Prior v. Lambeth

• Decision Date: 31 October 1883
• Citation: 78 Mo. 538
• Parties: PRIOR, Appellant, v. LAMBETH.
• Court: Missouri Supreme Court

78 Mo. 538

PRIOR, Appellant,

v.LAMBETH.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Osage Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

Edwin Silver for appellant.

L. C. Krauthoff for respondent.

PHILIPS, C.

Action in ejectment to recover “the south fractional half of southeast fractional quarter (west of the Gasconade river) of section 3, township 43, north of range 7 west.” The answer tendered the general issue, and pleaded specially a former recovery by defendants in an action of ejectment against plaintiff, and that it was afterward agreed between them that if defendant here would not enforce the collection of plaintiff of the rental part of said judgment, the plaintiff, Lambeth, would surrender to Prior possession of said land, and that this proposal was accepted and acted on as a full settlement of this whole controversy, which settlement defendant pleads in estoppel. A jury being waived, the cause was tried by the court.

Plaintiff's title consisted of a certificate of entry for the land from the proper United States land office, of date March 13th, 1855, issued to one Christopher Hamilton; patent thereon to said Hamilton dated January 1st, 1862, and deed from Hamilton to plaintiff. Defendant claims that the land is what is commonly known as swamp or overflowed land, coming to the State of Missouri by virtue of the act of congress of date September 28th, 1850. It was patented to the State in January, 1863, and by the Governor of the State to Osage county in 1869, and by the county it was conveyed to the defendant in 1875.

The evidence touching its swampy character, and the steps taken by the authorities to determine its status, are briefly as follows: In 1851 the surveyor of Osage county filed in the office of the Secretary of State an affidavit statig that he had examined the southeast fractional quarter of said section, and found the same to be swamp land; in 1853 the Surveyor General for Illinois and Missouri filed in the office of the Register of Lands of Missouri a list of swamp lands, including the southeast fractional quarter of said section west of the river Gasconade; in 1867 the Register of Lands for the State made out a certificate, which was filed in the office of the county clerk of Osage county, stating that said lands with others had been patented to the State.

The records in the land office at Washington City showed in substance, the following facts: In 1858 the Commissioner of the General Land Office certified to the Secretary of the Interior for his approval, under the Swamp Land Act, the following lands in said section: “Northwest quarter of northeast quarter, south fractional half of northeast quarter, north of the Gasconade river, and the northeast quarter of southeast quarter.” This list was approved by the secretary in 1859. In 1866 a similar list was certified and approved embracing the northwest quarter of southeast quarter. The patent above referred to, from the United States to State of Missouri, described the lands as follows: “The northwest quarter of northeast quarter, the south fractional half, north of the river, and the northeast quarter of the southeast quarter of section 3, township 43, range 7.” Defendant introduced a witness who testified that the land was swampy.

The only evidence relative to the estoppel set up in the answer, is the testimony of the plaintiff, who was introduced as a witness by defendant. It is as follows: “I asked Prior to let me off with the rents and profits in the other suit for this land, and he would not do it; Prior had a writ of possession and had rented the land to other parties; Prior and I then agreed that I should give Prior the rent due me, and he would let me off as to the judgment for rents and profits; I gave him my rent--one-third of the crops--and he released me from the money judgment; writ of possession was not then served on me; I gave Prior possession because of the writ; I had to get out; he took my rent which was due me from the tenants to whom I had rented, and released the judgment for money; the sheriff had told me he had the writ.” On cross-examination: “McClemens, who was my attorney, told Prior that he had no doubt of my title and could sue him at the next term of the court.”

A number of instructions were requested and given and some refused. But as the trial was had before the court, and the conclusion reached by the court being, in our opinion, correct, it is unnecessary to review the instructions. The court found the issues for the plaintiff, and the defendant brings the case here on appeal.

I. The contention of appellant, defendant below, is that the land in controversy is swamp land, donated to the State by the well known act of congress of September 28th, 1850, providing for the reclamation of swamp and overflowed lands. 9 U. S. St. at Large, p. 519. He asserts that the act of congress operated as a grant in praesenti by which the title to such land passed eo instanti, to the State. Therefore, he contends that notwithstanding between the date of the act of congress and the subsequent segregation of the lands as swamp lands by the Secretary of the Interior, and the issue of the patent, the United States may have sold and patented the land as of the public domain to an individual, yet when the patent for the land in question issued to the State it had relation back to and became operative from the date of the act of 1850, so as to effectually cut out such intervening purchaser.

French v. Fyan, 93 U. S. 169, is cited in support of this proposition. It is worthy of observation that there it was a controversy between a claimant under the Swamp Land Act on the one side, and under the Pacific Railroad grant on the other. While the land was certified to the railroad company by the Secretary of the Interior in 1854, it was patented to the state as swamp land in 1857, five years before the purchaser under the railroad contracted for it. So that the case was to be determined really on the right and claim of the state and the railroad as they stood in 1857, when the government patented the land to the state. Both of the claimants were donees-- beneficiaries of the bounty of the government. And as no question of the rights of an intervening purchaser were involved, and as neither the acts of 1855 nor 1857, hereinafter referred to, applied, the court might well have held that the doctrine of relation obtained so that the patent to the state in 1857 took effect as of 1850.

But a more satisfactory answer, perhaps, may rest on the fact that the grant to the railroad was not, in the nature of the case, one in praesenti. It was necessarily made to depend upon the future location of the road. Until the location was definitely fixed it was impossible to know what sections of land would be touched, on which the designation of the alternate sections would depend. Coupled too with the railroad grant was a proviso excepting from its operations “all lands heretofore reserved by any act of congress, or in any manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatever.” This excluded from the railroad grant, the lands covered by the acts of 1850. Railroad Co. v. Smith, 9 Wall. 95, 97, 98.

In construing the act of 1850 the whole act must be considered together. The first section standing alone would seem, ipso facto, to vest the lands in the state without more. But the second section makes it the duty of the Secretary of the Interior, on evidence manifestly to be obtained by him through surveys and other reliable sources, to make out accurate lists and plats of the lands, designating them as swamp and overflowed....