Rogers v. Richard H. W. Brent.

• Decision Date: 30 June 1849
• Citation: 5 Gilman 573,50 Am.Dec. 422,10 Ill. 573,1849 WL 4234
• Parties: JAMES ROGERSv.RICHARD H. W. BRENT.
• Court: Illinois Supreme Court

5 Gilman 573

10 Ill. 573

1849 WL 4234 (Ill.)

50 Am.Dec. 422

JAMES ROGERS

v.RICHARD H. W. BRENT.

Supreme Court of Illinois.

June Term, 1849.

OPINION TEXT STARTS HERE

EJECTMENT, brought by the defendant in error against the plaintiff in error, and tried at the August term, 1848, of the Lee circuit court, before the Hon. Thos. C. Browne and a jury.

The plaintiff below, to show title, gave in evidence a patent from the United States to Jesse Bowman, assignee of Samuel M. Bowman, for the premises in question, and a deed from Jesse Bowman and Anna Bowman to himself for the same lands.

The defendant below then offered in evidence a certificate of George Mixter, register of the land office at Dixon, Illinois, dated the 20th of August, 1847, that Samuel M. Bowman, on the 19th of May, 1840, purchased the lands in suit from the United States and made full payment for the same at that time; and defendant below stated that he expected to prove, that the certificates of sale on which the patents issued, were held by said Samuel M. Bowman and not assigned by him until the 5th of April, 1843; to the reception and reading of which certificate the plaintiff below objected, which objection was sustained by the court, and the certificate excluded, to which decision the defendant below excepted.

The defendant below then offered in evidence a certified copy of the assignment (of the duplicates upon which the patents aforesaid were issued) from Samuel M. Bowman to Jesse Bowman, dated the 5th of April, 1843, which copy was duly certified by Richard M. Young, commissioner of the general land office, under the seal of the general land office; to the reception of which, plaintiff below objected, and his objection was sustained, and the said certificate and copy of assignment excluded; to which decision the defendant below excepted.

The defendant below then offered in evidence the record of a judgment in said Lee county circuit court, rendered September 12th, 1842, in favor of H. F. Rodney and William Rodney, and against Samuel M. Bowman and Charles A. Lane, partners, etc., to the reception of which record the plaintiff below objected, and his objection was sustained by the court, and the record excluded, to which decision defendant below excepted.

The defendant below also offered in evidence an execution issued on said judgment against Bowman & Lane, under the seal of said Lee county circuit court, dated the 28th of September, 1842, with the sheriff's return thereon, showing a levy, appraisement, and sale of the premises in question (the sale under date of December 26th, 1842) to E. Southwick, plaintiff's attorney, and also a sheriff's deed to said lands, under said sale, dated December 17, 1844, all of which papers were separately offered, objected to by the plaintiff below, and excluded by the court; to which several decisions the defendant below excepted.

The jury found a verdict for the plaintiff, on which the court rendered judgment, and the defendant sued out his writ of error.

The plaintiff in error assigned for errors the several decisions of the circuit court in excluding the evidence recited above.

I. O. GLOVER and B. C. COOK, for the plaintiff in error:

The legal presumption that a deed was executed on the day it bears date, never obtains when the deed is proved to have been in the hands of the grantor subsequent to its date. 1 Denio, 323.

Delivery is essential to make a deed operative. Bryan v. Wash, 2 Gilm. 565; Ferguson v. Miles, 3 do. 364; Hulick v. Scovil, 4 do. 159.

A title acquired subsequent to the commencement of the action is not sufficient, for in such case the defendant does not, at the commencement of the suit, wrongfully withhold the possession as averred in the declaration.

The certificate of the register was evidence of title in Samuel M. Bowman at the time of the sale of the land on the judgment. Rev. Stat. 232; Delaunay v. Burnett, 4 Gilm. 454.

The case of McConnell v. Wilcox only decides that a certificate is not evidence as between the United States and a third person.

There is a distinction in this case. Here, the question is not as against a conflicting patent, or as against the United States, but as to what constitutes the first transfer of title from the purchaser.

To say that a person who has purchased lands of the United States may, after judgments are rendered against him and the land sold on execution, assign the duplicate, and defeat the purchase, would open the door to enormous fraud.

Lands are taxed from entry and before they are patented. Is not a judgment for taxes a lien?

The assignee of the duplicate was chargeable with notice of the judgment.

The United States, after sale and before the patent issues, is a trustee for the purchaser or his assignees, and the law may execute the trust and convert the equitable into a legal title.

E. S. LELAND, for the defendants in error:

The certificate of the commissioner of the general land office is not sufficient to prove when the certificate of entry was assigned. The certificate supposed to be assigned, or a certified copy thereof, should have been produced, in order that the court might see whether the assignment of said certificate is valid. It should appear from the certificate that the paper, of which a copy is given, is a paper belonging to the office of the commissioner. 2 Story's U. S. Laws, 1238.

There is a variance between the judgment and the execution offered in evidence by defendant; also between the sheriff's deed and the judgment. Den v. Farlee, 7 Halst. 326; Same v. Morse, ib. 331; Same v. Wright, 1 Peters' C. C. R. 66.

The defendant below was not injured by the exclusion of his offered evidence, because there is no evidence in this case, nor was any offered, to connect him with Southwick's title.

An action of ejectment tries the legal title. An equity can not prevail against the legal title in ejectment. The interest purchased at the sheriff's sale can be only an equity. Bagnell v. Broderich, 13 Peters, 436; Wilcox v. Jackson, ib. 498; Acts of 1838-9, page 196.

The Opinion of the Court was delivered by CATON, J.

This was an action of ejectment, and upon the trial in the circuit court the plaintiff below introduced a patent from the United States, for the premises in question, to Jesse Bowman as assignee of Samuel M. Bowman, dated on the first of May, 1843, which was followed by a deed from Jesse Bowman to Brent, dated December 1st, 1846. The plaintiff then proved the possession of the defendant, and closed his case.

The defendant then offered to prove by the register's certificate, that the land in controversy was entered at the land office by Samuel M. Bowman on the 19th of May, 1840, and that he assigned his certificate of purchase to Jesse Bowman on the 5th of April, 1843. He also offered the record of a judgment in the Lee circuit court, against Samuel M. Bowman, which was entered on the 12th day of September, 1842, upon which an execution was issued on the 28th of the same month, by virtue of which the sheriff levied on the premises in question, and advertised and sold them according to law to Southwick, who obtained a sheriff's deed on the 17th of December, 1844. As each portion of this evidence was offered it was objected to, and ruled out by the court, and an exception taken. A verdict and judgment were entered for the plaintiff.

It is first necessary to inquire what rights were acquired under the judgment and sheriff's sale and conveyance, as against the patentee and his grantee, and then whether these rights could be asserted and vindicated in this action of ejectment.

By section one, chapter fifty-seven, of the revised statutes, “all interest of the defendant or any person to his use, held or claimed by virtue of any deed, bond, covenant or otherwise for a conveyance, or as mortgagee or mortgagor of lands in fee, for life, or for years,” are made subject to execution. This language is sufficiently comprehensive to embrace the interest of a purchaser of government land while he holds the certificate of purchase, and before the patent issues. But that no doubt might be left on the subject, the third section provides, that “the legal holder or holders by record of any certificate of purchase of lands from the United States, shall be deemed to be within the true intent and meaning of this chapter.” At the time of the recovery of this judgment, the issuing of the execution, and of the levy and sale under it, Samuel M. Bowman was the legal holder of record, of the certificate of purchase for the premises, as the assignment to Jesse Bowman was not made till the 5th of April, 1843, about seven months after the judgment was recovered. All of the interest which Samuel M. Bowman ever had in the land, whether legal or equitable, passed to Southwick by the sale under the execution and the sheriff's deed, as completely as if the transfer had been by voluntary conveyance, and Southwick was as much entitled to a patent in the one case as he would have been in the other, and such is the effect given to these judicial transfers by the general government. See opinion of U. S. Att'y Gen'l, Pub. Land Laws, part 2d, page 3.

The nature and extent of the interest of a purchaser under a certificate were before the Supreme court of the United States, in the case of Carroll v. Safford, 3 Howard, 441; as well as the right of the State laws to control and dispose of that interest. In that case the court said: “When the land was purchased and paid for, it was no longer the property of the United States, but of the purchaser. He held for it a final certificate which could no more be canceled by the United States, than a patent. It is true, if the land had been previously sold by the United States, or reserved from sale, the certificate or patent might be recalled by the United States as having been issued through mistake. In this respect there is no difference between the certificate holder and the patentee.” The right of the State authorities, under the...