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well doubted whether it is not more properly a subject of diplomatic adjustment than of determination by the courts.
For the errors in the decree already indicated, it is REVERSED, and the cause is
REMANDED FOR FURTHER PROCEEDINGS.
BRANSON v. WIRTH.
The government, as appeared by the exemplification of the record of a patent,
had granted, January 10th, 1818, to A. the northeast quarter of a certain tract of land, in pursuance confessedly of a warrant and location upon that quarter; the exemplification of the record of the patent, however, showing that eight years after the date of the patent a orandun': had been made [by whom did not appear) on this record, that the patent itself was issued for the southeast quarter. The government had confessedly issued a patent to Z. for this southeast quarter on the 7th of January, 1818; that is to say, three days before the date of the påtent to A., for whatevrr corner the patent to A. really was. In 1819 A. conveyed to B. the southeast corner, describing it as the quarter which had been granted by patent to bim, January 10th, 1818. In 1824 B. conveyed to C., describing the land as the southeast corner. In 1825 C. conveyed to D.; and in 1829 D. conveyed to E., the deeds of both these last describing the land as the southeast corner ; but the latter deed not being put on record. In 1827 a private act of Congress was passed authorizing the legal representative or assignee of A. to register with the register of the proper land office any unappropriated quartersection, &c., "in lieu of the quarter-section patented to the said A. on the 10th of January, 1818, which had been previously patented to Z.;"
and in pursuance of this act E. did, in 1838, enter another lot. In 1843, on an assumption that the government had conveyed away its
title to it, the northeast quarter was sold under the laws of Illinois for State taxes and bought by 0. And in 1868, on an assumption that the title was still in the government, the same quarter was patented by the
United States to P. On a suit by P. against O., Held1st. On a supposition that the patent was given for the northeast quarter,
that there was no estoppel shown either by the deeds from A. to E., both inclusive, or by the act of Congress (it being a private act), or by E.'s selection of a new lot which prevented the defendants from showing the truth of the case, to wit, that the patent was for the northeast quarter.
Siatement of the case.
2d. That the “memorandum” on the record being no part of the record,
and but the memorandum of a third person, could not be received in
evidence to contradict the record. 3d. That accordingly it was error to have instructed the jury that the de
fendants had not shown outstanding title in the northeast quarter (the lot sued for), either in A. or in any one under him, and that the plaintiff was entitled to recover.
In error to the Circuit Court for the Southern District of Illinois; the case being thus:
Wirth brought ejectment against Branson and another for the recovery of the northeast quarter of section 18, in a certain township in Fulton County, Illinois. On the trial he made title under a patent from the United States to oue Leonard for the lot in question, dated 20th February, 1868.
The defendants claimed title under a sale of the lot for taxes in 1843 under the laws of Illinois, in consequence of the non-payment of the taxes laid in 1839. But as public lands cannot be taxed, it was necessary for the defendants to show that the government title was extinguished prior to 1839. To do this they gave in evidence, from the records of the General Land Office, an exemplified copy of a military land warrant for 160 acres of land issued to Giles Egerton, in December, 1817, a location thereof in his favor upon the lot in question on the 10th of Jauuary, 1818, and a patent to Egerton for the same lot dated on the same day. But on the margin of the exemplified copy of the patent was a memorandum, copied as follows, viz.:*
“This patent was issued for the S. E. quarter instead of the N. E. quarter, as recorded; sent certificate of that fact to E. B. Clemson, at Lebanon, Illinois. See his letter of 19th May, 1826.”
The defendants did not offer this memorandum in evidence, and objected to its being read, but, at the instance of the plaintiff, it was allowed to be read to the jury.
* The word " indorsed,” in suid memorandum, was in red ink. rest of the memorandum in black ink. VOL. XVII.
Statement of the case.
The defendants then gave in evidence a deed dated July 29th, 1819, from Giles Egerton to one Thomas Hart for “the southeast quarter of section 18,” &c., closing the description as follows:
“Which quarter-section was granted to the said Giles in consideration of his military services, as will appear by a patent obtained from the General Government, dated the 10th day of January, 1818."
[The defendants contended that the word “southeast” in this deed was written by mistake, and should have been “northeast.”] They further adduced (and in support of this view) an exemplified copy of a patent from the United States to one James Durney (another soldier), dated January 7th, 1818 (that is to say, three days before the alleged grant to Egerton), for this southeast quarter of section 18.
The plaintiff in rebuttal gave in evidence deeds for the southeast quarter-section as follows: from Thomas Hart to Samuel Hunt, dated 12th May, 1821; from Hunt to E. B. Clemson, dated 7th April, 1825; and from Clemson to John Shaw, dated 20th October, 1829; the two former being regularly recorded; the last not recorded. The plaintiff then gave in evidence an act of Congress, approved March 3d, 1827, entitled “ An act for the relief of the legal representatives of Giles Egerton,” by which it was enacted that the legal representative or assignee of Giles Egerton be “authorized to enter with the register of the proper land office, any unappropriated quarter-section of land in the tract reserved, &c., in lieu of the quarler patented to the said Giles on the 10th day of January, 1818, which had been previously patented to James Durney, and upon such entry a patent shall issue to such representative or assignee for the quarter-section so selected.” The plaintiff' then proved that John Shaw entered another loť in April, 1838, in pursuance of this act. To all this evidence offered by the plaintiff in rebuttal the defendants objected
It thus appeared from the records of the land office (barring the memorandum in the margin of the patent), that the
Argument in support of the ruling.
norlheast quarter of section 18, which was the lot in question, had been regularly entered under a valid land warrant, and regularly patented; but it also appeared that the patentee, either by mistake of the scrivener or from some other cause, had conveyed to a third person the southeast quarter of the same section, as the lot so patented; and that the subsequent conveyances copied this description. Also that one of the subsequent grantees, several years afterwards, finding the southeast quarter embraced in a prior patent, got leave from Congress to enter another lot in the place of it, and did so.
This was all the evidence in the cause. The patent itself was not produced ; nor did it appear what had become of it.
The court instructed the jury, that the defendants had not shown outstanding title to the lot in question, either in Giles Egerton or in any one claiming under him, and that the plaintiff was entitled to recover. To this charge the defendants excepted.
Mr. Horatio C. Burchard, in support of the ruling below :
Four independent facts seem to show that although Giles Egerton was entitled to receive upon his location a patent for the northeast quarter, the patent he actually received was for the southeast quarter.
1st. The marginal entry on the record. 2d. The recitals in Egerton's deed to Hart. 3d. The conduct of the subsequent grantees. 4th. The recitals in the act of Congress of March 3d, 1827.
1. The marginal entry. This was undoubtedly written upon the face of the record. It has stood there since 1826; nearly fifty years. It cannot be presumed to have been made without the authority or sanction of the officer having charge of the records; the Commissioner of the General Land Office. It was there ou record, and upon the page of the record of the alleged patent, when the commissioner, in 1868, made the exemplified copy of the record offered in evidence below. He had no right to separate then. They were the record as he found it.
Argument in support of the ruling.
- 2. The recitals in Egerton's deed. Egerton declares in his deed to Hart that it will appear by his patent, obtained January 10th, 1818, that the southeast quarter of section 18, &c., was granted to him in consideration of his military services. He doubtless then had in his possession the patent actually issued to him on the 10th of January, A.D. 1818, and from it himself drew, or the scrivener for him, the deed to Hart. The deed itself supports this conclusion; it contains internal evidence of the fact. The description of the tract, the reci. tals of Egerton's title and consideration for which he obtained a patent, and date of its issue, must have been taken from the patent. The particular quarter-section upon which à bounty land warrant should be located in a military tract was then determined by lot, and not by selection, as at present.* The soldier held no certificate of location. His patent was the only evidence furnished him as to what tract he had become the owner of.
3. The conduct of Egerton's grantees. It is evident that there was a mistake in the patent to Egerton, as intended to be issued, or in the deed from him to Hart, and in the mesne conveyances from Hart to Shaw. If the successive deeds followed the patent, each purchaser inspecting the title-papers of his grantor would have no occasion to question the validity of the title he was about to acquire, When, however, it appeared that an elder patent had been issued to Durney for the southeast quarter, it behooved the last grantee, tracing title to that tract through Egerton, to examine his title-papers and ascertain and have rectified any mistake occurring therein. To do this required a comparison of deed with prior deed and with the patent. If a misdescription bad occurred in any mesne conveyance, or in the deed from Egerton to Hart, the mistake would have been sought to be corrected by a new deed from Egerton, or a bill in chancery bad he refused to execute one. The conduct of the parties—the grantees of Egerton-shows that vo mistake was discovered in the deeds, and no variance in them from
* Act of April 29th, 1816, Land Laws, vol. 1, p. 702.