Widdicombe v. Childers

• Decision Date: 23 January 1888
• Citation: 8 S.Ct. 517,124 U.S. 400,31 L.Ed. 427
• Parties: WIDDICOMBE v. CHILDERS et al
• Court: U.S. Supreme Court

124 U.S. 400

8 S.Ct. 517

31 L.Ed. 427

WIDDICOMBE v. CHILDERS et al.

January 23, 1888.

S. S. Burdett, for plaintiff in error.

James Hagerman, for defendants in error.

WAITE, C. J.

This was a suit brought by Albert C. Widdicombe to recover the possession of the S. E. 1/4 sec. 36, T. 64, R. 6, Clarke county, Missouri. He claimed title under a patent of the United States, bearing date December 15, 1871, issued upon a location of agricultural scrip on the tenth of May, 1871, under the act of July 2, 1862, (12 St. 503, c. 130.) As an equitable defense to the action, such a defense being permissible by the laws of Missouri, the defendants alleged in substance that they claimed title under Edward Jenner Smith, who, on the sixth of July, 1836, went to the proper land-office and made application for the purchase of the land in dispute; that his application was duly accepted, and he completed the purchase by the payment of the purchase money, as required by law; that the entries made at the time by the proper officers in the plat and tract books kept in the office showed that he had bought and paid for the S. E. 1/4, but that the register, in writing his application, described the S. W. 1/4 by mistake; that he signed the application without discovering the error; that he immediately went into the possession of the S. E. 1/4, as and for the lands he had purchased, and he and those claiming under him have asserted title thereto, and paid taxes thereon, ever since; that afterwards the entries on the plat and tract books were changed, without authority of law, so as to show that his purchase had been of the S. W. 1/4 instead of the S. E. 1/4; that Widdicombe located his scrip on the S. E. 1/4, with full knowledge of all the facts, and that he now holds the legal title under his patent in trust for those claiming under Smith, whom the defendants represent in the suit. The prayer of the answer was that such trust might be established, and Widdicombe decreed to convey the legal title to those who had acquired Smith's rights. The trial court found the facts to be substantially as stated in the answer. The supreme court, on appeal, affirmed this finding, and rendered judgment in favor of the defendants, requiring Widdicombe to convey in accordance with the prayer of the answer. From that judgment this writ of error was brought.

We entertain no doubt whatever as to the correctness of the findings of fact in the courts below. The evidence establishes beyond all question that Smith intended to buy, and the officers at the land-office intended to sell, the S. E. 1/4. That tract was then unsold, while the S. W. 1/4 had been purchased by Robert Wooden at private entry on the eighth of November, 1834; and this was shown by the records of the office. The written application, by mistake, described the wrong land, and the certificates of the register and receiver followed the application; but the entries upon the records of the office were correct. The officers supposed they had sold, and Smith supposed he had paid for, the S. E. 1/4. This was in 1836. For 22 years afterwards certainly, and, as we are satisfied, for a much longer time, the plat and tract books showed that this quarter section was not subject to entry or sale. At some time, but exactly when or by whom does not distinctly appear, the entry of Smith was changed from the S. E. 1/4 to the S. W. 1/4, thus showing two entries of the S. W. 1/4,—one by Wooden in 1834, and the other by Smith in 1836. The fact of the change, as well as what it was, appeared on the face of the records, and no one could have been misled by it unless he wilfully shut his eyes to what was efore him.

Widdicombe was sworn as a witness in his own behalf, and the following is the whole of his testimony: 'I am plaintiff in this cause. I applied for and entered the land in controversy at the Boonville land-office, as shown by my application in evidence, in the early part of 1871; never was in Clarke county, Mo., or the north-eastern part of the state, prior to June, 1874; never saw the Hampton map of Clarke county, referred to in evidence, prior to that time; never saw any records, other than the government or United States records, having reference to the land in controversy prior to that time. I had heard of no person claiming the land in controversy prior to the time I went to Clarke county, in 1874. The defendant Childers was cutting timber upon the land when I went there, in June, 1874; and was cutting about the middle of the tract, so he informed me. Cross-examined by Defendants. I discovered the south-east quarter...