Hiwannee Lumber Co. v. McPhearson

• Decision Date: 21 June 1909
• Docket Number: 14,020
• Court: Mississippi Supreme Court
• Parties: HIAWANNEE LUMBER COMPANY ET AL v. LORENZO D. MCPHEARSON

49 So. 741

95 Miss. 589

HIAWANNEE LUMBER COMPANY ET AL v. LORENZO D. MCPHEARSON

No. 14,020

Supreme Court of Mississippi

June 21, 1909

FROM the circuit court of Wayne county, HON. WILLIAM H. HARDY Judge.

McPhearson appellee, was plaintiff in the court below; the Hiwannee Lumber Company, a corporation, and others, appellants, were defendants there. From a judgment in plaintiff's favor defendants appealed to the supreme court.

McPhearson sued the Hiwannee Lumber Company and others, his declaration containing two counts, one under Code. 1906, § 4976, for the statutory penalty of $ 15 per tree for the alleged cutting by defendants of timber trees on plaintiff's land, while the second count demanded a recovery of the actual value of the trees so cut. The plaintiff offered as evidence of his title to the land only a receipt and a certificate issued to him, upon his application to homestead the land under the United States homestead laws. The same were objected to by defendants because they were not patents or certificates of entry. The testimony showed that McPhearson had never been in possession of the land at the time of the alleged trespasses, the timber being cut in the early springtime of 1907 and plaintiff did not move on the land until June, 1907. The circuit court admitted the receipt and certificate in evidence; they were in these words:--

"Excess Receipt No. 46,823. Receiver's Duplicate Receipt No 41,702. Application No. 41,702. Homestead. Department of the Interior, United States Land Office, Jackson, Mississippi December 20th, 1906. Received of Lorenzo D. McPhearson the sum of fourteen dollars no cents, being the amount of fee and compensation of register and receiver for the entry of S.E. 1/4 of N.W. 1/4, S.W. 1/4 of N.E. 1/4, and N, 1/2 of the S.W. 1/4 of section 13, in township 10, north, of range 7 west, St. Stephens meridian, under section 2290, Revised Statutes of the United States. $ 14.00. 160.16. Thomas V. McAllister, Receiver."

"Department of the Interior, United States Land Office. I hereby certify that the records of this office show that S.E. 1/4 of N.W. 1/4, S.W. 1/4 of N.E. 1/4, and N. 1/2 of S.W. 1/4, Sec. 13, Tp. 10 N., R. 7 W. of St. Stephens meridian, is covered by homestead entry No. 41,702, made December 20th, 1906, by Lorenzo D. McPhearson, and I further certify that said entry is intact. Witness my signature this 31st day of December, 1908. Thomas V. McAllister, Receiver U.S. Land Office, Jackson, Mississippi."

Plaintiff had taken all steps possible under the law in order to homestead the land for which he had made application, and sufficient time had not elapsed for a certificate of entry or patent to issue to him.

Code 1906, § 1959, is as follows: "All certificates issued in pursuance of any act of congress by any board of commissioners, register of any land office, or any other person authorized to issue such certificate, founded on any warrant, order of survey, entry, grant, confirmation, donation, pre-emption, or purchase from the United States of any land in this state, shall vest the full legal title to such land in the person to whom such certificate is granted, his heirs or assigns, so far as to enable the holder thereof to maintain an action thereon, and the same shall be received in evidence as such, saving the paramount rights of other persons."

Affirmed.Affirmed.

D. W. Heidelberg, for appellants.

The plaintiff had no legal title to the land from which the timber was cut; nor had be ever been, up to the time of the cutting of the timber, in possession of the land. In order to maintain an action of trespass for cutting timber a plaintiff must show title to the timber, or that he was in the exclusive possession of the land from which it was cut and exerting a claim of title thereto. Dejarnett v Haynes, 23 Miss. 600; Ware v. Collins, 35 Miss. 223; Gathins v. Miller, 76 Miss. 651; Darrill v. Dodds, 78 Miss. 912.

The certificate or receipt which was issued by the receiver of the United States land office is not evidence of title. It is nothing more than a receipt for money. It is certainly a novel proposition that a person may acquire a title, legal or equitable, to the land of the United States merely by paying a small fee required to be paid at the very incipiency of the effort to acquire title to the land, and this also even before the applicant has ever moved on it and resided any part of the five years required by section 2291 of the United States Statutes, and before making any final proof, as required by said section, and before he himself has any right to cut the timber on the land except for improvements; and that he may thereby acquire such title, too, as will enable him to recover $ 15 for each tree cut by any one else thereafter on the land. The mere statement of such a proposition carries with it its own refutation.

Counsel for appellee rely on Code 1906, § 1959, in support of their contention that the receipt is such title as will enable plaintiff to recover. A sufficient reply to this is that the receipt of the receiver, issued to the plaintiff and introduced as evidence, is not a certificate and does not purport to be. It is nothing more than a receipt for the fee required to be paid as compensation to the register and receiver by all persons who enter land under the homestead laws.

Section 2291 of the United States Statutes, the one immediately following the Federal Statute last cited, provides that "no certificate, however small, shall be given or patent issued therefor" (that is, to persons homesteading lands) "until...