Michel v. Davis's Heirs

Bullard, J., delivered the opinion of the court. The plaintiff in this case sues for a partition of a tract of land, which he alleges he holds in common with the defendants. There was judgment in his favor and the defendants appealed. They allege, in their answer, that they are proprietors of the whole tract. The plaintiff derives title from John Fridge, who sold him one undivided half of a tract of land of six hundred and forty acres, claimed by him, in virtue of a commissioner’s certificate. He further presents a document signed by the [154] plaintiff, and David Davis, the ancestor of. the defendants, in which they represent themselves as joint owners of the section of land in question, and ask of the land commissioners an order of survey. This evidence is further fortified by the fact, that Davis was not himself an.original settler, but purchased only part of a section, and claimed a certificate as assignee. It further appears, that he united with the present plain tifij in the defence of an action brought against them jointly for the same land. In an action of partition, in which the plaintiff claims to be joint owner of one-lialf of the land, the joint petition of him and defendant to the register and receiver, claiming the same land, and their joint answer to a suit against them for it, are admissible in evidence to show the repective rights of the parties. The apparent confusion in this case.has arisen.from the admitted fact,' that two certificates were issued for the same improvement, but afterwards one of the certificates appears to have been lost sight of, or merged in the others, and only six hundred and forty acres surveyed for the two claimants. We are of opinion the court below did not err in permitting to be read to the jury, the joint petition of the plaintiff and Davis to the register and receiver, for a survey of the land, and their joint answer in the suit of Bergel against them. Both tend to show that the parties regarded each other as joint owners of the land. The plea to the jurisdiction of the state court, was properly overruled. So far as the register and receiver had a right to take cognizance of the question between the parties, they appear to have decided that they were entitled each to one undivided half of a section.. It is, therefore, ordered, adjudged.and.decreed, that the judgment of the District Court be affirmed, with costs.