Heirs of Kirk v. Heirs of Green

Scott, J., delivered the opinion of the Court. This was an action of ejectment brought by Green vs. Kirie, for the recovery of a tract of land in Cooper County. Greene obtained a verdict and judgment, and the Court having refused Kirk a new trial, he has brought the cause to this Court. William Coxe was the owner of a tract of land in New Madrid County, which was injured by earthquakes. For the land thus injured, under the act of Congress for that purpose, the tract of land in controversy was selected under a certificate of location, dated 6th October, 1818. The certificate was to William Coxe or his legal representatives. No patent for the land in dispute has been issued. There was evidence that William Coxe, prior to the date of the New Madrid location, had [254] conveyed his interest, in the land injured, to others. Green, the plaintiff and appellee, claimed under deeds from the heirs of William Coxe, who had departed this life. Under this state of facts, was Green entitled to recover ? The certificate of location on which the action is brought, is to William Coxe, or his legal representatives. When this Court held in the case of Wear and Hickman vs. Bryant, 4th Mo. Rep. 113, and 5th Mo. Rep. 154, that a New Madrid certificate to a purchaser or his legal representatives, was a valid instrument, it went far in determining this controversy. The decision of the Court in the above cause is in conformity to the practice of the officers of the General Government, to whom the disposition of the public lands belongs. The proper construction of the instrument, in the opinion of this Court, and the General Government, was, that the land was given to the first named purchaser at the time of the grant, if he at that time was the owner of the land, in lieu of which, the authority to make a new location was given. If he was dead and had not disposed of ttíe land, it went to his heirs, but if he had aliened it before the grant, then his alienee, and those claiming under him, took the land by virtue of the words “ or legal representatives,” in the instrument, as the first original purchaser. It was considered as a common law grant to him who may be the owner of a particular piece of property at the time of the execution of the grant, such a designation of a grantee in a deed not being so uncertain as to render a conveyance void. If, then, the words of the certificate, “ legal representatives,” are considered in the event of the first named taker having disposed of his interest, as designating the first original purchaser, it must follow, that Coxe, having conveyed his interest in the injured land in New Madrid, before the certificate issued, then he had no title to it, and a conveyance by him or his heirs of the located lands would be as ineffectual as though he were not named in the grant. In the case of Montgomery and wife vs. Landusky, it was held that a certificate to the legal representatives of one, who before the certificate issued had sold the lot, would not operate to the benefit of the heirs of the person named. 9 Mo. Rep. 71.4. We do not see how any question arises under the act of February 11th, 1839, supplementary to the act concerning ejectment. Our statute authorizing an action on a New Madrid location, the only question presented is, who is the owner of the title conferred by the certificate of location. The defendant set up no outstanding title, legal or equitable, but confines himself to showing that the instrument, which is the foun [255] elation of the plaintiff’s action, confers no title, legal or equitable, on those under whom the plaintiff claims. The other Judges concurring, the judgment will be reversed, and the cause remanded.