Russell v. DeFrance

• Decision Date: 28 February 1867
• Parties: JOHN M. RUSSELL et als., Defendants in Error, v. JAMES M. DEFRANCE, Plaintiff in Error.
• Court: Missouri Supreme Court

39 Mo. 506

JOHN M. RUSSELL et als., Defendants in Error,

v.JAMES M. DEFRANCE, Plaintiff in Error.

Supreme Court of Missouri.

February Term, 1867.

Error to Linn Circuit Court.

Suit commenced April 13, 1865. To the original petition a demurrer was filed and sustained.

The plaintiffs afterwards filed their amended petition, substantially, as follows:

“Plaintiffs state that they by themselves and their tenants, at the commencement of the April term for the year 1865 of said court, were and ever since have been, and still are in possession of certain lands in said county to-wit, the south-west quarter of section 18, in township 69, of range 20; that at said April term of said court of the year 1865, a judgment of dispossession was given by said court in favor of defendants against the plaintiffs Wesley Russell, Allan Sharp, Emeline Sharp, William F. Scandlan, and Sarah A. Scandlan, the other plaintiffs herein not having been made defendants in said action; that such recovery was obtained by defendant by virtue of a patent issued to him by the United States in the year 1860, conveying to him said lands; that on the first day of May, 1840, one Thomas Barber obtained from the Receiver of the United States Land Office at Fayette, in this State, a certificate of the entry by himself from the United States of the said land for the sum of $247.44, paid by himself to said Receiver for the same, and that said Barber at the time of his said purchase took actual possession of said land and remained in the actual possession thereof until he sold the same to one Thomas H. Russell; that on the 9th day of November, 1841, the said Barber sold and conveyed by warranty deed said land to said Thomas H. Russell, the said Russell then paying the value of the improvements thereon to said Barber in addition to the value of said land unimproved; that the said Thomas H. Russell remained in the actual possession of said land from the time of said purchase until the time of his death, in the month of February, 1852; that he died intestate, leaving nine children (their names are set forth, &c), two of whom have conveyed all of their interest in said lands to said plaintiffs Wesley and Joseph Russell; that the plaintiffs have continued in possession of said land from the death of said Thomas H. Russell up to the commencement of this suit, and that no part thereof has been by them sold to any other person; that the said Barber, during his occupancy of said land, enclosed and put in cultivation about fifty acres of said land, and that the said Thomas H. Russell, after his purchase thereof and before his death, enclosed and put in cultivation about twenty-five acres of said land in addition to the improvements made by said Barber; that the said Thomas H. Russell, on or about the year 1845, built a valuable dwelling-house, stable, barn, corncrib and smoke-house on said land; that the improvements made by said Barber on said land were, when made, and now are, of the value of $500, and those made by said Thomas H. Russell are of the value of $1,000; that all and each of said parties entered into possession of said land believing that they had a good title to the same, and that they made said improvements in good faith believing that they had a good title, and without any notice of any adverse title or claim by defendants, and prior to the issuing of the patent to him.”

The plaintiffs asked judgment for the sum of $1,500, and that the defendant be enjoined from taking possession of said land until the value of said improvements be paid or ascertained, &c.

The defendant demurred to the amended petition, setting forth as cause of demurrer that the complaint shows that the improvements for which plaintiffs claim judgment were made on the land while the title to the land remained in the United States, and before the patent therefor issued to the defendant.

The demurrer was overruled. Afterwards the defendant filed an answer to plaintiffs' amended petition, in which he stated that as to whether on the first day of May, 1840, or at any other time, one Thomas Barber obtained from the Receiver of the United States Land Office at Fayette, in this State, a certificate of the purchase by himself from the United States of the land described in plaintiffs' petition, he has not knowledge or information thereof sufficient to form a belief; denied that the aggregate value of the improvements on the land described in the petition of plaintiffs is $1,500, or any other value; he says that the improvements on said land are worn out and dilapidated, and are of no value whatever; that the plaintiffs ought not to recover the alleged value of said improvements, because they were all made before the issuing of the patent for said land to the defendant by the United States and while the title to said land was in the United States; wherefore the defendant prayed to be discharged, with his cost, &c.

At the April term, 1866, the following judgment was entered in the cause:

“Now at this day comes the plaintiffs,” &c. * * “which jury, after hearing the evidence, the arguments of counsel, and the instructions of the court, return into court with the following verdict: Land worth $16 per acre on the 10th day of October, 1864, with the improvements; land, aside from the improvements, $8 per acre. W. E. Crandall, foreman.' It is therefore ordered and adjudged by the court that the plaintiffs have and recover of the defendant the sum of one thousand five hundred dollars ($1,500) for their damages, with interest at the rate of six per cent. per annum from the rendition of this judgment, together with all the costs in this cause laid out and expended, and that they have execution therefor.”

Vories & Vories, for plaintiff in error.

I. The petition in this case is clearly bad, and the demurrer thereto should have been sustained. The land belonging to the United States at the time the improvements were made, the plaintiffs could acquire no right to recover for their improvements from the United States; and if not, then the defendant could not be placed in a worse condition as the grantee of the United States than they occupied before selling the land.

II. It is settled that no State can interfere with the primary disposition of the public lands by the United States; but if the plaintiff can recover in this action, the State courts might by the enforcements of such a law so construed, entirely prevent any sale of lands by the United States upon which any person should have by mistake made any improvement--Lawrence v. Grant, 12 U. S. Dig. 110.

III. The statute of this State under which this action was brought is an innovation of the common-law right of plaintiff in ejectment who proves to be the owner of the land; hence one who seeks a remedy under said law must strictly follow its provisions and bring himself exactly within the remedy provided in the act--Webster v. Stewart, 6 Clark's Iowa R. 401.

This proceeding does not come within the provisions of the act in this, to-wit: 1. The...