Perry v. O'Hanlon

• Decision Date: 31 July 1848
• Citation: 11 Mo. 585
• Parties: PERRY v. O'HANLON.
• Court: Missouri Supreme Court

11 Mo. 585

PERRY

v.O'HANLON.

Supreme Court of Missouri.

July Term, 1848.

GARLAND, for Appellant.

1. The declaration in this case was filed the 19th February, 1840. On the 9th March following, the defendants filed their pleas, and issue was joined. The pre-emption law under which the defendants made their entry and obtained the patents set up in their defense in this action, was not passed until 1841. The counsel for the appellant contends, that laws and facts which have come into existence since the pleadings in this case have been closed and the issue made up between the parties, cannot be permitted to influence it, nor introduced as evidence. Ex post facto laws are odious and unconstitutional-- re-troactive laws are no less so. 13 Mass. R. 472.

2. If in the judgment of the court the facts have been supplied, which prove that the certificate bearing date 26th November, 1839, several years after the expiration of the act of 1832, under which it purports to have been issued, was notwithstanding the date thereof, lawfully issued, they will not look behind the certificate, but regard it as in all similar cases, prima facie [evidence] of title; having been issued by authority of the commissioner, the court presumes it to have been lawfully done.

3. The certificate of the receiver is prima facie evidence of an entry having been made--but is not the entry itself--the certificate may be defective or void, but the entry is wholly a different thing, and whether there has been an entry or not, in the meaning of the statute, depends on the facts and circumstances of each case as it arises. There can be no general rule, or procustes-bed to force them into the same measurement.

4. This is a contract between Perry and the government, based on terms proposed by the latter in the proviso of the act of 1832, and accepted by Perry--Perry has fulfilled, or offered to fulfil, all the terms of the contract on his part--the government has failed to comply with her part of the agreement. It is not in the power of one of the contracting parties by his own acts, or the acts of his agent, to destroy the obligation of the contract; much less is it in the power of the government to pass a law taking away from a citizen, rights which had accrued to him under a previous law. Ott v. Soulard, 9 Mo. R. 760; Fletcher v. Peck, 2 Cond. U. S. R. 308.

5. If the entry made the 1st September, 1834, be regarded as not sufficient within the meaning of the statute, the deed of relinquishment is still good; the rights accruing therefrom cannot be avoided by the government--the only claim they have to the land is the conveyance in that deed--without it Perry would be protected by the acts of 1811 and 1818, reserving from sale all lands for which a claim had been filed in the office of the recorder of land titles. Claiming under the deed, the government must comply with the terms on which they have obtained it--that is, they must re-convey to Perry, on the payment of $1 25 per acre--he has a pre-emption right to the land--the deed is his evidence--the government can give title to no other person, and this court must protect him in that right. 9 Mo. R. 760.

6. If the deed of relinquishment and all the proceedings under it, of the entry made in 1834, and the certificate of entry made in 1839, be all void, then Perry is thrown back upon his rights existing before he attempted to procure the land as a pre-emptor, under the proviso of the third section of the act of 1832. He will then stand as the legal representative of Basil Valle, claiming the land which has been reserved from sale by the acts of 1811 and 1818 to fill that claim. The board of commissioners under the act of 1832 and the supplement of 1833, took testimony to prove inhabitation, cultivation, &c., and the same was spread on the record December 3rd, 1833. The board took no further action in the case--they neither placed it in the one or other class required by law--there has been no report of it made to Congress, nor has there been any final action of Congress thereon. It is still, therefore, a reserved claim. The commissioner of the general land-office, when he canceled Perry's certificate in 1843, and sought thereby to nullify all the acts done under the proviso of the 3rd section of the act of 1832, declared that the land was still reserved under the acts of 1811 and 1818, to fill Perry's claim, and that the parties setting up a claim could not be permitted to enter. The court below therefore erred in refusing testimony to prove that Perry, as the legal representative of Basil Valle, had a right to the land reserved to fill Valle's claim.

7. The patent in this case was issued for land never offered at public sale-- not subject to private entry, and reserved from sale until the final action of Congress. Moreover, the law of September 1st, 1841, under which the defendants made their entry, declares that “no lands included in any reservation by any treaty, law or proclamation of the President of the United States, shall be liable to entry under or by virtue of the provisions of this act.” The patent, therefore, is void. Stoddard's Heirs, 3 Howard; Allison v. Hunter, 9 Mo. R. 765; DeArmas v. Mayor et al. 5 La. R. 177.

LEONARD, for Appellee. The only title relied on by Perry is the entry under the pre-emption clause of the act of 9th July, 1832. To his title, the answer is--1st. The entry was canceled by the executive department of the government on account of its having been made by one who was not an actual settler and housekeeper on the land inclosed; and being canceled, is void from the beginning and never conferred any right upon plaintiff to recover the land. Act of May 18, 1796, Land Laws, 50; amendatory act thereto of May 10, 1800, Land Laws, 70; act 2nd March, 1805, Land Laws, 127; act 25th April, 1812, Land Laws, 211; act 17th February. 1818, Land Laws, 293: act 9th July, 1832, and of 2nd March, 1833, Land Laws, 505 and 519; act 4th July, 1836, Land Laws, 552. 2nd. The patents given in evidence constitute such a title in one of the defendants to part, and in a third person to the residue of the land, as is superior at law to the title of the plaintiff, even if the entry be considered a lawful and subsisting entry.

NAPTON, J.

This was an action of ejectment brought by Perry to recover a tract of land in Washington county. The suit was first tried in 1841, when Perry obtained a judgment, from which the O'Hanlon's appealed. The judgment was reversed by this court in 1846, 9 Mo. R. 810, because the entry of Perry, on its face, purported to have been made under the pre-emption clause of the act of Congress of July 9, 1832, and was made on the 26th November, 1839, long after the expiration of the law and the time allowed by it for such entries. On the second trial, which took place in 1847, the title of Perry was as follows:

In 1807 Perry as assignee of Basil Valle, filed his claim with the recorder of land titles, for 639 acres of land at Mine a Breton. This claim was rejected by the first board of commissioners. A portion of the land embraced in this claim was supposed to be confirmed to Perry by the act of 13th June, 1812, or of May 26, 1824, as a lot appurtenant to the village of Mine a Breton, and accordingly in 1825, Perry procured from the recorder a certificate of such confirmation. This part of the 639 acres was that portion upon which Perry's dwelling-house and improvements were located. By the act of Congress of March 2, 1833, the board of commissioners appointed under the act of July 9, 1832, were authorized and required to examine claims founded on settlement and cultivation, as well as such as were founded on incomplete grants. Perry's claim was embraced within this provision, and testimony was taken before the board in relation to it. Before any action of the board was had upon this claim, Perry, in 1834, attempted to avail himself of the pre-emption privileges granted to the claimants who were willing to waive their claims and relinquish to the United States. He accordingly executed his deed of relinquishment for the 639 acres (including the ten or twelve acres which had been confirmed to him by the act of 1824), which was duly filed in the office of the recorder of land titles, and an abstract of which was duly transmitted to the register and receiver at Jackson. In September, 1834, before the expiration of the time allowed by the act of 1832, Perry applied to the register and receiver at Jackson to enter the 639 acres. The application was refused, on the ground that the surveys were yet incomplete. In 1836, after the surveys had been completed, application was again made, but the application was refused, on the ground that the law had expired. In 1839, the subject was brought to the notice of the head of the department, and the officers at Jackson were advised, that when application had been made in due time, and entries were not permitted for want of surveys, or from any cause not attributable to the fault or negligence of applicants, it was the custom of the department to permit such entries to be made, notwithstanding the expiration of the law. Perry was accordingly permitted to enter--not the whole tract which he had relinquished and which he again offered to purchase, but so much of it as was not embraced by the confirmation of 1824. It appears, that subsequent investigation satisfied the commissioner of the general land-office, that Perry was not an actual settler upon the land he was permitted to enter, and therefore in 1843, he directed Perry's certificate of entry to be canceled. A patent issued to the defendants, or some of them, in 1847.

When this case was before this court in 1846, there was no evidence to explain the circumstances under which the entry of the plaintiff was made. The present record contains the evidence. The certificate was issued under the act of July 9, 1832, and was dated in 1839. It appears that it was not by reason of any fault of the...