Sensenderfer v. Smith

• Decision Date: 31 October 1877
• Parties: SENSENDERFER, Appellant v. SMITH et al
• Court: Missouri Supreme Court

66 Mo. 80

SENSENDERFER, Appellant

v.SMITH et al

Supreme Court of Missouri.

October Term, 1877.

Appeal from Johnson Circuit Court.--HON. FOSTER P. WRIGHT, Judge.

H. B. Johnson and Snoddy & Short for appellant, cited U. S. Rev. Stat., §§ 2469, 2470, 2355; Wag. Stat. 592, § 15; 1 Green. Ev., § 558; Bull. N. P. 254; Rex v. Castleton, 6 T. R. 236; Doe v. Pulman, 3 Ad. & El. (N. S.) 622; Alisonv. Furnival,1 C. M. & R. 292; 1 Phil. Ev. (5 Am. Ed.) 485; U. S. Rev. Stat., §§ 2369 to 2372; Johnson v. Towsley, 13 Wall. 72; Allison v. Hunter, 9 Mo. 749; Bodley v. Taylor, 5 Cranch 191; Brush v. Ware, 15 Pet. 93; 1 Sto. Eq. Jur., §§ 146, 147 and note; 1 Phil. Ev., pp. 567 to 585, 592; Lester's Land Laws, Vol. 1, pp. 311, 322, 325, 327; Harper v. Scott, 12 Geo. 125; Griffith v. Deerfelt, 17 Mo. 31; Bagnell v. Broderick, 13 Pet. 436; Wilcox v. Jackson, Ib. 498; Leblanc v. Ludrique, 14 La. An. 772; Sweatt v. Corcoran, 37 Miss. 513; Bledsoe v. Little, 4 How. (Miss.) 13; Carter v. Spencer, Id. 42; Harris v. McKissack, 34 Miss. 464; Maxey v. O'Conner, 23 Tex. 241; Dickinson v. Brown, 9 Sm. & M. 130; Boggs v. Merced Co., 14 Cal. 279; Leese v. Clark, 18 Cal. 535; Waterman v. Smith, 13 Cal. 373; Lebeau v. Armitage, 47 Mo. 138; Enfield v. Day, 11 N. H. 520; Enfield v. Permit, 8 N. H. 512; Bellows v. Copp, 20 N. H. 492; McCaughal v. Ryan, 27 Barb. 376; Doe v. Craft, 1 Kerr N. B. 546; Robinson v. Leake, 14 Iowa 421; Barry v. Gamble, 8 Mo. 88; Stringer v. Young, 3 Pet. 320; Boardman v. Reed, 6 Pet. 328; Minter v. Crommelin, 18 How. 87; Steiner v. Coxe, 4 Pa. St. 13; Hill v. Miller, 36 Mo. 182; Willot v. Sanford, 19 How. 79; Cavender v. Smith, 8 Iowa 360.

Crittenden & Cockrell and J. J. Cockrell for respondents, cited Lester's Land Laws, p. 47; 1st Story's Eq., Sec. 165; Rhodes v. Outcalt, 48 Mo. 367; Wickersham v. Woodbeck, 57 Mo. 61; Aldrich v. Aldrich, 37 Ills. 32; Brill v. Stiles, 35 Ills. 305; Goolsbee v. Fordham, 49 Ala. 202; Ventress v. Smith, 10 Pet. 161; Warren v. Van Brunt, 19 Wall. 646; Trulock v. Taylor, 26 Ark. 54; Carroll v. Safford, 3 How. 461; Witherspoon v. Duncan, 4 Wall. 218; Stark v. Starrs, 6 Wall. 408; Hedrick v. Hughes, 15 Wall. 123.

HENRY, J.

This is a suit in ejectment by plaintiff, to recover the nw qr. of the se qr. of Sec. No. 35, in township 48 and range 24 in Johnson county.

The defendants make an equitable defense, stating in their answer, that, on the 19th of July, 1854, one B. F. Dunkley, under whom they claim, entered the land in question at the United States Land office, at Clinton, Missouri, paid the purchase price, and received from the receiver of the land office, a receipt for fifty dollars, the amount of the purchase money, in which it was stated that it was the consideration money for the land in question, and that he, thereupon, immediately took possession of said land, and continued in possession thereof, until he conveyed it to defendants, who have been in possession ever since the conveyance to them. They further allege, that when Dunkley entered said land, the register of the land office at Clinton made due entry of such fact upon the records of said office, and thereafter evidence of such entry was kept at the land office at Boonville, Missouri, and in the office of the recorder of deeds, and county clerk's office for Johnson county; that after said entry by Dunkley, the building in which the land office was kept at Warsaw, Missouri, to which place the office had been removed from Clinton, was consumed by fire, together with all the records, plats and plat-books of the government pertaining to the land office in said land district, and that afterwards, either by mistake or otherwise, the records manufactured for and supplied to said land office, after the fire at Warsaw, erroneously “exhibited, that the tract of land in controversy, was vacant and unentered,” and that said Dunkley had entered other and different parcels in said section, but not the nw qr. of the se qr.; that said Dunkley and defendants were ignorant of such false entries, until informed by plaintiff that he had entered said land. They charge that plaintiff, when he entered said land, knew that defendants were living on and cultivating the same, and that Dunkley had entered the land. Plaintiff, in his replication, denied the allegations in defendant's answer. The court, after hearing the evidence, found for defendant and rendered a judgment accordingly, from which plaintiff has appealed.

The main questions to be considered are:

1st. Did Dunkley enter the land in controversy in July, 1854?

2d. If he did, had plaintiff notice of that fact, or of such facts, as in equity are equivalent to notice of that principal fact?

The evidence relied upon by defendants to establish the entry of the land by Dunkley in 1854, is oral, and must be of sufficient weight to overcome the record evidence to the contrary, furnished by the plat-book of the land office at Warsaw, the record of the land department at Washington and the patent of the United States issued to plaintiff, before a court of equity would be warranted in holding plaintiff as a trustee for Dunkley or his grantees. It appears, from the evidence, that the office was taken from Clinton to Warsaw, where the records of the land office for that district were consumed by fire, but when the office was afterwards moved to Boonville, these records were supplied from the general land office at Washington, which showed the land in question to be vacant.

The records of entries of land in the several land districts are made at the general land office, from monthly and quarterly reports of the registers and receivers, and from duplicate receipts for land entered, forwarded by the land district officers to the general land office. The register and receiver of the land office at Clinton certified to the general land office the entries made in July, 1854, and the tract in question was not embraced in that monthly report, or in any monthly or quarterly report made from July, 1854, to September, 1871, when the patent for the land was issued to plaintiff. We have said that the records of the land office at Clinton furnished evidence that the land in question had not been entered. It is true, that Faulk, a witness for defendants, testifies that he saw the register at the land office, when he entered the land for Dunkley, write the name of B. F. Dunkley on the plat-book, on the space which indicated the tract in question, and that Keen, another witness for defendants states, that in the latter part of September, 1854, he went in person to the land office at Clinton, and entered eight forty acre tracts in section 35, and then saw on the plat-book of said land office, the tract in controversy, marked as “entered.”

On that plat, the ne qr. of the se qr., of section 35, was marked as entered by Dunkley. In November, 1854, a patent was issued to Dunkley for the ne qr. of the se qr. Dunkley testified that he never entered that forty. The plat-book at Boonville also showed that forty entered by Dunkley. If he did not enter that, instead of the nw qr. of the se qr., and it be true, as Keen and Faulk stated, that the plat-book showed the latter as entered by Dunkley, how did it happen that both the ne qr. and the nw qr. were marked on the plat-book as entered by Dunkley? And how did the alteration on the plat-book afterwards occur, showing the nw qr. of the ne qr. vacant? No conceivable motive for making such an alteration can be ascribed to the officers of the land office, for neither of them, nor any one connected with them, profited by the alteration, and the land for years after, appeared vacant on the plat-book. These witnesses are testifying from memory, to facts contradictory of record evidence, and their testimony to overcome it, should be of the most unquestionable and conclusive charactcr. Mr. Keen says that he knew that Dunkley desired to enter this tract of land. He knew that his brother-in-law, Faulk, went to Clinton to enter it for Dunkley. He knew that Faulk was very familiar with the land in that section, and the boundaries and corners of its subdivisions, and that when Faulk returned, Faulk showed him the duplicate receipt, which he read and remembers, that it showed the entry of this identical forty. He says it also showed that it had been entered for Dr. Dunkley by Faulk.

The duplicate receipt for the purchase money for the ne qr. of the ne qr. forwarded to the General Land Office from the Clinton office, read in evidence by plaintiff, does not show that Faulk had any connection whatever with the entry; and it will be borne in mind that defendants' theory is that the tract was embraced in the duplicate sent to Washington instead of the tract in controversy. When Keen testifies, after the lapse of twenty-three years, to the contents of that duplicate shown him by Faulk, it is charity to suppose that he has mistaken the impression made upon his mind, by his knowledge, that Dunkley wanted to enter that tract, and that Faulk went to enter it for him, for a recollection that the duplicate described the land in controversy. Faulk's testimony, that he saw the register mark this tract on the plat, as entered, is contradicted by the record. That he saw him mark a tract as entered on that occasion, we have no doubt, but in the light of other facts, which are indisputable, we are satisfied that it was the ne qr. of the ne qr. that was so marked, and that the witness is mistaken. The register did not then mark two tracts as entered, and in about two months from the date of that entry the patent for the ne qr. of the ne qr. was issued to Dunkley. Dunkley testifies that his receipt is lost or mislaid, but is positive that it described the tract in controversy. He, too, testifies from memory, as to the contents of that receipt.

The clerk of the county court of Johnson county testifies that the land in question was assessed to Dr. Dunkley from 1867 to 1874, inclusive, and never before 1867, and that the...