Hammond v. Johnston

George F. Edmunds, D. T. Jewett, and H. H. Denison, for plaintiffs in error.

This was an action of ejectment for a lot described, brought in the circuit court of St. Louis county, June 15, 1874. The facts necessary to be considered in the disposition of the case are as follows: Joseph Hunot claimed a head-right of 800 arpents of land, under the Spanish government, dated in 1802, and located in what is now New Madrid county, Mo. On May 12, 1810, he conveyed this land by warranty deed to Joseph Vandenbenden, and on November 4, 1815, Vandenbenden conveyed the same by a like deed to Rufus Easton. January 31, 1811, the claim was presented for confirmation to the old board of commissioners, and rejected; but on November 1, 1815, Recorder Bates recommended the claim for 640 acres for confirmation, and it was confirmed by act of congress of April 29, 1816, (3 St. 328.) August 12, 1816, Recorder Bates issued a certificate, No. 161, stating that the tract had been materially injured by earthquakes, and that under the act of congress of February 17, 1815, Joseph Hunot, or his legal representatives, (who had already received a certificate for 160 acres,) were entitled to locate 480 acres of land on any of the public lands of the territory of Missouri, the sale of which was authorized by law. On June 16, 1818, Rufus Easton made application to the surveyor general to locate the said certificate on certain lands in township 45, range 7 E., being the same on which it was subsequently located. June 23, 1819, Joseph C. Brown, United States deputy-surveyor, returned to the surveyor general's office a plat and description of the 480 acres surveyed for Joseph Hunot or his legal representatives. This survey, which was numbered 2,500, was returned to the recorder of land titles onJanuary 8, 1833, and on February 2, 1833, Frederick R. Conway, the recorder, issued and delivered to Peter Lindell patent certificate No. 404, for said survey, in favor of Joseph Junot or his legal representatives. July 10, 1819, Rufus Easton and wife, by deed of that date, conveyed to William Stokes 234 acres of this survey, described particularly by metes and bounds. September 29, 1823, Rufus Easton, by deed of that date, acknowledged October 9, 1823, and recorded February 9, 1824, in which he recited that he had previously, on September 3, 1818, executed his bond to Samuel Hammond and James J. Wilkinson for the same land, conveyed to Samuel Hammond 240 acres, being the whole of the Hunot survey, as located by Rufus Easton by virtue of certificate No. 161, except 234 acres of the tract, which he had conveyed to Stokes. The lot in question in this suit is part of the 240 acres. Samuel Hammond occupied, fenced, and cultivated this land between 1818 and 1823. In 1824 or 1825 he left St. Louis, and went to South Carolina, where he continued to reside until 1842, when he died leaving five children. On the 12th of March, 1819, Relfe, Chew, and Clark instituted suit against Samuel Hammond in the St. Louis circuit court, which resulted in a judgment against him for the sum of $6,841.80 1/2, which judgment was finally affirmed by the then supreme court at the May term, 1823. An execution was issued on this judgment, May 23, 1823, and delivered to the sheriff of St. Louis county, by virtue of which he levied upon the 240 acres, as the property of Samuel Hammond, and, after advertisement, the land was sold by him, October 8, 1823, to Relfe and Chew, who were the highest and best bidders for the same, whereupon the sheriff executed his deed to said purchasers in due form of law, dated November 4, 1823. This deed was duly acknowledged and recorded. The land was subsequently sold and conveyed by Relfe and Chew to Peter Lindell, to whom Joseph Hunot and wife had also conveyed. On August 30, 1859, on Lindell's application, a patent was issued by the United States and recorded in the general land-office, conveying the said survey, with certain exceptions, to Joseph Hunot or his legal representatives. The patent, although dated August 30, 1859, was under consideration in the department of the interior until November 12, 1860, when the secretary decided in favor of issuing it. Plaintiffs in error derive their claim to the land as heirs of Samuel Hammond, or through conveyances made in 1873 and 1874 by such heirs. The defendants, Johnston and Baker, claim title to the particular lot sued for under one of the heirs of Peter Lindell. The trial of the action having resulted in a judgment for the defendants, the case was taken to the supreme court of Missouri on appeal, by which court the judgment of the circuit court was affirmed. The opinion will be found reported in 93 Mo. 198, 6 S. W. Rep. 83. Thereupon a writ of error was sued out from this court.

The errors assigned here are: First, that the supreme court erred in holding that Hammond had any title to the land in controversy which could be levied upon by the sheriff and sold upon execution against him, for the reason that the United States survey No. 2,500, made under said certificate No. 161, was not returned to the recorder of land titles for the territory of Missouri until January 8, 1833, and recorded February 2, 1833; second, that the court erred in holding that the patent to Joseph Hunot or his legal representatives, dated August 30, 1859, though not delivered until 1860, took effect from its date, by which error it was claimed that Samuel E. Hammond, one of the original plaintiffs, who lived in Tennessee, was erroneously held to be barred.

The supreme court of Missouri considered, in its opinion, and overruled, certain objections of plaintiffs to the deed of the sheriff under the execution in the suit of Relfe, Chew, and Clark v. Hammond. These objections were that only a certified copy of the deed was offered in evidence; that the deed was void for uncertainty of description; that, at the time of the sale under the execution, Hammond had no interest in the land subject to sale; and that Easton had no interest in the property, because the surveyor general had not, at the date of Easton's deed to Hammond, returned a plat of the survey to the recorder of land titles, and did not do so until 1833. Plaintiffs in error contend that at the time when Easton conveyed to Hammond, and when the sheriff sold the land under the execution, the title to the land was in the United States. The court conceded that the legal title was in the United States, but held that there was an equitable interest in Easton and those claiming under him, which was subject to sale under execution; and that, under the statutes of Missouri, the sheriff's deed was effectual in passing to the purchaser all the estate and interest which the debtor had at the time of the judgment. And the court used this language: 'Under the view we have taken of the sheriff's deed, and the force and effect we have given to it, the title is in the defendants, and the judgment will be affirmed. This result as to the effect of the sheriff's deed rendered it unnecessary to pass upon the other questions presented by the record, but we have ruled upon them in order that there may be no embarrassment to either party in a review of this judgment in the supreme court of the United States.' Mr. George F. Edmunds and Mr. D. J. Jewett (with whom was Mr. Henry H. Denison on the brief) for plaintiffs in error.

[Argument of Counsel from pages 77-78 intentionally omitted]

J. B. Henderson and James M. Lewis, for defendants in error.

Mr. Chief Justice FULLER delivered the opinion of the court.