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December 1, 1872


IN error to the Circuit Court for the Southern District of Illinois; the case being thus: Wirth brought ejectment against Branson and another for the recovery of the northeast quarter of section 18, in a certain township in Fulton County, Illinois. On the trial he made title under a patent from the United States to one Leonard for the lot in question, dated 20th February, 1868. The defendants claimed title under a sale of the lot for taxes in 1843 under the laws of Illinois, in consequence of the non-payment of the taxes laid in 1839. But as public lands cannot be taxed, it was necessary for the defendants to show that the government title was extinguished prior to 1839. To do this they gave in evidence, from the records of the General Land Office, an exemplified copy of a military land warrant for 160 acres of land issued to Giles Egerton, in December, 1817, a location thereof in his favor upon the lot in question on the 10th of January, 1818, and a patent to Egerton for the same lot dated on the same day. But on the margin of the exemplified copy of the patent was a memorandum, copied as follows, viz.:*fn1 'INDORSED. 'This patent was issued for the S. E. quarter instead of the N. E. quarter, as recorded; sent certificate of that fact to E. B. Clemson, at Lebanon, Illinois. See his letter of 19th May, 1826.' The defendants did not offer this memorandum in evidence, and objected to its being read, but, at the instance of the plaintiff, it was allowed to to read to the jury. The defendants then gave in evidence a deed dated July 29th, 1819, from Giles Egerton to one Thomas Hart for 'the southeast quarter of section 18,' &c., closing the description as follows: 'Which quarter-section was granted to the said Giles in consideration of his military services, as will appear by a patent obtained from the General Government, dated the 10th day of January, 1818.' [The defendants contended that the word 'southeast' in this deed was written by mistake, and should have been 'northeast.'] They further adduced (and in support of this view) an exemplified copy of a patent from the United States to one James Durney (another soldier), dated January 7th, 1818 (that is to say, three days before the alleged grant to Egerton), for this southeast quarter of section 18. The plaintiff in rebuttal gave in evidence deeds for the southeast quarter-section as follows: from Thomas Hart to Samuel Hunt, dated 12th May, 1824; from Hunt to E. B. Clemson, dated 7th April, 1825; and from Clemson to John Shaw, dated 20th October, 1829; the two former being regularly recorded; the last not recorded. The plaintiff then gave in evidence an act of Congress, approved March 3d, 1827, entitled 'An act for the relief of the legal representatives of Giles Egerton,' by which it was enacted that the legal representative or assignee of Giles Egerton be 'authorized to enter with the register of the proper land office, any unappropriated quarter-section of land in the tract reserved, &c., in lieu of the quarter patented to the said Giles on the 10th day of January, 1818, which had been previously patented to James Durney, and upon such entry a patent shall issue to such representative or assignee for the quarter-section so selected.' The plaintiff then proved that John Shaw entered another lot in April, 1838, in pursuance of this act. To all this evidence offered by the plaintiff in rebuttal the defendants objected. It thus appeared from the records of the land office (barring the memorandum in the margin of the patent), that the northeast quarter of section 18, which was the lot in question, had been regularly entered under a valid land warrant, and regularly patented; but it also appeared that the patentee, either by mistake of the scrivener or from some other cause, had conveyed to a third person the southeast quarter of the same section, as the lot so patented; and that the subsequent conveyances copied this description. Also that one of the subsequent grantees, several years afterwards, finding the southeast quarter embraced in a prior patent, got leave from Congress to enter another lot in the place of it, and did so. This was all the evidence in the cause. The patent itself was not produced; nor did it appear what had become of it. The court instructed the jury, that the defendants had not shown outstanding title to the lot in question, either in Giles Egerton or in any one claiming under him, and that the plaintiff was entitled to recover. To this charge the defendants excepted.

The opinion of the court was delivered by: Mr. Justice Bradley delivered the opinion of the court.

Mr. Horatio C. Burchard, in support of the ruling below:

I. Egerton's patent granted the southeast quarter.

Four independent facts seem to show that although Giles Egerton was entitled to receive upon his location a patent for the northeast quarter, the patent he actually received was for the southeast quarter.

1st. The marginal entry on the record.

2d. The recitals in Egerton's deed to Hart.

3d. The conduct of the subsequent grantees.

4th. The recitals in the act of Congress of March 3d, 1827.

1. The marginal entry. This was undoubtedly written upon the face of the record. It has stood there since 1826; nearly fifty years. It cannot be presumed to have been made without the authority or sanction of the officer having charge of the records; the Commissioner of the General Land Office. It was there of record, and upon the page of the record of the alleged patent, when the commissioner, in 1868, made the exemplified copy of the record offered in evidence below. He had no right to separate them. They were the record as he found it.

2. The recitals in Egerton's deed. Egerton declares in his deed to Hart that it will appear by his patent, obtained January 10th, 1818, that the southeast quarter of section 18, &c., was granted to him in consideration of his military services. He doubtless then had in his possession the patent actually issued to him on the 10th of January, A.D. 1818, and from it himself drew, or the scrivener for him, the deed to Hart. The deed itself supports this conclusion; it contains internal evidence of the fact. The description of the tract, the recitals of Egerton's title and consideration for which he obtained a patent, and date of its issue, must have been taken from the patent. The particular quarter-section upon which a bounty land warrant should be located in a military tract was then determined by lot, and not by selection, as at present.*fn2 The soldier held no certificate of location. His patent was the only evidence furnished him as to what tract he had become the owner of.

3. The conduct of Egerton's grantees. It is evident that there was a mistake in the patent to Egerton, as intended to be issued, or in the deed from him to Hart, and in the mesne conveyances from Hart to Shaw. If the successive deeds followed the patent, each purchaser inspecting the title-papers of his grantor would have no occasion to question the validity of the title he was about to acquire. When, however, it appeared that an elder patent had been issued to Durney for the southeast quarter, it behooved the last grantee, tracing title to that tract through Egerton, to examine his title-papers and ascertain and have rectified any mistake occurring therein. To do this required a comparison of deed with prior deed and with the patent. If a misdescription had occurred in any mesne conveyance, or in the deed from Egerton to Hart, the mistake would have been sought to be corrected by a new deed from Egerton, or a bill in chancery had he refused to execute one. The conduct of the parties–the grantees of Egerton–shows that no mistake was discovered in the deeds, and no variance in them from the patent. No new deed appears to have been executed or proceedings instituted to correct a mistake in the deeds and make them correspond with the patent. On the contrary, the grantee came to the United States claiming that his deed and the patent to Egerton were conveyances of the southeast quarter of section 18, and that as the tract had been granted by an elder patent to Durney, the government should give the legal representative or assignee of Giles Egerton the right to select another quarter-section in lieu thereof. The fact that Durney's patent for the southeast quarter was older than Giles Egerton's must have been ascertained by an examination of the latter patent itself.

4. The act of March 3d, 1827. The act, as a reason and justification for its passage, alleges that the quarter patented to Giles Egerton on the 10th day of January, A.D. 1818, had been previously patented to Durney. The court will not presume that the legislative department declared this to be a fact and gave it the sanction of a legal enactment without satisfactory proof of its truth. The patent itself, at that time in the possession of Egerton or his grantee, was, doubtless, produced before the committee which examined and recommended the passage of the bill.

The four facts to which we have adverted corroborate each other, and taken together are only reconcilable with the conclusion that no matter what patent should have been and was intended to be issued to Giles Egerton, the patent signed, sealed, and received by him, ...

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