McGrew v. Byrd

• Decision Date: 15 January 1919
• Docket Number: 5105.
• Citation: 255 F. 759
• Parties: McGREW v. BYRD. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

255 F. 759

McGREW v. BYRD. ^[1]

No. 5105.

United States Court of Appeals, Eighth Circuit.

January 15, 1919

John T McKay, of Kennett, Mo., for plaintiff in error.

Robert Burett Oliver, of Cape Girardeau, Mo. (Robert Burett Oliver Jr., and Allen Laws Oliver, both of Cape Girardeau, Mo., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and TRIEBER, District Judge.

TRIEBER District Judge.

The defendant in error instituted an action of ejectment against the plaintiff in error for the possession of 160 acres of land, claiming to be the owner thereof. The answer, in addition to a general denial, claimed title to the lands in controversy as a bona fide purchaser by mesne conveyances under a patent issued by the county of Dunklin, state of Missouri, dated June 22, 1870, to William S. Sugg. There was a trial to a jury, and by direction of the court a verdict for the plaintiff was returned. Proper exceptions were saved to the action of the court in directing a verdict.

As the verdict was by direction of the court, the evidence must be given the strongest probative effect in favor of the unsuccessful party. Evidence was introduced tending to establish the following facts:

It was agreed that Dunklin county was the common source of title; its title emanating from a grant by the United States to the state of Missouri, under the Swamp Land Act of Congress of September 28, 1850 (9 Stat. 519, c. 84 (Comp. St. Secs. 4958-4960)), and the act of the General Assembly of the state of Missouri, entitled 'An act in relation to swamp lands in the counties of New Madrid, Pemiscot, Mississippi, Scott, Cape Girardeau, Stoddard, Wayne, Ripley, Butler and Dunklin,' approved March 1, 1855 (Laws Mo. 1855, p. 154), and amendments thereto enacted in 1857 (Laws Mo. 1856-57, p. 271). By the act of 1855 the clerks of the county courts of those counties, in which the swamp lands granted to the state were lying, were made ex officio registers of swamp lands in their respective counties, and the county treasurers ex officio receivers of public moneys arising from the proceeds of the sales of such swamp lands. When any of said lands were sold, the register was to execute triplicate certificates of the sale, one of which he was to deliver to the purchaser, file one in his office, and transmit the other to the state register of lands at Jefferson City. When the certificate of purchase was presented to the receiver of public moneys and the purchase money paid, he was to issue triplicate receipts, one to be given to the purchaser, one filed in his office, and the other to be transmitted to the state register of lands at Jefferson City, whereupon the Governor was to cause a patent for the lands to be issued to the purchaser. In the county of Dunklin and two other counties named in the act, the county clerks and treasurers were not to act as registers and receivers, respectively, but these officials were to be elected by the qualified voters of each county. By the amendatory act of 1857, the county court of Dunklin county, when satisfied that full payment had been made, was authorized to issue the patent to the purchaser, such patent to be recorded, before delivery, in the office of the clerk of the court issuing it, and copies of such records, duly authenticated were to be received as evidence in all courts as fully as deeds duly proven and acknowledged and recorded in conformity with the recording laws of the state.

It is the settled law of the state of Missouri, as in practically all other states, that in an action of ejectment the plaintiff must recover on the strength of his own title, and not on the weakness of his adversary's title. Large v. Fisher, 49 Mo. 307; Parker v. Cassingham, 130 Mo. 348, 32 S.W. 487; Creech v. Childers, 156 Mo. 338, 56 S.W. 1106; Carter v. Macy, 239 Mo.loc.cit. 524, 144 S.W. 107; Martin v. Kitchen, 195 Mo. 477, 93 S.W. 780.

To establish his title, the plaintiff introduced a certified copy of a certificate from the register of lands of Dunklin county, dated December 27, 1860, which certified that William Pruett had purchased certain lands described, among which the lands in controversy are included, and had made full payment therefor. It was certified as being a true copy, 'as the same appears in Patent Register No. 2, page 20. ' Objection to the introduction of this certified copy was made by the defendant, and, the objection having been overruled, an exception was saved, and this is assigned as one of the errors.

The plaintiff then introduced in evidence the original patent to William Pruett, executed by the presiding judge of the county court of Dunklin county on August 20, 1867. This patent was recorded, before delivery in the office of the county clerk as required by the act of 1857, but was never recorded in the office of the recorder of deeds, as required by the general statute of the state. Objection to the introduction of this deed was made, and, the objection being overruled, an exception was saved. The plaintiff also introduced...