Sensenderfer v. Smith

Napton, J.,

Dissenting. — This was an action of ejectment for the nw qr. of the se qr., of Sec. 35, T. 48, R. 24. The suit was brought in the circuit court of,Johnson county in 1873 — it was tried in 1875. The plaintiff's title was a patent for the land issued on the 15th of September, 1871. The defense ivas, that one Dunkley, the father of Mrs. Smith, &c., the nominal defendants, bought of the United States, at the Clinton land office, this same piece, on July 19th, 1854. The' defendants, therefore, asked the court that the legal title acquired by the plaintiff in 1871 be divested out of him and vested in the defendants.

After hearing all the testimony in the case, the circuit court made a decree in conformity to the prayer of the defendants, and from this decree the plaintiff appeals to this court. The testimony in this case is voluminous and presents a state of facts not easily accounted for, and has, therefore, from the importance of the principle involved, and the unusual and sigular discrepancies occurring in the records of the United State Land Offices at Clinton, and Warsaw and Boonville, and of the general land office at Washington, been examined with care, although the result reached is not one in which all the court is agreed.

It is hardly necessary for me to repeat the testimony offered by the defendant to establish the fact that, on the 19th of July, 1854, he entered at the land office at Clinton the nw qr. of the se qr., S. 35, T. 48., R. 24, and received a certificate from the United States officers to that effect. If *90any reliance is to be placed on Iranian testimony, that fact is established beyond doubt. Dr. Dunkley sent the money by Capt. Eaulk to enter the piece of land, and Eaulk swears he entered it and received the receiver’s receipt, and Mr. Keen, who was in Clinton shortly afterward, testifies that he saw this 40 marked entered on the plats in the office. Dr. Dunkley testifies that he received the certificate for the piece of land now in controversy. All these witnesses were perfectly familiar with the land in question, and knew the boundaries of all the land in the section, and the quarter now in dispute was in the center of Dr. Dunkley’s land. I am satisfied that in 1854 Dunkley entered and paid for this piece of land and received a certificate of the officers at Clinton to that effect.

The question, however, upon which I have had doubts is, whether the plaintiff, who obtained a patent for the land in 1871, was so far affected with notice, or so far put on inquiry, as to authorize the court to hold him responsible for mistakes made by the United States officers. He admits in the conversation reported by Eaulk, to whom he applied after his purchase to act as agent for him, that “ Dunkley intended to enter it, but made a mistake and entered the 40 east of it.” The plaintiff proceeded to give Eaulk a history of the way he had become acquainted with the vacancy, that he had been for two years a clerk in the land office at Boonville, and in that way became acquainted with the error, or the fact that Dunkley had not entered it. He then stated that he prosecuted the examination to Washington, and spoke of an assistant he had there, and became satisfied that the land was vacant. In other words» his examination of the records at Boonville and Washington satisfied him that Dunkley was mistaken in supposing he had entered the sw qr. of the se qr., of Sec. 35, that the officers in the land office were not mistaken, but that Dunkley was, and that he had really entered the ne qr. of the sw qr., of Sec. 35. He therefore concluded to follow the decisions of the government officials at Washington, *91but subject of course to any judicial investigation, which, might determine that the government officials were wrong and that Dunkley was not mistaken.

The plaintiff purchased with a full knowledge of Dunkley’s claim but relying on the records at Washington that such claim would not be available. And if the records at Washington are conclusive and cannot be contradicted by parol evidence, however satisfactory, the plaintiff was not mistaken. It is the necessary result of the conclusion that I have reached, that Dunkley did enter the nw qr. of the se qr., of See. 35, in July, 1854, that the officers at Clinton must have erroneously reported to Washington, that Dunkley entered the ne qr. of the se qr. of Sec. 35. In other words, the duplicate sent to Washington was erroneously reported as an entry of the ne qr. of the se qr., and therefore a patent was issued Dunkley in the fall of 1854 for the ne qr. of the se qr., of Sec. 35. But in September, 1854, the records at Clinton showed that the nw qr. of the se qr., of See. 35, was entered, and that the ne qr. of the se qr. was vacant, and therefore Mr. Keen was allowed to enter and did enter the ne qr of the se qr., of Sec 35. The plats at Washington showed that the ne qr. of the se qr., of Sec. 35, was entered by Dunkley in July and by Keen in September; that there was a mistake in these plats was obvious. The officers of the government, however, concluded to issue a patent to Dunkley, whose entry was prior in date to Keen’s so far as these records showed.

They knew that the United States could not sell the same piece of land twice, and that there was a mistake in the record of the first or second entry. Their conclusion, however material, that the first buyer was entitled to a patent, ’ depended upon a question of fact which they had no authority to determine. As it appears now from evidence entirely satisfactory to me, Dunkley had not enterered in July the ne qr. of se qr. of 35, but had entered the nw qr. The plaintiff bought on the assumption that the *92United States officers were right and that Dunkley was wrong. The question as to who was right and who was wrong was one for judicial determination, and the plaintiff made his purchase in view of this, and upon a conclusion he had reached that Dunkley was mistaken, and that the plaintiff could safely rely on the records at Boonville and Washington. Upon the assumption that the officers were mistaken, and that Dunkley was right, the plaintiff could, of course, acquire no'title in 1871.

It appears that the land office at Clinton was removed to Warsaw, and that after its removal the office and all its records were destroyed by fire in 1861. This fact would not be material if the officers at Clinton correctly reported, as by law they were required to do monthly, the entries at Clinton. But the testimony shows beyond all doubt tbat on July 19th, 1854, Dunkley entered the nw qr. of the se qr. of sec. 35, and of course, that the duplicate sent to Washington that he had entered the ne qr. of the se qr., of See. 35, was a mistake. The plaintiff, when he purchased in 1871, was apprised that the vacancy in the nw qr. of the se qr. of sec. 35, as it appeared on the books, was a matter in dispute, as the two entries of the ne qr. in July and September clearly indicated. ' He thought proper to rely on tbe duplicates sent to Washington. It turns out upon investigation that they must have been false.

My opinion is, therefore, that the judgment of the circuit court was right,

and in this opinion Judge Norton concurs.