Stephenson v. Smith

• Decision Date: 30 September 1842
• Citation: 7 Mo. 610
• Parties: STEPHENSON v. SMITH.
• Court: Missouri Supreme Court

7 Mo. 610

STEPHENSON

v.SMITH.

Supreme Court of Missouri.

September Term, 1842.

ERROR TO THE ST. CHARLES CIRCUIT COURT.

CAMPBELL and GAMBLE, for Plaintiff.

BATES, for Defendant.

SCOTT, J.

This was a bill in chancery, filed by Nancy Smith against Thomas Stephenson and James Coleman for an injunction and relief. The bill stated that the plaintiff, Nancy Smith, in the year 1829, at the United States land office, in St. Louis, entered a half-quarter section of land, situated in the county of St. Charles. She was, at the time of the entry, and ever since has been, in possession of the said tract of land. At the time of making the entry, James Coleman, one of the defendants, was acting as agent or clerk both for the register and receiver. It being inconvenient to go in person she sent her son to the office, who paid to Coleman the purchase-money, for and in the name of his mother. Instead of a regular certificate of entry, Coleman fraudulently delivered to her son, who was so illiterate as to be unable to read writing, a paper, of which the following is a copy:

RECEIVER'S OFFICE, St. Louis, Mo.

)

October 6th, 1829.

)

No. 1891. Received from Samuel Johnson, of ______ county, Ky., the sum of one hundred dollars, _____ cents, being in full for the west 1/2, S. E. 1/4 of section No. 17, of township No. 47, range No. 2, E., containing 80 acres, at the rate of $1.25 per acre. $100.

JAMES COLEMAN,

For the Receiver.

And with his own hand wrote upon the back of the receipt a memorandum, of which the following is a copy:

“The patent for the within W. 1/2, S. E. 1/4, sec. No. 17, 47, 2 east, containing 80 acres, will issue in the name of Nancy Smith, of St. Charles county, Mo.

JAMES COLEMAN,

Land Office, 5th Dec. 1829.

Her son received the paper, not suspecting any fraud, and returning home delivered it to her. She being unable to read, did not doubt but that the receipt was regular, and that in due time she would receive a patent for the land which she had thus purchased. The bill then charges that there was no such person as Samuel Johnson, named in the receipt; that it was a mere name assumed by Coleman to effect his fraudulent purpose. In pursuance of that purpose he made out a regular certificate of entry in the name of Samuel Johnson, bearing the same date with the receipt above mentioned, which was signed by the proper officer. (It appearing to be the practice of the office for the receiver to sign blank receipts and certificates, and leave them with his clerks.) On the certificate of entry, the said Coleman wrote an assignment under seal, with a blank for the name of the assignee, which purported to be executed by Samuel Johnson; Coleman being a notary public, also wrote an acknowledgment of the assignment, which was duly authenticated.

Coleman afterwards left the State of Missouri, and went to Kentucky, when he sold the land in controversy to Thomas Stephenson, one of the defendants, and delivered to him the certificate of entry, first inserting his name as assignee in the blank in the assignment. Stephenson afterwards, in October, 1834, obtained a patent for the land in his own name, as assignee of Samuel Johnson, and instituted an action of ejectment against the plaintiff. The bill prays for an injunction, and that the title to the land may be decreed to pass to the plaintiff, and that the patent may be delivered up, &c. The answer of Stephenson denies all knowledge of the fraudulent conduct of Coleman, or of any of the transactions which preceeded his purchase. Denies that Nancy Smith entered the land in dispute, or that she has any title thereto, legal or equitable He purchased the land under the following circumstances. Many years ago he was acquainted with Coleman, in Kentucky, where they both resided. That Coleman becoming insolvent, went to St. Louis, leaving many debts unpaid in Kentucky. In the year 1834, Coleman returned to Kentucky, where he again met with him. Being desirous to make arrangements to migrate to Missouri, Coleman informed him that he had the disposal of several tracts of land in that State, and would be glad to sell him as much as would make a good farm. Upon Coleman's representations, he agreed to purchase the land in dispute, together with another tract of eighty acres, for the sum of one thousand dollars. At the time of the purchase he was informed by Coleman that the title was not in himself, but in the name of S. Johnson, a friend of his, who resided in Kentucky or Missouri; that he held the certificate of entry, the usual paper given to those who enter the public lands, as evidence of the fact, and that for the convenience of conveyance, the said Samuel Johnson had regularly executed and acknowledged a blank assignment of said certificate; that the blank was left for the name of the purchaser, and that he, Coleman, was fully impowered to fill the same. It was agreed between him and Coleman, that the purchase money should not be paid until it was ascertained whether a patent would issue in his, Stephenson's name. Coleman filled up the blank in the assignment, and delivered it to him. He believed the certificate of entry had been assigned in that manner by Coleman in order to prevent being harassed by his old debts in Kentucky. He believed the land had been fairly entered by Samuel Johnson, and that Coleman was fully authorized to dispose of it. To be entirely guarded against the possibility of any fraud, or mistake, or defect of title, or authority, he determined to make inquiry as to the title at Washington City; and after fully stating all the circumstances under which he became possessed of the certificate of entry, to the Commissioner of the General Land Office, he was informed by that officer that a patent would issue in his name, as assignee of Samuel Johnson. In October, 1834, he received a patent for the land in controversy, having previously paid Coleman the purchase money, and afterwards commenced his action of ejectment. He denies all knowledge whatever of the title of the plaintiff. Coleman never answered the bill, and it was taken for confessed as to him, after proof of service by publication.

On the hearing of the cause, the original receipt given by Coleman to Nancy Smith, and the original certificate of entry in the name of S. Johnson, and the assignment thereon were produced. Two witnesses were introduced, who being well acquainted with Coleman's hand-writing, from having seen him frequently write, were confident that the said papers were in the hand-writing of Coleman. That the signature purporting to be Coleman's was his; and although the signature Samuel Johnson, subscribed to the assignment on the certificate was simulated, yet from points of resemblance between it and the genuine hand-writing of Coleman, they believed it to be his; that Coleman did busines in the land offices for both the register and receiver. Those officers were in the habit of signing, in blank, the necessary papers which were filled up by Coleman, and delivered to the purchaser of the public lands; that Coleman was discharged by the land officers on account of imputations of fraud against him on the account of the officers. The witnesses did not recollect whether Coleman was in the office or not in the year 1829.

Another witness was produced, the son of the plaintiff; he testified that his mother, some short time before she entered the land, became apprehensive that another would enter it; she had not the money and could not obtain it. It seems then a brother of the plaintiff went to St. Louis and made some arrangement by which her apprehensions were quieted. The witness further testified, that some few weeks after, at the instance of his mother, h went to St. Louis to enter the land. He was informed by his mother's brother, who had previously been to St. Louis on that business, that he would have some interest to pay on the money; and that if he paid the money and interest he would get the certificate. He paid Coleman one hundred and ten dollars for the land and interest. Coleman took the receipt, a copy of which has been set out above, and wrote the memorandum thereon. That he was unable to read writing, as was likewise his mother; and it was some years after that they were apprised of the fraud committed by Coleman, and of the claim of another to the land. On the hearing, the court decreed for the plaintiff, from which an appeal has been taken to this court.

The first point made by Stephenson's counsel is, that Nancy Smith does not show any title or claim, legal or equitable, such as will enable her to contest the right of Stephenson; or, in other words, there is no evidence that she ever entered the land in dispute. This objection will make it necessary to offer some observations on the testimony preserved in the cause. Nancy Smith being fearful another would enter the land, prevailed on her brother going to St. Louis to do something by which it might be prevented. On the return of her brother her fears were quieted; and her son was informed by her brother that he would have something to pay for the money, and when the purchase money and interest were paid he would get the certificate; that he paid the purchase money, and ten dollars for interest, a few weeks afterwards. The inference drawn from these facts is, that Coleman loaned the money when Mrs. Smith's brother went to St. Louis, and that the entry was made at that time; and in order to secure himself, Coleman made out the certificate of entry in the name of Samuel Johnson, which was to be assigned upon the payment of the loan and interest. Mrs. Smith's son says, Coleman took the receipt from him and indorsed the memorandum; the receipt and certificate of entry bear the same date; the memorandum bears date some weeks after the receipt. These circumstances strengthen the inference deduced from the facts above stated. Coleman might or might not have contemplated a fraud when the loan was made; he certainly placed it in his power to...