Hunter v. Hemphill

• Decision Date: 31 October 1839
• Parties: HUNTER v. HEMPHILL.
• Court: Missouri Supreme Court

6 Mo. 106

HUNTER

v.HEMPHILL.

Supreme Court of Missouri.

October Term, 1839.

ERROR TO PIKE CIRCUIT COURT.

WRIGHT, for Plaintiff. 1st. That there is not in the record any evidence of the locality of the claim, nor that it embraced the land in question. 2nd. The laying down that claim on the register's map, was not warranted by any law, and was an unauthorized deforcement of the plat. 3rd. The claim as laid down in the map, does not in fact embrace all the land in question. 4th.

If Dubruiel's claim were of that class intended to be reserved from sale by the acts of Congress, the reservation would be inoperative for want of location. 5th. But Dubruiel's claim had ceased to exist and the land had become subject to general disposition as other lands a year and more before Hunter's entry. Act of Congress, 26th May, 1824; do. 24th May, 1828; Rev. Code, p. 234, § 2; 5 Bacon, 207-8; 3 Burr. 1259; 6 Peters' R. 691; 7 Peters' R. and 12 Peters.

CAMPBELL & WELLS, for Defendant. 1st. That to constitute a sale by the register and receiver legal, these circumstances must exist. 1st. There must be public sale. 2nd. That land must be liable to entry by law. 3rd. There must be public officers authorized to sell. 4th. These officers must actually make a sale. The receiver is a public officer and whenever he does an act within the general scope of his power, the law will presume the existence of all the facts necessary to render his act valid. 3 Starkie's Ev. 125. But this is only a legal presumption and may be rebutted by evidence. 3 Starkie's Evidence, 1252.2nd. Does an entry with the register and receiver of land not offered at public sale vest a title in the purchaser? The act of Congress establishing the land office at Palmyra permitted the sale by register and receiver of such land only as had been offered at public sale at St. Louis and had not been reserved from sale. See 1 Land Laws, p. 194, § 10; p. 294, § 3; p. 384, §§ 2, 3; 2 Land Laws, p. 25. Wirt's opinion. 3rd. The third point is in all respects governed by the same laws and principles as the second. 4th. Can the register lawfully delegate his authority? It is a general rule that a power given, the execution of which requires skill, or which implies personal trust or confidence must be executed by the agent or officer in person. See Paley on Agency, 148-9. Vesey, jr. 251-2, 236.

NAPTON, J.

Hunter brought an action of ejectment against Hemphill in the Circuit Court of Pike county, to which defendant pleaded not guilty. In support of his title the plaintiff relied on two certificates of purchase made by the receiver of the land office at Palmyra, the first being for the east half of the southeast quarter of section No. 8, T. 53, R. No. 1, containing 80 acres, and the second for the west half of the southeast quarter of the same section. The defendant admitted the possession of the land as charged in the declaration, and the plaintiff closed his testimony. The defendant then introduced a copy from the register's office at Palmyra of the map or plat of range 1 & 2 west, township 53 & 54, on which map is the land in controversy. William Wright, the register of the land office, testified that he entered upon the discharge of the duties of his office 29th of July, 1830, that on the plat aforesaid, Dubruiel's claim was marked in a faint pencil mark which was on the book when he entered the office, and that he had no knowledge of the time when and by whom the pencil marks were made; that he was not present when the entry was made by the plaintiff, having entrusted the business of his office for some time to Mr. Green, with whom he left blank certificates of application signed by him (the register); that it was usual for Mr. Green and himself to discharge the duties of both offices in the temporary absence of either; that they mutually deputed each other as agents for this purpose and left blanks signed by them respectively. Mr. Wright further stated, that if he had been present, he could not have permitted the entry of plaintiff, because the land was included within the pencil lines, and he considered it reserved from sale, from that fact; that he does not know that the land in controversy has been offered for sale publicly; that he never offered it for sale, and had frequently refused to permit persons to enter the lands included within the pencil lines because he considered them reserved from sale.

Mr. Jordan testified that in 1818, in company with others, he went to the land sales in St. Louis; that the claim of Dubruiel was not then laid down; that the lands in range 2 were offered for sale and many pre-emptions were offered within the lines of Dubruiel's claim as afterwards laid down; that defendant had not been long enough on his land to be entitled to a pre-emption; that in January or February 1819 he again attended the land sales at St. Louis and while there he saw a man, whose name he thinks was Barcroft, marking down on the book of the register a claim which the register told him was Dubruiel's claim; that the marks were made with a pencil; that after that he saw but one piece of land sold in the limits of said claim, and that was a piece bought by a Mr. Byers only a part of which lay in the claim, the purchaser (Byers) agreeing to lose that part lying within the claim, if it should be confirmed; that he never saw the land in controversy offered at public sale, either at that place or Palmyra; that he knew of only one sale of any land within the claim and that was a case of relinquished lands sold by Carson, the former register at Palmyra. Hemphill the defendant came to the country in 1816 or 1817 and has been in possession of the land in controversy ever since. He also went to St. Louis in 1819 for the purpose of buying the land not offered for sale. It was proved by several other witnesses, three or four in number, that they were at the land sales in St. Louis in 1819, and that they did not see the land in controversy offered for public sale; that they understood the lands included in the claim were not offered for sale in consequence of the laying down of Dubruiel's claim; Mr. Byers saw the claim as laid down on the books at St. Louis in 1819, and at his solicitation the register set up his piece for sale, and he bought it, under the circumstances mentioned by Jordan. It was proved by a Mr. Smith that he had applied to enter at the Palmyra office a piece of land within the claim, and the register refused to let him have it; (Mr. Wright, register). He also stated on one occasion, time not mentioned, he went to enter for himself a tract in the claim, and was requested by defendant to enter the land in controversy but on being informed by the register, Mr. Wright, that he (Smith) could not enter his land, because it was within the claim as marked on the book, he made no application for it because his land was in the same situation.

On the part of the plaintiff, it was proved by Henry, that he entered the land marked on the copy of the map at the time recorded on it. On inspection of the map Mr. Henry's entry is in range 1, township 53, and is the cast half of the northeast quarter of section 8, and within the pencil marks designating Dubruiel's claim. Carson was register and Lane receiver. Carson was not present, but his deputy Jones received the application. Witness told Jones the land was said to be in the claim of Dubruiel. Mr. Fitzhugh's entry was a pre-emption right; his application was to Mr. Wright. From an inspection of the plat it seems, that Mr. Fitzhugh entered in range 1, two pieces, one on the 21st December, 1830, and the other on the 28th May, 1831, being the southwest quarter of section 6, in township 56, range aforesaid, and within the pencil marks supposed to designate Dubruiel's claim. Mr. Bennett entered a half quarter section in range 2 and within the pencil marks, by application to Mr. Wright, the register, which was for pre-emption. Mr. Allison entered three tracts, of 80 acres each, parts of all the tracts lying within the pencil marks designating Dubruiel's claim, in range 1, in 1827, and the other two pieces in 1835; Wright was the register, and application made to him. Mr. Templeton, another witness, testified that he bought the east half of the northwest quarter, of section 5, township 52, range 1, west, on the 1st August, 1831, at public sale; gave more than the minimum price for his land, and obtained a patent for his land in about six months thereafter. This entry is also within the claim of Dubruiel, as laid down on the map. Mr. Wright was the register at the time, and the sale was made by him. Mr. Templeton stated that his piece was formerly claimed by pre-emption and perfected, and thereupon sold, some said it was relinquished. Other witnesses testified in relation to their entries as marked on the plat.

On this state of facts, as appears by the bill of exceptions, the defendant moved the court to instruct the jury: 1st. That if they shall believe from the evidence, that the entry of the defendant of the land in controversy, made in the absence of the register of the land office, by mistake of the person having charge of the register's office, and that the said land had never, at the time of said entry, been offered for sale at public auction, then the said entry of said plaintiff does not invest him with such a title as will enable him to recover of the defendant in this action. 2nd. That if they shall believe from the evidence, that the land in controversy had not (at the time of the plaintiff's entry) been offered for sale at public auction, but had been reserved from sale by the register and receiver, that, in that case, the plaintiff's title under said entry is not sufficient to enable him to recover of the defendant in this action. 3rd. That if they shall believe from the evidence that the land in controversy had, up to the time of the plaintiff's entry, been reserved from sale, on account of said land, or a part thereof,...