Johnson v. Fluetsch

• Decision Date: 30 June 1903
• Citation: 75 S.W. 1005,176 Mo. 452
• Court: Missouri Supreme Court
• Parties: JOHNSON v. FLUETSCH.

75 S.W. 1005

176 Mo. 452

JOHNSON v. FLUETSCH.

Supreme Court of Missouri, Division No. 2.

June 30, 1903.

PUBLIC LANDS — WARRANTS — ASSIGNMENT — LOCATION BY ASSIGNEE — FAILURE TO RETURN WARRANT TO GENERAL OFFICE — SUBSEQUENT ENTRY BY OTHER PERSON — RIGHTS OF ADVERSE CLAIMANT — NOTICE — STATE COURTS — JURISDICTION — APPEAL — CORRECTION OF ERRORS.

1. Act Cong. Feb. 11, 1847 (9 Stat. 125, c. 8) provides, in section 9, that each noncommissioned officer, etc., who has served or may serve during the present war with Mexico, and who shall receive an honorable discharge, etc., shall be entitled to receive a certificate or warrant from the War Department for the quantity of 160 acres, and which may be located by the warrantee or his heirs at law, and on the return of the certificate or warrant, with evidence of the location thereof, a patent shall be issued. The section further provides that all sales, mortgages, powers, or other instruments of writing going to affect the title or claim to any such bounty right, made or executed prior to the issue of such warrant or certificate, shall be null and void. Held not to prevent the assignment of a certificate or warrant after its issuance, and the assignee may locate the same in his own name.

2. The assignee of a land warrant, who locates the same and secures his certificate of entry or purchase, and, as required by law, delivers up his warrant to the register of the land office, is not responsible for the latter's neglect in failing to report his location to the General Land Office.

3. While the state has no right to control the primary disposition of the public lands belonging to the United States, yet, when the title passes from the government, the state courts have jurisdiction to determine a controversy between adverse claimants thereto.

4. The assignee of a land warrant located the same, and turned it over to the register of the land office at St. Louis and received his certificate of location in 1849. The officers failed to return the warrant to the General Land Office. He and his grantees thereafter had continuous possession of the land for 50 years. In the tract book in the recorder's office in the county in which the land was situated appeared the entry made in 1852, "Located with bounty land Warrant about April, 1849, but the name of the purchaser does not appear on our books," and in the Boonville land office, to which the books of the St. Louis office appear to have been transferred, was the entry, "Vacant. See Commr.'s letter May 22nd, 1867." A certified copy of this letter recited that "a duplicate certificate has been received at this office for a location" purporting to have been made of the land by the assignee of the warrant, and that the land appears vacant on our books, and directed the Boonville office to "permit no entry of any of such tracts, if they appear vacant, until otherwise directed." Starting with the assignee of the warrant, the record of deeds would have shown a straight line of conveyances of the land down to defendant. Plaintiff entered the land in 1898. Held, that he was charged with notice of defendant's rights.

5. In ejectment, where the answer stated an equitable defense and asked affirmative relief, and the judgment, which was in defendant's favor, included 25 acres not sued for by plaintiff and not claimed by defendant, the court on appeal could correct the error without remanding the cause.

Appeal from Circuit Court, Gasconade County; R. Hirzel, Judge.

Ejectment by Wilber T. Johnson against Nicholaus Fluetsch. Judgment for defendant. Plaintiff appeals. Corrected and affirmed.

J. W. Jamison, for appellant. Kiskaddon & Meyer and Robert Walker, for respondent.

GANTT, J.

This is an action of ejectment for the following lands in Gasconade county, in this state: The north half of the southwest quarter of section 3, and west half of lot No. 1 (1) of the northeast quarter, and the east half of lot No. one (1) of the northwest quarter, of said section 3, all in township 44, range 5 west, except 25 acres, described by metes and bounds as follows: Beginning at the northwest corner of said east half of lot 1 of northwest quarter of said section three (3), and running thence east forty (40) chains to the northeast corner of the west one-half of said lot number one (1) of the northeast quarter of said section three (3); thence south 6 chains and 25 links to a stake; west forty (40) chains to a stake; from thence north 6 chains and 25 links to the point of beginning. Ouster is laid as of January 10, 1899. Monthly rents and profits are alleged to be of the value of $15, and damages for detention $200.

The answer is (1) a general denial; (2) that defendant's remote grantor, one John F. Stephan, had entered the lands in controversy at the United States Land Office in St. Louis, Mo., on the 8th day of May, 1849, with a military bounty land warrant, No. 30,960, issued to one Philip Rausch, and by him assigned to said Stephan; that when said entry was made the register of said land office executed and delivered to said Stephan a certificate of such entry; that by mistake or accident the proper officers had failed or neglected to post such entry on the proper books of the said land office, and the land warrant with which the entry was made was, by mistake or accident, lost or not properly returned to the General Land Office; that said Stephan, immediately after said entry, took possession of said real estate, and shortly thereafter, by warranty deed, sold and conveyed said land to one Henry Oschner, and that by several mesne conveyances said land had been conveyed to defendant; that plaintiff, at the time he acquired the legal title to said land by a patent from the government, had notice of the claims and equities of defendant. Prayer, that plaintiff be divested of all title acquired by him by virtue of said patent, and that the title in fee be vested in defendant, and for other proper relief.

This part of the defendant's answer plaintiff sought to have stricken out, but the court overruled his motion.

Reply, a general denial; that at the date of plaintiff's entry of the land said lands appeared by the records of the United States Land Office to be vacant, and that no entry had been made by any one; that said lands are shown to be vacant and subject to entry since the year 1880 by a certified book of original entries from the United States Land Office on file in the office of the recorder of deeds of Gasconade county, Mo., and had so appeared vacant and subject to entry for more than five years prior to the date of the purchase of said lands by plaintiff; that defendant and his grantors had notice that said lands were shown to be vacant by said records of more than 20 years prior to plaintiff's entry, but that they had failed to perfect their title; that because of such failure plaintiff was induced to make his entry, and did so without notice of defendant's alleged claims, etc.

On these pleadings the case went to trial before the judge, a jury being waived.

The evidence of the substantial and material facts in the case is undisputed. About May 8, 1849, one Philip Rausch was the holder of military bounty land warrant No. 30,960, issued to him. John F. Stephan bought this land warrant from him, going before a justice of the peace in St. Louis to have the transfer made in writing and acknowledged. Stephan immediately went to the land office in St. Louis, Mo., and on said last date, with said land warrant, entered the land in controversy. The register of the land office took up the warrant, and issued to Stephan the following certificate:

"Register's Office, St. Louis, Mo., May 8, 1849. Military Land Warrant No. 30,960, in the name of Philip Rausch, has this day been located by John F. Stephan, upon the north half of the southwest quarter, east half of lot No. 1, of the northwest quarter, and west half of lot No. 1 of northeast quarter of section 3, in township 44, of range 5 west, subject to any pre-emption claim which may be filed for said land within thirty days from this date. Contents of tract located 160 acres.

"The date of assignments in all cases must be given at the time they are acknowledged, and no assignment of this certificate will be regarded. Tho. Watson, Register."

Confirmatory of this evidence and certificate is the following: The tract book of lands in Gasconade county, certified to by the register and receiver of the land office at St. Louis, July 19, 1852, in connection with the description of the lands in controversy, contains the following memorandum: "Located with bounty land warrant about April, 1849, but the name of the purchaser does not appear on our books."

Plaintiff attempts to meet this evidence by a subsequent memorandum made October 9, 1880, in red ink, on the same book, by the register and recorder of the Boonville land office, to which the St. Louis land office books seem to have been transferred, as follows: "October 9, 1880 — Erroneous — The tracts appear vacant on the record R. and R."

It further appears rather indefinitely, by the testimony of officers of the Boonville land office, that on the books of the office, in connection with the description of this land, some pencil memorandum had been made and afterwards erased. Within three or four months after the entry of the land by Stephan on May 8, 1849, he went into possession and cleared about two acres. On October 11, 1850, Stephan, by warranty deed, conveyed the land to Henry Oschner. The deed expressly refers to the entry aforesaid, giving the number of the warrant with which it was made, and there is undisputed evidence that the certificate of entry hereinbefore set out was delivered to Oschner with the deed. This deed was filed for record and recorded October 12, 1850.

The other conveyances which transferred the land to defendant were a last will of Henry Oschner, duly probated, and a warranty deed from his devisee to defendant. The...