De Lashment v. McClelland

• Decision Date: 19 November 1928
• Docket Number: 27408
• Citation: 118 So. 904,152 Miss. 781
• Court: Mississippi Supreme Court
• Parties: DE LASHMENT v. MCCLELLAND et al. [*]

118 So. 904

152 Miss. 781

DE LASHMENT v. MCCLELLAND et al. ^[*]

No. 27408

Supreme Court of Mississippi

November 19, 1928

Division B

Suggestion of Error Overruled Dec. 3, 1928, APPEAL from chancery court of Jackson county, HON. V. A. GRIFFITH Chancellor.

Two separate suits by T. L. De Lashment against H. H. McClelland and others, consolidated and tried together. Decree of dismissal, and complainant appeals. Affirmed.

Judgment affirmed.

H. P. Heidelberg, for appellant.

The assignment of errors has two grounds, to-wit: First, that the court below erred in overruling the appellant's objection to a part of the evidence of appellees and second that the court below erred in dismissing the bills of complaint and refusing to grant appellant any relief whatever.

In the discussion of the cases we will consider the assignments of error as treated together and will take up and consider the cases from the standpoint of the law as we believe controls the cases, first from the standpoint of the Federal statutes and second as to the effect of the recording statutes of the state of Mississippi, that is to say whether or not the appellant stands in the position of an innocent purchaser for a valuable consideration without notice either actual or constructive.

In the beginning we did not take it that appellees contend or will contend that the state courts in proper cases do not have the power and authority to set aside or annul a patent from the United States Government for lands. We believe this principle is too well understood and too well known and recognized to require citation of authorities. 32 Cyc. 1052-1054; Hester v. Kembrough, 12 S. & M. 659; Moyer v McCullough, 1 Ind. 329; U. S. v. Detroit Timber Co., 200 U.S. 321, 50 L.Ed. 499; Doe v. Watts, 7 S. & M. 363.

The appellant's relying and acting upon a certified transcript from the United States land office, showing the lands involved herein to be at the date of his purchase and for more than sixty-two years before that time as segregated from the public domain; that the same had not been subject of entry since July 5, 1853, purchased said land upon the faith, strength and credit of a certificate from the proper land office and the only thing lacking in so far as the records showed was the obtaining and recording in the land deed records of Jackson county, the original or certified copy of the patent as called for in said entry and then appellant would have been vested with a full, complete and perfect legal and equitable title to the land. Under the condition that the record title to this land showed to be, we submit that appellant was in the position of: "One who has done everything which is necessary in order to entitle him to receive a patent for public land, has even before the patent is actually issued by the land department, the complete equitable estate in the land which he can sell and convey or mortgage same." Meyers v. Croft, 13 Wall. 291, 20 L.Ed. 562; Marks v. Dixon, 50 How. 501, 15 L.Ed. 1002.

Appellant had a right to rely upon the United States land office records and it appearing that under the entry in question as shown by the certificate of the United States land office official that the entry was valid, lawful and intact and the only thing necessary was to apply for and procure the patent, was surely within his rights in purchasing the land upon the strength, faith and credit of the United States land office records, these imports ceriety and are to be relied upon and after the right of the patent was complete and whether issued or not appellant brought himself within and the rule in some respects is analogous to the situation and principle in Dale v. Griffith, 93 Miss. 573, 46 So. 543. See Gragg v. Cooper, 150 Cal. 584, 89 P. 346; Godwin v. McCabe, 75 Cal. 584, 17 P. 705; Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; Hewling v. Blake, 110 Miss. 225, 70 So. 247; Dees w. Kingmon, 119 Miss. 119, 80 So. 528; Teddlie v. McNeely, 29 So. 247; Wirth v. Branson, 25 L.Ed. 86; Widdescombe v. Childers, 31 L. Ed., 427; Hendricks v. A. T. T. & R. R. Co., 42 L.Ed. 320; Godkin v. Cohn, 25. C. C. A. 557; Stark v. Starr, 18 L.Ed. 925; LeMarchel v. Teagarden, 152 F. 662; Graham v. Great Fall Water & Power Townsite Co., 30 Mont. 393, 66 P. 808.

All of these cases show that there must be a carefully prescribed course followed in order to invalidate and set aside an apparent valid first entry and that it cannot be done by a mere stroke of the pen. But in the case at bar there was never even a pretended cancellation made but simply the word "error" written across the entry when in the land office officials at Jackson had exercised the smallest degree of inquiry as they were required to do before allowing another entry upon the land in question they would have ascertained the fact that suit No. 3066 on the docket of the chancery court was then pending wherein Brannon was contesting his rights to the land with the heirs of one of the three parties, who the Tract Book showed had obtained title from the United States Government. So, we submit that the entry of July 5, 1853, was never cancelled and so far as the records that were on file in the Jackson, Mississippi, land office (and under the Federal statute, the records of the office prevailed until changed or corrected in the manner prescribed by statute) so said entry existed until that office was closed some three years ago and its records removed to the General Land Office at Washington. Young v. Hanson, 96 Ia. 717, 64 N.W. 654; Peyton v. Desmond, 129 F. 1, 63 C. C. A. 651; Risdon v. Davenport, 4 S.D. 555, 57 N.W. 482; Louis v. Shaw, 57 F. 516; Durango v. Evans, 80 F. 425, 25 C. C. A. 523; United States v. Detroit Timber Co., 200 U.S. 321, 50 L.Ed. 499; Guaranty Savings Bank v. Bladow, 176 U.S. 448, 44 L.Ed. 540; Parsons v. Venzke, 164 U.S. 89, 41 L.Ed. 360; Puget v. Brown, 7 C. C. A. 643; Martinson v. Marzolf, 15 N.D. 471, 108 N.W. 801; Harmon v. Clifton, 51 Ia. 36, 50 N.W. 541; Wilhite v. Barr, 67 Mo. 284; Duluth R. R. Co. v. Roy, 173 U.S. 587, 43 L.Ed. 820; Starke v. Mather, Walk. 181 (Miss.), affirmed 7 L.Ed. 67; Ard v. Brandon, 156 U.S. 527, 39 L.Ed. 524; Germania Iron Co. v. James, 32 C. C. A. 348; Lindsey v. Hawes, 2 Black 554, 17 L. Ed., 265.

Under the Federal statute a certificate of the register or receiver of any land office is evidence of the entry of land in his district. There are a number of cases announcing this doctrine but in our opinion the clearest and most concise of the rule is found in Gaut v. Galloway, 4 Petterman 332, 7 L.Ed. 876.

S. A. Witherspoon and H. H. McClelland, for appellee.

The answers of appellees deny that any title passed out of the Government until 1920. Here the issue is clear and unequivocal. The proof shows there was no disposition of the land other than to the patentees in 1920. The Hawthornes and Goode did not enter said land, but they filed their Choctaw scrip on an entirely different tract of land. A clerical error could not rise to the dignity of an entry. There must be an affirmative act on the part of the entrymen and an application filed in the land office to locate on a specific tract of land.

Standing alone the certificate of the register of the Mississippi Land Office, filed in the office of the chancery clerk of Jackson county would be prima-facie evidence of an entry of the land by the Hawthornes and Goode, but when taken in connection with all the facts, abundant facts, showing the circumstances surrounding the application filed by them for location of Choctaw scrip No. 465, it stands out clearly, unequivocally and undisputable that there was no entry of said Choctaw scrip on the land in suit. There was no entry, nor was there any intention to make such entry, either by the said Hawthornes and Goode or by the clerk or officer who actually entered the clerical mistake shown. It was a mere error in posting; the correct entry being also made. This error did not appear in the records of the General Land Office at Washington. There then appeared the correct history of the filing and location of this scrip No. 465 by the Hawthornes and Goode.

There is no evidence, binding on these appellees, that there were any acts of ownership by appellant and his alleged predecessors in title other than that certain deeds had been executed; that there had been intermittent failures to pay taxes, giving rise to sales for taxes, and that suits to quiet titled had been filed. The allegations of the bill allege what might be termed a scrambling possession of wild lands. (Construing the pleading most strongly against the pleader.)

There was no proof offered (and it would have been irrelevant) that any one was ever in possession of the land, other than of course the presumption arising in favor of appellee McClelland and Mr. Bizzelle's possession. (Irrelevant, for time does not run against the sovereign.) There could be no adverse possession against the United States. The decree in the suit of L. I. Brannon recites that the said Brannon had been in adverse possession for ten years, but this is a mere ex parte proceeding. The United States was not and could not have been made a party thereto (and the appellees claim through the United States subsequent to such suit), and the recitals in the decree in that case as to adverse possession could have no probative value for the purposes of appellant's untenable theory about prescription, even though it could be urged against the title in the United States. See Rabb v. Board of Supervisors, 62 Miss. 589; Bates v. Aven, 60 Miss. 955; Clements v. Anderson et al., 46 Miss. 599.

In Caruth v. Gilliespie, 109 Miss. 679, cited by appellant the facts were strongly indicative of a grant or title by the state of Mississippi, affirmative acts on...