Wilson v. Byers

• Decision Date: 31 January 1875
• Citation: 77 Ill. 76,1875 WL 8266
• Parties: EDWARD S. WILSONv.ALEX. L. BYERS et al.
• Court: Illinois Supreme Court

77 Ill. 76

1875 WL 8266 (Ill.)

EDWARD S. WILSON

v.ALEX. L. BYERS et al.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jasper county; the Hon. JAMES C. ALLEN, Judge, presiding.

Messrs. WILSON & HUTCHINSON, for the appellant.

Messrs. ROBINSON, KNAPP & SHUTT, and Mr. FINNEY D. PRESTON, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The bill in chancery in this case charged that, about April 20, 1820, one David Rawlings applied at the Shawneetown land office, in this State, to enter the whole of the south-east quarter of section 34, township 4 north of the base-line, range 10 east of the third principal meridian, and paid the partial payment thereon then permitted by law; that afterwards, being unable to pay for the whole of said tract, he relinquished to the United States the east half of the quarter section, retaining the west half; that he assigned his certificate of entry to one James Elliott, who completed the payment for said west half, received a certificate of purchase therefor, and which passed into a patent from the United States to James Elliott, as assignee of David Rawlings, in which patent the land is described as being in township number 4 south, instead of north of the base-line; that Elliott afterward sold and conveyed the tract to one Thomas W. Lilley, describing correctly in the deed the land as the west half of the south-east quarter of section 34, township 4 north, range 10 east, etc.; that in 1841, Lilley platted part of this tract in town lots, which are now part of the town of Olney, and sold and conveyed several of the lots to the complainants; that in February, 1871, Edward S. Wilson, the defendant, procured patents from the United States to said west half of south-east quarter of section 34, township 4 north, range 10 east, etc., and claims to own the same; that the patent of Wilson constitutes a cloud on complainants' title, and prays that Wilson be ordered to convey to them, etc.

The court below, on hearing upon proofs, decreed the relief prayed, and defendant appealed from the decree.

It is conceded by appellant's counsel that the entry of and payment for public land give better title, in equity, than a subsequent patent to another person. The important question in the case, then, and the only real subject of dispute, is one of fact: what tract of land did David Rawlings buy, or intend to buy, of the United States; and, also, what tract did the United States sell to him?

The cause was heard below upon an agreed statement of facts, in addition to the documentary testimony, and the depositions of Alexander and Keefer, former registers of the Palestine and Springfield land offices.

It appears that the original application by David Rawlings to enter land April 11, 1820, and the certificate of such entry then issued to him at the Shawneetown land office, are lost; that Michael Rawlings, father of David Rawlings, settled with his family on the west half south-east quarter section 34, township 4 north, range 10 east, third principal meridian, in the fall of 1820; built a house thereon and resided in it, and inclosed part of the tract. His son David lived with him in his family. They lived there till the spring of 1823, when Michael Rawlings sold said tract to James Elliott, who moved into the house and took possession in the fall of 1823, and made additional improvements thereon. Elliott lived there until 1837, when he sold and conveyed the said tract to Thomas W. Lilley, describing it correctly in his deed. Lilley took possession and inclosed the whole tract, and lived on the same until his death, in 1869. He platted part of it as an addition to Olney, and many of the lots had been sold by him, among which are those claimed by complainants. Lilley's widow continues to occupy part of said land as her homestead. Since their purchase, complainants have been in actual possession of their lots, and have erected buildings on them. Clark D. Stillwell, on September 24, 1854, obtained a certificate of entry, at the Shawneetown land office, for the north-west quarter of south-east quarter of section 34, township 4 south, range 10 east, third principal meridian, and went on the same in 1855, made some improvements, and has since sold and conveyed said tract to Joseph P. Stillwell. This certificate was, however, cancelled June 12, 1855, by the Commissioner of the General Land Office, as interfering with a previous sale of the west half of the quarter to David Rawlings, April 11, 1820.

White county, in which the west half south-east quarter 34, 4 south, 10 east, third principal meridian, is situated, has sold and conveyed to Joseph P. Still well the south-west quarter of south-east quarter 34, 4 south, 10 east, third principal meridian, it having been previously vested in the county as swamp-land, under the act of Congress granting the swamplands; since which sale by the county, both said forties in south-east quarter 34, township 4 south, have been occupied by said Stillwell and his grantees, who have improved the same.

The west half south-east quarter 34, 4 south, 10 east, third principal meridian, was wild and unoccupied land prior to Stillwell's entry, in 1855. Neither Michael Rawlings, David Rawlings nor James Elliott, ever lived on said last tract of land, or claimed title to it, or lived in White county. Edward S. Wilson, the defendant, is a lawyer of several years' practice, and has been engaged in abstracting titles to land, in Olney, and has lived there several years.

From the above recited facts, there can be no doubt what land Rawlings intended to purchase, and supposed he had purchased, and what land Elliott, as his assignee, intended to complete the purchase of, and supposed he had done so; that it was the eighty-acre tract in 4 north; and that the defendant was chargeable with constructive notice of whatever equitable rights they and the complainants had thereto.

But this, of itself, is not enough. The mistake, to be relieved against, must have been mutual, and the land officers making sale of the land, as well, must have intended to sell this same tract. Rawlings might have made a mistake in his original application to enter the land, and have wrongly described it as in 4 south; but this original application is lost, as well as the certificate of the entry issued to him, and we have to look to the official records of the land offices for evidence upon the point.

We may first say that, in 1820, when this entry was made, the United States was selling its lands at $2 per acre, one-fourth of the purchase money being required to be paid in cash at the time of the entry, and the balance in annual payments.

We have, then, in evidence an extract from ledger D of the register's office, Shawneetown land office, where we find that on April 11, 1820, is recorded the fact that on that day “David Rawlings, of Edwards county, Illinois, bought the S. E. 1/4 of sec. 34, in township No. 4 N., R. 10 E., for $320;” that on the same day he is credited, “By cash, $80.” In this entry, the letter “N,” after the township, is in red ink, and appears above the line of the rest of the entry. This is a suspicious circumstance, and renders it unsatisfactory what the original entry was.

We have next the following:

“RECEIVER'S OFFICE, AT SHAWNEETOWN, ILL.,

11 th April, 1820.

Sundries Dr.--To sales of public lands:

+-----------------------------------------------------------------------------+
                ¦David Rawlings, for purchase

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