O'Brien v. Perry

This was a writ of error to the Supreme Court of the State of Missouri.

The action was brought in the Circuit Court of Washington county, Missouri, by John O'Brien against Eliza M. Perry and others. The plaintiff's petition set forth that he was legally entitled to the possession of the east fractional half of the southeast fractional quarter of fractional section 15, in township 37 north, of range 2 east, in the county of Washington, Missouri, containing 58 54-100 acres, into which the defendants unlawfully entered and held him, the plaintiff, out of possession.

The defendants in their answer deny that the plaintiff is entitled to the possession of the land, aver their own title, and give a detailed history of it.

The cause was tried by the court without a jury, and after the evidence and arguments thereupon were heard, the court found the facts as stated in the opinion of Mr. Justice Nelson, and upon these facts found, as a conclusion of law, that John Perry, under whom the defendants claimed, by virtue of his waiver and relinquishment, was entitled to a pre-emption for the land in controversy; that the cancellation of his certificate of entry was illegal and void, and therefore judgment was given for the defendants.

The cause went to the Supreme Court of the State by appeal, where it was reviewed and the judgment affirmed, when this writ of error was sued out by the plaintiff.

Mr. Noell, of Missouri, for plaintiff in error.

1. John Perry, under whom defendants claim, never was in a condition to claim as a pre-emptor under the act of July 9, 1832, not being a housekeeper residing on the land, and not having an unconfirmed claim.

2. There was no proof that the land embraced in Perry's claim was ever reserved from sale. The report of the register and receiver is no legal proof of the fact.

3. The proof of pre-emption, certificate of entry, and patent of the plaintiff, made out a clear legal title, upon which he ought to have recovered.

4. The land was not reserved from sale. Perry's claim under Basil Valle was confirmed under the act of 26th May, 1824, the 4th section of which embraced the village of Mine au Breton. The act of July 9, 1832, (sec. 3,) expressly provides that the lands embraced in the 2d class shall be subject to sale as other public lands; those embraced in the 1st class are reserved, and are all that are reserved.

5. The patent itself is presumed to be valid. All the pre-requisites to its validity are to be presumed, and the contrary cannot be shown by any other means than by proof that it issued contrary to law. Polk vs. Wendall, (9 Cranch;) Bognell vs. Boderick, (13 Peters;) Minter et al. vs. Crommelin, (18 How., p. 87.)

6. Under the statute laws of Missouri the plaintiff was entitled to recover upon his right of pre-emption, although no patent might have been issued. Revised Code of Missouri, 1845 and 1855, title Ejectment.

No counsel appeared for defendants in error.

Mr. Justice NELSON.