Nims v. Johnson

Murray, C. J., delivered the opinion of the Court—Terry concurring. When this cause was here before, we held that the act of May 3, 1852, commonly known as the “ school-land act,” did not conflict with the act of Congress of 1841, and that it was competent, in this respect, for the Legislature to determine what should constitute evidence of title between the citizens of this State. This point is again presented, but we are indisposed to review our former opinion. There are but three assignments of error which it will be necessary to notice. First, that the court erred in admitting evidence of location of the school-land warrants, because they were recorded by the county recorder, instead of the county clerk, as directed by law. This would be good ground of reversal, if the fact anywhere appeared. The appellant has not prepared a statement on appeal from the final judgment, and although there is a statement on motion for new trial, which is sufficient so far as it goes, it does not contain the evidence complained of. The only reference to it, is in the objection to the introduction of the land warrants on this ground, but it is not shown in fact, either by setting out the acknowledgments, or by the agreement of parties, that they were filed with the county recorder, and wo cannot presume such was the case, simply because the appellant objected to their introduction on this ground. The second error relied on, is the refusal of the Court to per [113] mit the witness to testify whether the land in question was mineral land. The act of May 3d, 1852, makes no reservation of mineral lands, and a party is not prohibited, either by that law or any other, that we are aware of, from locating school-land warrants on any mineral lands of the state. The third assignment of error is untenable. It was shown that the judgment-book, containing the record of the judgment in the former suit, was not destroyed. Under these circumstances, it would have been improper, even admitting it could be done, to have admitted parol evidence of the pleadings and issues between the parties, unless the appellant had also been prepared to introduce a certified copy of the judgment. Judgment affirmed.