Gray v. Givens

Richardson, Judge, delivered the opinion of the court. It appears from the record that a New Madrid certificate, No. 453, was issued by the recorder October 6th, 1818 — by which William Cox, or his legal representatives, was entitled to locate six hundred and forty acres on any of the public lands, the sale of which was authorized by law, in lieu of a like quantity in New Madrid county which had been injured by earthquakes — and was located the day it was issued on section 9, township 48, range 16 west. As a preliminary to the other questions in the case, it is proper, first, to determine, as a matter of fact, when the plat and survey of the location were returned to the recorder. The record further shows that in May, 1854, a plat and description of the survey of this location were made in the office of the surveyor of Illinois and Missouri, without an actual survey on the ground, but from materials which had been in the office, and no doubt in the land department at Washington, for more than thirty years ; for, in the caption to the plat, it is recited “ that the boundary lines of this tract, as hereby described, are ascertained from the field notes of the subdivision of the survey of the said township surveyed by Wm. Y. Rector, deputy surveyor, in the month of January, 1817, under his contract with the surveyor of lands in the United States in the territories of Illinois and Missouri, dated 18th October, 1816, and its connections with the adjoining private claims — Nos. 2807, 2869, and 2878 — from the field — 299 — notes of the survey thereof as executed in May, 1819.” The patent was issued March 6, 1855. As a part of the plaintiffs’ documentary evidence there appears, properly certified, this paper : A list of patent certificates prepared for issue by tlie recorder of land titles, under the act of Congress of 17th February, 1815 (and the supplementary acts), for the relief of those inhabitants of the county of New Madrid who suffered by earthquakes : The fact that a plat of this location was constructed in the surveyor’s office at St. Louis in 1854 does not repel the presumption that one had previously been made and returned to the recorder in 1820; and we think this transcript from the recorder’s office of the list of patent certificates furnishes conclusive evidence that the plat and survey of this location were returned to him March 9th, 1820, and that the record from which the transcript was taken is of equal dignity to a patent certificate. The second section of the New Madrid act makes it the duty of the' principal deputy surveyor of the territory of Missouri to return a plat of each location made to the recorder, together with a notice in writing designating the tract located and the name of the claimant on whose behalf the same was made. This is the only means provided by law by which the recorder officially obtains information that a location has been made; and when he is thus furnished with the necessary information of the lands selected, and the name of the claimant, it is made his duty, by the third section, to give to the party a patent certificate. It appears here that the recorder, on the 9th of March, 1820, prepared a patent certificate for the claimant of this location, which he numbered and entered in the tabular list kept in his office. To suppose, then, that this record was made by the recorder, without the proper information which the law requires to be — 300 — in his possession before making it, would require the assumption that he had violated his official duty, and committed a fraud. The usual evidence in actions of ejectment on New Madrid locations, of the return of the survey to the recorder, is the patent certificate, or the extract, like the one in this case, from the tabular list kept in the recorder’s office ; and we are unwilling to deviate from a rule of evidence so long acquiesced in. Assuming, then, that the survey was returned to the recorder in 1820, the inquiry arises, as a starting point for the running of the statute of limitations, whether it began in 1820, or at the emanation of the patent in 1855. Our statute permits an action of ejectment to be maintained on a New Madrid location, and as a general rule limitation will begin to run from the time a cause of action accrues, and a suit may be maintained. The Supreme Court of the United States decided, in Bagnell v. Broderick, 13 Pet. 448, and Barry v. Gamble, 3 How. 51, that the land was appropriated and severed from the public domain when the plat and survey of location were returned to the recorder, and afterwards in Lessieurs v. Price, 12 How. 74, reasserted the doctrine and held that when the return was made the applicant became entitled to the land, and the land which he had abandoned vested in the United States. In Cabanné v. Lindell, 12 Mo. 184, the question was whether the limitation began from the time of notice of the location to the surveyor or from the time of the return of the survey to the recorder ; and on the ground that the title did not vest, according to the authority of Bagnelle v. Broderick, until the survey was returned, it was decided that limitation did not commence until that time. Since then the question has been at rest, and it has been understood as the law of the state that limitation begins to run on a New Madrid location in favor of an adverse possession when the survey has been returned to the recorder. In many cases patents for New Madrid locations have not yet been issued, and if parties claiming under them do not apply for them they never will be issued ; and it would be singular if — 301 — in such cases there is no limitation, though there is title and a right of action. No case has been decided by this court, of which we are aware, that gives color to the idea that the statute of limitations is suspended in favor of a New Madrid location until the patent issues, and we do not think that the plaintiffs’ argument is supported by the cases to which we have been referred. In Chiles v. Calk, 4 Bibb, 554, it does not appear that the plaintiff had a right of action until the patent issued. The plaintiff, in Lindsay v. Miller’s Lessee, 6 Pet. 666, exhibited a patent dated in 1824, which was founded on an entry and survey executed the same year, and he had no cause of action until that time; and though the defendant had been in posssession for more than thirty years under an older patent from the state of Virginia, it was decided that his patent' was void, and that the statute of limitation did not run against the state, and therefore did not begin, to run against the plaintiff until he had a right of action. The argument in Duke v. Thompson, 16 Ohio, 34, puts the case on the ground that no action at law or equity could be maintained upon an entry under a Virginia military warrant until a patent had been issued; and it was observed by the judge who delivered the opinion of the court, that “ it was not until 1841 (the time the patent issued) that the complainant could prosecute the claim.” Cochran v. West, 17 How. 414, does not relate to this subject; it only decides that a confirmation under the act of 1807, to be designated by a survey, attached to no land until the survey was made. It is insisted that as the fee remained in the United States until the patent was issued in 1855, it would be an interference with the primary disposal of the soil to apply the statute of limitations to the plaintiffs’ title before the emanation of the patent. (Const. of Mo. art. 10, sec. 1.) The provision in our constitution which denies to the general assembly the right to interfere with the primary disposal of the soil by the United States was suggested by the proviso in the fourth section of the act of Congress authorizing the people of the territory of Missouri to form a constitution and state govern — 302 — ment. This act was preparatory to the withdrawal of the sovereignty of the United States from the territory of Missouri, and to the inauguration of a new sovereign by the establishment of the state government; and as the public domain, by a principle of national law, worrld otherwise have passed to the local sovereign, we suppose the object of this compact was to save the public lands from the operation of this principle, and to preserve to the United States their proprietary interest in them, with full power to dispose of them as they thought proper. This state, with full recognition of the United States as the fountain of title to the public lands, has the right to preserve the peace among her own citizens who occupy them, and to adjust in her own courts conflicting interests and disputes that arise between claimants who derive title from the federal government; and, regarding the United States as having the absolute and primary right to dispose of the soil, our courts have asserted the undoubted right to declare the holder of a patent obtained by fraud a trustee for the owner of the equitable title and thus cause a patent issued to one person to enure to the benefit of another. (Smith v. Stephenson, 7 Mo. 610; Carman v. Johnson, 20 Mo. 100.) It was decided in Carroll v. Safford, 3 How. 441, that land entered, for which the purchaser held only the receiver’s certificate, was liable to be taxed and sold by the state for the public dues on it, though the patent had not been obtained ; and that the exercise of this power by the state was not “ an interference with the primary disposal of the soil.” In such case the purchaser has not the legal title, but, having made the entry and paid for it, the United States could no more sell it to another than if the patent had been issued, and the purchaser at the tax sale would acquire the equities of the owner, and the patent, when issued, would enure to his benefit. There is no pretence that the plaintiffs had title to all the land sued for and recovered. At most they only made a prima facie case for an undivided interest, and yet, under the instructions given and refused, the court held, if they could — 303 — recover at all, they were entitled to recover the whole.N It was formerly held, that a plaintiff in ejectment could not recover an undivided part when he claimed an entirety ; (Carroll v. Norwood, 5 Har. & J. 155;) but this strictness. no longer prevails ; and though a plaintiff may recover less than he claims, it is apprehended that he can not recover more than he shows title to. But it is said that though this is the general rule, there is a difference when the defendant is a stranger to the plaintiff’s title, and that as to him one tenant in common, though entitled to only a part, may recover the whole, and when he is put into possession will hold for the other tenants in common as well as for himself. At common law tenants in common could not recover on a joint demise, and “ as the right of possession, which depends on title, is several, a recovery by one will restore him only a moiety of the possession against the disseisor, who will hold the other moiety with him in common.” Our statute permits tenants in common to join, but there is no use in this if one can recover for the others; and if this is the law, A. may recover for B., though B. could not recover for himself. It often happens that one tenant in common is barred by limitation when the other is not, and a title may be acquired by adverse possession. (Biddle v. Mellore, 13 Mo. 335.) The defendant will prevail against one when he can not against the other. But this would amount to nothing if the plaintiff not barred and claiming but a fractional interest can recover for the other against whom the defendant might have title by lapse of time. The plaintiff who claims and recovers the entirety, though entitled only to an undivided interest, will not generally, after he has been put into possession of the whole, share his good fortune with his co-tenants, especially if they are barred by limitation; and the practical result will be that he will keep all, though he has been permitted to recover on their account. Judge Napton concurring, the judgment will be reversed, and the cause remanded.