefit of A.

2. A married woman, whose husband is alive and has sold the improvements to another, under whom she s in possession, has no right of pre-emption, under the act of Congress of May 29th, 1830, or any of the acts supplementary thereto.

3. Although the state courts cannot interfere with the primary disposition of the soil by the general government, yet, if one obtains from the United States the legal title to a tract of land, and in so doing is guilty of a fraud towards another, or affects himself with a trust, he shall hold the title thus acquired for the benefit of those who have been injured by his conduct.

4. Frauds and trusts are not within the statute of frauds.

5. If a bill of chancery contains no equity, it should be demurred to; if it is allowed to stand, evidence should be admitted to sustain it.

Appeal from Crawford Circuit Court.

The facts are sufficiently stated in the opinion of the court.

Johnson, for appellants.

The evidence offered by the complainant, and excluded by the Circuit Court, proved every allegation in the bill and more, and came from competent witnesses. It was, therefore, relevant and competent.

If the bill did not present an equitable case, the defendants should have demurred. This they did not do, but answered, virtually admitting the equity, and relying on facts to repel it.

Groves had a right to enter the land. Fulsome, the husband, had no right of pre-emption at the time. He had previously abandoned the possession and pledged the improvements to Benton, and Benton had sold them at public sale. Improvements constitute the only foundation for a pre-emption or preference in the purchase of public land. A party abandons his claim to a pre-emption by selling his improvements. Bird v. Ward & Cravens, 1 Mo. Rep. 398. If the husband had abandoned his right of pre-emption by selling his improvements in 1835, there could not remain a right of pre-emption in his wife in February, 1835, he living at the time. It is not pretended that Mrs. Fulsome sold her right of pre-emption to Groves. She had none to sell, even if she could have sold it. She merely sold, and he bought her improvements. He could have ejected her at any time after he purchased the land. He did not choose to avail himself of his legal rights, but extended a gratuity to her, and paid her own price for the labor she had expended in making the improvements. She then turned around, and without notice to Groves, entered the land in part with the very money received on the sale of her improvements, and received a patent from the government. This conduct was a fraud. Fraud is defined to be any unfair way by which another is cheated or overreached. 3 Atk. Rep. 757; Tucker's Com. 2 vol. 418.

In Huntsucker v. Clark, 12 Mo. 337, it was held, that “if a pre-emption right, under the laws of the United States, is secured by the fraudulent practices either of the party himself or the officers of the general government, a court of equity will afford redress to the person injured.”“Such interference does not proceed upon any assumption of a right on the part of the courts to revise the determination of the Federal officers, but is based upon an undisputed jurisdiction incident to all courts of equity over the subject of trusts and frauds. Federal officers have no judicial power, and such questions must be left to our judicial tribunals, and their determination does not involve any interference with the primary disposal of the soil.” The difficulty suggested in the case of Lewis v. Lewis, 9 Mo. 183, of a premature interference by the courts, does not exist in this case, because a patent has issued, as admitted by defendants in their answer.

The case of Stephenson v. Smith, 7 Mo. Rep. 910, shows that a court of equity will require a party who procures a patent from the general government by fraud, to convey to him who is equitably entitled.

Sales of improvements on public lands are not within the statute of frauds. Clark v. Schultz, 4 Mo. 235; Huntsucker v. Clark, 12 Mo. 337.

Frissell, for respondents.

The Circuit Court did not err in excluding the evidence offered by the plaintiff, tending to show a sale of her pre-emption right by Mrs. Fulsome, because: 1. A pre-emption right to United States land, since the act of Congress of May 29th, 1830, is a personal privilege, and the act makes all sales void prior to the issuing of final receipts or certificates. Act of May 29th, 1830, sec. 3, last clause; act of January 23d, 1832. Huntsucker v. Clark, 12 Mo. 336. 2. The evidence was parol. A pre-emption is such an interest in lands that a parol contract in reference to it is void under the statute of frauds.

Groves ought not to complain of Mrs. Fulsome for taking his money and then claiming her right of pre-emption, for he had in the first place acted fraudulently and oppressively towards her, by entering her out of house and home, when he was compelled to swear, before he could make the entry, that there were no improvements on the land except his own. Laws, Opinions, Instructions, etc., part 2d, 545.

Admitting that Mrs. Fulsome had practiced a fraud upon Groves, of which he could complain in a court of equity, yet Jesse Fulsome was really an innocent purchaser.

SCOTT, Judge, delivered the opinion of the court.

This was a suit in chancery, begun by Ezekiel Groves (who, dying, was replaced by his heirs), against Jesse Fulsome, John Propste and others. The bill states that in May, 1836, E. Groves entered the tract of land which is the subject of this controversy, containing eighty acres, at the land office, in the Jackson district. In February, 1837, Groves agreed to convey the land to E. Wilson, and bound himself in a penalty to make a title on or before the 1st March, 1840. At the date of this agreement, Susannah Fulsome lived on the land, which had some improvements upon it. Groves and Wilson, wishing to avoid difficulties, and being unwilling to take the land without paying for the improvements, proposed to Mrs. Fulsome to give her fifty dollars for her improvements, or the sum at which they should be valued by two disinterested men. She preferred the first branch of the proposition, received the sum offered, and voluntarily yielded possession to Wilson. During the latter part of the year 1837, Mrs. Fulsome made application to prove a right of pre-emption to the land, and Groves was notified to attend, which he accordingly did, but the matter was postponed indefinitely, and afterwards, in February, 1838, without any notice to him, Mrs....