Hedrick v. Beeler

• Decision Date: 23 May 1892
• Citation: 19 S.W. 492,110 Mo. 91
• Parties: Hedrick, Appellant, v. Beeler
• Court: Missouri Supreme Court

19 S.W. 492

110 Mo. 91

Hedrick, Appellant, v. Beeler

Supreme Court of Missouri, First Division

May 23, 1892

Appeal from Schuyler Circuit Court. -- Hon. Andrew Ellison, Judge.

Affirmed.

A. C Widdicombe and Edward Higbee for appellant.

(1) In order to divest appellant of his legal title, the clearest evidence is required: First. That the respondent, or those claiming under him, applied for and entered the land in controversy, and, second, that appellant had notice thereof at the time of his entry. Applications for the purchase of land were, by the act of twenty-fourth of February, 1810 required to be made in writing, describing the tract sought to be entered, and subscribed to by the applicant. U. S Revised Statutes, sec. 2355; 2 Public Land Laws and Opinions, p. 451. In this case the original application of Robert Mercer to locate warrant, number 35,772, is for land in range 19, and not for the land in controversy. Sensenderfer v. Neale, 66 Mo. 669. (2) The entry of said warrant location of Mercer on any records of the land-office other than on range 19 was without warrant and authority of law, and a nullity. Carman v. Johnson, 29 Mo. 84. (3) The appellant, at the time of his entry, had no notice of the pretended claim of respondent. Sensenderfer v. Smith, 66 Mo. 80; Sensenderfer v. Neale, 66 Mo. 669; Widdicombe v. Mercer, 72 Mo. 588. (4) The essential thing is, that one invoking the aid of a court of equity to reverse the act of the land department should be able to show that he had done all that the law required of him, and that by the record and case, as made in that department, the decision ought to have been made for him. Lytle v. Arkansas, 9 How. 314; Stark v. Starrs, 6 Wall. 402; Bohall v. Dilla, 114 U.S. 47. (5) The patent from the United States, dated July 12, 1886, vested in appellant the legal title to the land sued for. Griffith v. Deerfelt, 17 Mo. 31; Steel v. Smelting Co., 106 U.S. 447. The land in this case was vacant. There was no application to enter or locate it by Robert Mercer, under whom the respondent claims, and nothing whatever upon the records of the land-office to indicate, in any manner, that he had any right to it.

Shelton & Dysart for respondent.

(1) Plaintiff relies on his legal title through his patent of August 11, 1885, and defendant on a prior equitable title through the entry of Robert Mercer on July 30, 1856, of which plaintiff had notice. Plaintiff holds the legal title in trust for defendant, the equitable owner. A legal title acquired for a valuable consideration with knowledge of an outstanding equitable title, or with knowledge of such facts as would put a conscientious, prudent man upon inquiry, is held subject to that equity. 1 Story's Equity [12 Ed.] sec. 395; Bispham's Principles of Equity, sec. 262; Widdicombe v. Childers, 84 Mo. 382; Widdicombe v. Childers, 124 U.S. Co-Ops. 426; Meier v. Blume, 80 Mo. 179; Swisher v. Sensenderfer, 84 Mo. 104; Sensenderfer v. Kemp, 83 Mo. 581; Eck v. Hatcher, 58 Mo. 235. (2) The patent to appellant does not conclude respondent in his equitable rights, after the title has passed from the government, as in this case, and the question has become one of private rights. Equitable interference may be invoked to ascertain whether or not the patentee does not hold, in trust, for the equitable claimant. Johnson v. Townsley, 13 Wall. 72; Minnesota v. Batchelder, 1 Wall. 109; Silver v. Ladd, 7 Wall. 219; Stark v. Star, 6 Wall. 402; Carman v. Johnson, 29 Mo. 84; Widdicombe v. Childers, 84 Mo. 382; Widdicombe v. Childers, 124 U.S. 427; Sensenderfer v. Kemp, 83 Mo. 581. (3) Notice consists of direct information of a fact brought home to a party, or knowledge of such facts as would put a conscientious, prudent man upon inquiry, or it may be constructive by record. Bispham's Principles of Equity, sec. 268; 1 Story's Equity [12 Ed.] sec. 395, et seq.; Widdicombe v. Childers, 84 Mo. 382; Widdicombe v. Childers, 124 U.S. 427; Sensenderfer v. Kemp, 83 Mo. 581; Eck v. Hatcher, 58 Mo. 235.

OPINION

Sherwood, P. J.

Action of ejectment in usual form commenced April 13, 1887, to recover possession of northeast quarter, southwest quarter, section 36, township 66, range 16, in Schuyler county. The trial was upon an answer setting up an equitable defense, and asking affirmative relief, alleging, in substance, that on July 30, 1856, one Robert Mercer "intended to enter, applied for, and, in fact, did enter," at the land-office at Milan, Missouri, the lands sued for, with land warrant number 35,772, act of March 3, 1855; that, by mistake of the register of the land-office at Milan, said entry was posted on the tract book of said register's office erroneously describing the land as being in range 19, instead of range 16, as it was, in fact, and should have been posted, and that plaintiff, with knowledge of these facts, entered said land and obtained a patent therefor.

Upon the trial plaintiff introduced in evidence a patent from the United States granting to himself the north one-half, southwest quarter, of section 36, township 66, range 16, dated July 12, 1886, in Schuyler county.

Upon the equitable defense and in rebuttal thereof the following facts were shown: Leland Wright, register of the land-office at Boonville, testified, in substance that he had in his custody the plat books and tract books of what was once the Milan district land-office. The plat book shows the name "Mercer" written across the face of the north half of the southwest quarter, section 36, township 66, range 16, and just over the word Mercer, on the same tract, there appears a dim mark which looks as though it might be intended for the word canceled.

The tract book shows the north one-half, southwest quarter, section 36, township 66, range 16, entered by Robert Mercer, assignee of Harriet Smith, July 30, 1856, by military land warrant number 35,772; there is, at an irregular place marked on the page of this entry, the words, "canceled May 4, 1861," also, in red ink, the words, "erroneously posted, see range 19." The tract book also shows that the north one-half of southwest quarter of section 36, township 66, range 19, was entered by Robert Mercer, July 30, 1856, by same land warrant number 35,772. This entry is also marked as canceled May 4, 1861, "warrant returned to general land-office July 8, 1885." The tract book also shows that the northwest quarter of the southwest quarter of section 36, township 66, range 19, was entered by Michael H. Herbert, by military land warrant, and the name Herbert is written across this tract on the plat book. The custom of the offices at the time these entries were made was, in case of warrant entries, to put the name of the purchaser across the tract entered on the plat book, and to post in the tract book from this memorandum. At that time, when applications were made for vacant land, the register would go to the plat book as his guide as to what lands were vacant, and was governed by the notations appearing in the same. Nine-tenths of the applications were written by the register, and then signed by the applicant. The tract book also shows that north one-half, southwest quarter, section 36, township 66, range 16, was entered by Robert G. Hedrick August 11, 1886.

Robert Mercer testified that he came from Indiana to Missouri in 1856, and entered at the land-office at Milan the north one-half, southwest quarter, section 36, township 66, range 16; entered the land in person with land warrant, and never had notice that the entry had been changed or canceled. The warrant had never been returned to him.

Mercer sold, and by deed of general warranty conveyed, the land to George Foster April 16, 1863, and under mesne conveyances from him, defendant claims. The defendant had been in the actual possession of the land since 1879, and was never advised of an adverse claim until about the time this suit was commenced. Some official correspondence with the land department at Washington City was had in evidence. From this correspondence the following additional facts were developed. Mercer's land warrant 35,772 was returned to the register and receiver at Boonville by letter of commissioner of general land-office dated May 4, 1861, with directions to notify Mercer that his entry in section 36, township 66, range 19, had been canceled, and that warrant would be returned on surrender of certificate of location. A written application was made by Mercer July 30, 1856, to locate said warrant number 35,772 on north one-half, southwest quarter of section 36, township 66, range 19, instead of 16. Nothing in the office at Washington showed the location to have been in range 16.

Plaintiff made application to enter north one-half, southwest quarter of section 36, township 66, range 16, July 20, 1886. Patent issued August 16, 1886, and transmitted to A. C. Widdicombe, Boonville, Missouri, who acknowledged receipt August 24, 1886.

It was shown that Mr. A. C. Widdicombe had resided at Boonville for about twenty-five years, and was a sharp, shrewd land lawyer, was perfectly familiar with the land-office records, and was an expert in the business of the office; and had had a great deal to do in contested land cases growing out of conflicting entries in that and other land-offices.

The case was tried in the court without a jury, and the finding and judgment were for defendant and plaintiff appealed.

I. The equitable principles which govern...