— This is a suit in ejectment by plaintiff, to recover the nw qr. of the se qr. of Sec. No. 35, in township 48 and range 24 in Johnson county.
The defendants make an equitable defense, stating in *82their answer, that, on the 19th of July, 1854, one B. F. Dunkley, under whom they claim, entered the land in question at the United States Laud office, at Clinton, Missouri, paid the purchase price, and received from the receiver of the land office, a receipt for fifty dollars, the amount of the purchase money, in which it was stated that it was the consideration money for the land in question, and that he, thereupon, immediately took possession of said land, and continued in possession thereof, until he conveyed it to defendants, who have been in possession ever since the conveyance to them. They further allege, that when Dunkley entered said land, the register of the land office at Clinton made due entry of such fact upon the records of said office, and thereafter evidence of such entry was kept at the land office at Boonville, Missouri, and in the office of the recorder of deeds, and county clerk’s office for Johnson county; that after said entry by Dunkley, the building in which the land office was kept at Warsaw, Mis- j souri, to which place the office had been removed from Clinton, was consumed by fire, together with all the records plats and plat-books of the government pertaining to the land office in said land district, and that afterwards, either by mistake or otherwise, the records manufactured for and supplied to said land office, after the fire at Warsaw, erroneously “exhibited, that the tract of land in controversy, was vacant and unentered,” and that said Dunkley had entered other and different parcels in said section, but not the nw qr. of the se qr.; that said Dunkley and defendants were ignorant of such false entries, until informed by plaintiff that he had entered said land. They charge that plaintiff, when he entered said land, knew that defendants were living on and cultivating £he same, and that Dunkley had entered the land. Plaintiff, in his replication, denied the allegations in defendant’s answer. The court, after hearing the evidence, found for defendant and rendered a judgment accordingly, from which plaintiff has appealed.
The main questions to be considered are:
*831st. Did Dunkley enter the land in controversy in July, 1854?
2d. If he did, had plaintiff notice of that fact, or of such facts, as in equity are equivalent to notice of that principal fact?
The evidence relied upon by defendants to establish the entry of the land by Dunkley in 1854, is oral, and must be of sufficient weight to overcome the record evidence to the contrary, furnished by the plat-book of the land office at Warsaw, the record of the land department at Washington and the patent of the United States issued to plaintiff’, before a court of equity would be warranted in holding plaintiff’ as a trustee for Dunkley or his grantees. It appears, from the evidence, that the office was taken from Clinton to Warsaw, where the records of the land office for that district were consumed by fire, but when the office was afterwards moved to Boonville, these records were supplied from the general land office at Washingtons which showed the land in question to be vacant.
The records of entries of land in the several land districts are made at the general land office, from monthly and quarterly reports of the registers and receivers, and •from duplicate receipts for land entered, forwarded by the land district officers to the general land office. The register and receiver of the land office at Clinton certified to the general land office the entries made in July, 1854, and the tract in question was not embraced in that monthly report, or in any monthly or quarterly report made from July, 1854, to September, 1871, when the patent for the land was issued to plaintiff'. We have said that the records of the land office at Clinton furnished evidence that the land in question had not. been entered. It is true, that Faulk, a witness for* defendants, testifies that he saw the register at the land office, when he entered the land for Dunkley, write the name of B. F. Dunkley on the plat-book, on the space which indicated the tract in question, and that Keen, another witness for defendants states, that *84in the latter part of September, 1854, he went in person to the land office at Clinton, and entered eight forty acre tracts in section 35, and then saw on the plat-book of said land office, the tract in controversy, marked as “ entered.”
On that plat, the ne qr. of the se qr., of section 35, was marked as entered by Dunkley. In November, 1854, a patent was issued to Dunkley for the ne qr. of the se qr. Dunkley testified that he never entered that forty. The plat-book at Boonville also showed that forty entered by Dunkley. If he did not enter that, instead of the nw qr.' of the se qr., and it be true, as Keen and Faulk stated, that the plat-book showed the latter as entered by Dunkley, how did it happen that both the ne qr. and the nw qr. were marked on the plat-book as entered by Dunkley? And how did the alteration on the plat-book afterwards occur, showing the nw qr. of the ne qr. vacant? No conceivable motive for making such an alteration can be ascribed to the officers of the land office, for neither of them, nor any one connected with them, profited by the alteration, and the land for years after, appeared vacant on the plat-book. These witnesses are testifying from memory, to facts contradictory of record evidence, and their ’testimony to overcome it, should be of the most unquestionable and conclusive character. Mr. Keen says that he knew that Dunkley desired to enter this tract of land. He knew that his brother-in-law, Faulk, went to Clinton to enter it for Dunkley. He knew that Faulk was very familiar with the land in that section, and the boundaries and corners of its subdivisions, and that when Faulk returned, Faulk showed him the duplicate receipt, which he read and remembers, that it showed the entry of this identical forty. He says it also showed that it had been entered for Dr. Dunkley by Faulk.
The duplicate receipt for the purchase money for the ne qr. of the ne qr. forwarded to the General Land Office from the Clinton office, read in evidence by plaintiff, does not show that Faulk had any connection whatever with *85the entry ; and it will be borne in mind that defendants’ theory is that the tract was embraced in the duplicate sent to Washington instead of the tract in controversy. When Keen testifies, after the lapse of twenty-three years, to the contents of that duplicate shown him by Eaulk, it is charity to suppose that he has mistaken the impression made upon his mind, by his knowledge, that Dunkley wanted to enter that tract, and that Eaulk went to enter it for him, for a recollection that the duplicate described the land in controversy. Eau'lk’s testimony, that he saw the register mark this tract on the plat, as entered, is contradicted by the record. That he saw him mark a tract as entered on that occasion, we have no doubt, but in the light of other facts, which are indisputable, we are satisfied that it was the ne qr. of the ne qr. that was so marked, and that the witness is mistaken. The register did not then mark two tracts as entered, and in about two months from the date of that entry the patent for the ne qr. of the ne qr. was issued to Dunkley. Dunkley testifies that his receipt is lost or mislaid, but is positive that it described the tract in controversy. He, too, testifies from memory, as to the contents of that receipt.
The clerk of the county court of Johnson county testifies that the land in question was assessed to Dr. Dunkley from 1867 to 1874, inclusive, and never before 1867, and that the ne qr. of the nw qr. was assessed to him from 1856, two years after his entry, to 1874, a period of eighteen years, and that he paid the taxes thereon for 1878 and ’74. It does not appear whether he had paid taxes before 1873. How did it occur that the ne qr. of the nw qr. was assessed to Dunkley as early as 1856, and down to 1874 ? Either Dunkley gave it in to the assessor as his land, or the assessor ascertained from the records in Johnson county, that Dunkley owned it. In 1866 a certificate was procured from the land office at Boonville, and kept afterward in the recorder’s office of Johnson county, showing that Dunkley entered the nw qr. of the se qr. July 19th, 1854, *86ancl for tbe first time in tbe following year, it was assessed to Ur. Uunkley. That this certificate so procured from the Boonville land office was untrue, is shown by certified copies of tbe Boonville plat-book, and tbe records of tbe general land office at Washington. From tbe fact that tbe ne qr. of tbe se qr. was assessed to Uunkley in Johnson county, where be resided from 1856 to 1874, and that tbe nw qr.'of tbe se qr. was not assessed to him, it is a fair inference, either that prior to 1866 there was in tbe recorder’s office of Johnson county a certified copy of tbe plat-book of tbe land office, showing that Unnkley owned that land, and not showing that be owned tbe land in controversy, or that be included the former tract in tbe list of lands owned by him, given by him to tbe assessor.
To sustain tbe issue for defendants, on this branch of tbe case, we are.to find that at least three mistakes and one crime were committed by tbe register or receiver of tbe land office at Clinton and Warsaw.
1st. A mistake in tbe duplicate retained at tbe office, of tbe receipt given to Uunkley for the land be entered, in tbe description' of tbe land sold to Uunkley.
2d. That mistake having been carried to the plat-book, was afterward corrected by marking as entered, tbe tract in question, and tbe register, by mistake, failed to erase tbe remark “ entered ” on tbe ne qr. of tbe sw qr., and permitted it to remain marked as “ entered.”
3d. In reporting the lands entered in July, 1854, to tbe general land office, a mistake was again made as to tbe tract entered by Unnkley, and tbe ne qr. of tbe sw qr. reported as entered by him; and tbe crime committed was •in subsequently allowing the plat-book to make it show tbe nw qr. of tbe sw qr. vacant.
On tbe other band, that Faulk made a mistake and applied to, and did enter tbe.ne qr. instead of tbe nw qr. of section 35, solves the whole difficulty, and is established, we think, by a preponderance of evidence. From tbe facts thus stated, what is the conclusion ? Clearly, that while *87Dunkley may have desired to enter the tract in question, and Faulk may have intended to enter it for him, he made a mistake at the land office, and applied for, and entered the ne qr. of the nw qr. instead. If this be a correct conclusion from the evidence, it settles the controversy in favor of the plaintiff.
But suppose it be true that Faulk, for Dunkley, did enter this very tract, and the officers and agents of the government gave him a receipt for the purchase money for the identical tract, but made a mistake in the duplicate retained by them, and .described another tract, and carried that mistake into the plat-book, is there sufficient evidence in this record to charge plaintiff with notice of these facts ?
It is alleged in the answer of defendant that Dunkley, immediately after his entry of this land in 1854, took possession of it. The evidence shows conclusively that he did not take actual possession until 1871. He testifies that it was-not inclosed until 1871; that the first crop raised upon it was in 1873. He had no actual possession until 1871, and no constructive possession prior to 1871, for the title remained in the government of the United States. If he had been in actual possession, claiming title, a very different question would have been presented on this branch of the case from that we have to deal with. Plaintiff might then have been put upon his inquiry, and affected with notice of Dunkley’s equity against the government. But what are the facts relied upon as constituting notice to plaintiff? That he knew that Dunkley claimed the land, and that in a conversation with Faulk, after plaintiff had received his patent for the land from the government, he remarked to Faulk, who was proceeding to give him an account of the entry made by him for Dunkley in 1854, that he knew that Dunkley intended to enter this tract, but made a mistake and entered the other forty. Now, what knowledge did that remark imply ? That Dunkley had entered the nw qr. of the se qr.? and that is the knowl*88edge he must have had to hold him as a trustee. On the contrary, it implies that he knew that Dunkley, instead of entering that, had entered the other tract. Did the knowledge of the fact that Dunkley claimed the land, impose upon the plaintiff, before he could acquire a title from the government, the duty of going to Dunkley to ascertain what title he had, and affect him with notice of any equity he may have had against the government ? Take the facts as they are clearly proven. The records of the land offices of the government, both at Boonville and Washington, showed this land to he vacant. A purchaser goes to the office at Boonville, knowing that an individual, not in possession of the land, claims to own it, and then finds that it is vacant and subject to entry. What could he have learned from Dunkley, if he had gone to him, and Dunkley had told him the whole truth ? Certain facts resting in his memory, contradicting the records of the general and local land offices, and he not in possession' of the land ho claims to have owned since 1854, but claiming the very land which he says was reported by mistake or fraud, as the laird he entered; for permitting it to be assessed to him annually for seventeen years, amounted to asserting ownership; and this, it is insisted, makes the patentee a purchaser at his peril, and a trustee for the plaintiff.
It is evident - that if Dunkley intended to enter, and Eaulk for him did enter the nw qr. of the se qr., and by mistake it was not so entered upon the plat-book, or reported to the general land office, yet the ne qr. of the nw qr. was certainly with his knowledge, assessed to him from 1856 to 1874, and for seventeen years he must have been apprised of the fact: that this mistake had been made, and not until plaintiff had entered the land tlid he make complaint, or take any steps to have it corrected. His own testimony shows that he knew that he had not purchased the ne qr., but had purchased the nw qr. The ne qr. was assessed to him for thirteen years, and for no year in that period had the nw qr. been assessed to him. Is he not to *89be taken to have acquiesced? Shall he, for seventeen years hold the ne qr; have it assessed to him, pay taxes on it for 1873 and 1874, and then claim that there was a mistake, and, in a court of equity, have the purchaser from the government of the tract he intended to enter, divested of his title, on the evidence preserved in this record? ¥e think not, and the judgment is. reversed and the cause remanded.
Judges Sherwood and Hough concur.Reversed.