9

Hammond et al. v. Scott.

a valuable consideration, public policy requires that a party injured by the act of the sheriff, should be left to seek his redress in damages, instead of being permitted to pursue his property. 1 Mo. R. 754, Kean, v. Newell; Hicks & Hammond v. Perry, 7 Mo. R. 346. 3rd. In the absence of fraud and abuse of authority, a court of equity cannot, without a manifest violation of its principles, grant relief. To set aside a sheriff's sale there must be proof of fraud. Woods v. Monell, 1 Johns. Ch. R. 501. See also as to sheriff's sales, 8 Mo. R. 454; 1 Mo. R. 754; 8 Mo. R. 177; 7 Mo. R. 346; 9 Mo. R. 783; 4 Cranch, 403; 8 Johns. 333. 4th. All fraud and abuse of authority being expressly denied by the answers of defendants below, and not disproved by complainant, must be taken as true; and the decree consequently erroneous, and should therefore be reversed. 5th. It is insisted that the instructions refused should have been given, and that the error is prejudicial, and that the decree should be reversed on this ground also.

FRISSELL, for Appellees. 1. It is insisted for the defendant in error that the decree is for the right party, and from the circumstances as alleged in the bill, and proved before the court, the decree ought not to be reversed. 2. That the great inadequacy of price is sufficient alone for the court to set aside the sale, the more especially as defendant in error offered to pay and has paid the representatives of Hicks the purchase-money, interest and costs. 1 Story's Com. on Equity, 324; 17 Vesey, 20, Gowland v. De Farre; Bowes v. Heaps, 3 Ves. & Bea. 117; 2 Vernon, 26, Berry v, Pitt. 3. The acts of the sheriff were so irregular in the advertising and in the selling two tracts together without the consent of Scott, and the result was so oppressive upon him that fraud might well be presumed, and the sale set aside for fraud. Hicks might well be charged with actual fraud. 9 Pick. 212; 2 Ves. & Bea. 117.

MCBRIDE, J. John C. Scott filed his bill in the Circuit Court of Jefferson county, against John Hammond and Robert D. Hicks, in which he alleges that on the 15th November, 1838, the County of Washington recovered a judgment against him as principal, and John Perry and Joseph M. Stevenson as his securities, for the sum of $318 07 for debt and damages and the costs of suit, upon which judgment an execution issued on the 31st October, 1839, directed to the sheriff of Jefferson county, which came to the hands of the defendant, Hammond, then acting sheriff of Jefferson county, who levied the same upon the complainant's interest in the east half of southwest quarter of section 4, township 38, range 5, containing 80 acres, and on the fractional Southwest quarter of section 4, township 38, range 5, containing 124.71 acres ; both of said tracts being valuable in consequence of their having mineral on them, and for farming purposes. That said Hammond advertised the same to be sold on the 10th December, 1839, between the hours of nine and ten 10 o'clock of the forenoon of said day, an hour much earlier than was usual for making such sales, and offered the same for sale, there being but few persons present, when the land was sold to Robert D. Hicks, for the sum of five dollars; both tracts having been offered and sold at the same time. That his interest in said land was an undivided equal half, and was reasonably worth two or three hundred dollars. That he was non-resident of the county, and had no knowledge whatever that the land had been levied upon and was to be sold. The bill further charges that Perry, one of the defendants in the execution, had an agent authorized to attend the sale, and make the land sell for its value; but in consequence of the sale having taken place at so early an hour, and both tracts having been sold at the same time, the agent did not reach the place of sale until after the land was struck down; that immediately thereafter the agent offered Hicks, the purchaser $20 for his bargain, which he refused to take, and demanded $50; but the agent not being authorized to pay so great a sum, declined the proposition. The bill further charges the defendants with a fraudulent combination to injure and oppress the complainant; and alleges that the defendant has no other estate out of which to pay the judgment at law, and unless the sale of the land be set aside and the same be again sold, that his securities will be compelled to pay the said judgment. The defendants filed their separate answers to the bill, in which they deny

Hammond et al. v. Scott.

all fraud and combination, and aver that the sale was a fair and an open one, conducted according to law. That the reason why the interest of the complainant was sold in both tracts at the same time, was, that it was uncertain and unknown what was the extent of that interest, and it was in consequence thereof that his interest sold for so small a sum, &c. Replications were filed to the answers.

Hicks, one of the defendants, died, and the suit was revived against his heirs. To sustain the charges in the bill, the complainant introduced one Clement B. Fletcher, as a witness, who testified that on the evening before the sale, Perry, one of the defendants, called at his house, where Hicks was, and when they were together, Perry requested him to attend the sale and bid in the land or run it up to the amount of the execution. Hicks proposed to attend to it for Perry; but Perry declined his services, stating that witness wonld do it for him. Perry sat down and gave witness written instructions on the subject. Early next morning Perry left for St. Louis, and shortly thereafter witness went to the court-house to attend the sale; but when he reached there 11 the land had been sold. The sale was made between nine and ten o'clock, and whilst the court was in session-there were but few persons in town. Witness told Hicks that he would give him $20 for Perry, if he would give up the land; he replied that he would give Perry his bargain for $50, but not less, which witness declined. The land lies somewhere near Valle's mines. The defendants gave in evidence the record of the judgment and the proceedings therein, referred to in the bill; also the sheriff's deed for the land in controversy to Hicks. The court decreed in favor of the complainant: the defendants moved for a new trial, which was overruled, when they excepted and appealed to this court.

The charge made in the bill against the defendants of combining and confederating for the purpose of defrauding and oppressing the complainant, being denied in the answer, and not supported by the evidence in the cause, the only grounds remaining for relief, are: first, that the sheriff sold the complainant's interest in two parcels of land at the same time; and second, the inadequacy of price at which that interest was sold.

From the numbers given of the land in the bill, as also in the deed of the sheriff to Hicks, it is apparent that the two pieces of land are adjoining, and constituting as they do, only about two hundred acres, unimproved, and the defendant's interest therein being undivided and unknown, we do not regard the sale as an abuse of that discretion which the sheriff in the discharge of his duty is called upon to exercise. It is not like the sale of detached pieces of land, where the one is not necessary to give value to the enjoyment of the other, and where, if one piece should bring a sum near its current value, would discharge the execution; in such case the sale might be regarded as an undue exercise of discretion, and be set aside, on motion, by the Circuit Court.

We do not subscribe to the principle contended for by the complainant's counsel, that inadequacy of price alone is sufficient ground for setting aside a sheriff's sale.() On the contrary, where the sale has been an open, fair and public one, where there has been no act done or superinduced by the sheriff or purchaser to prevent the property from selling for a higher price, public policy would indicate that such sales, although attended with great pecuniary loss, ought to be upheld and sustained. If the principle was recognized, 12 its application would be entirely arbitrary, as no rule could be established to govern the innumerable cases that arise.

Some stress is laid upon the fact that the sheriff sold at an earlier hour in the morning than is usual for making such sales. It was, however, within the hours prescribed by law, and we can readily conceive of a state of circumstances which would make it necessary for the officer to commence his sales at as early an hour, without subjecting him to just imputation. We are therefore of opinion that the Circuit Court erred in its decree and that the same ought to be reversed: and, the other Judges concurring herein, the same is reversed, and the bill is dismissed.

(a) Neal v. Stone, 20 Mo. R. 296; Wooten et al. v. Hinkle, 20 Mo. R. 20; Nelson v. Brown, 23 Mo. R. 21; Meir v. Zelle, 31 Mo. R. 332; Parker v. II. & St. Jo. R. R. Co 44 Mo. R. 421.

McDaniel v. Orton et al.

MCDANIEL v. ORTON & MUDGETT.

1. PRE-EMPTION.-A person having settled upon one quarter section of land and cultivated another-being entitled to elect on which he will prove his right of pre-emption-cannot prove his right to and enter one upon condition that such entry should be canceled in the event that his right of pre-emption to the other should be established by the decision of the commissioner of the general land-office.

2. REGISTER AND RECEIVER-ACT OF CONGRESS CONSTRUED.-The register and receiver have no authority to permit a party to vacate his entry.

APPEAL FROM THE BUCHANAN CIRCUIT COURT.

SCOTT, J. This was a bill in chancery, filed by McDaniel against Orton & Mudgett, to compel the conveyance of the title of a tract of land to McDaniel, to which he was entitled by pre-emption, and for which as was alleged Orton had obtained a patent by fraud. The bill states, that the public land not being surveyed, McDaniel having settled on one quarter section of land, improved and cultivated another quarter section, by which he was entitled to elect, under the acts of Congress of 1838 and 1840, on which one of the two he would prove his right of pre-emption. That there were several claimants of the right of pre-emption to the quarter section which he claimed by virtue of cultivation. That on the trial of the right before the register and receiver, the land was awarded to Robert W. Donnell and the heirs of John Donnell. From this determination, the several unsuccessful claimants 13 appealed to the commissioner of the general land office. That pending the appeal whose determination was long delayed, the sales of the publie lands, including those to which he claimed a right of pre-emption, came on in pursuance of the proclamation of the President of the United States. McDaniel, lest he should lose both pre-emptions prior to the public sales, proved his right to and entered the quarter section on which he resided, under positive assurances that in the event of its appearing that he was entitled to a pre-emption to a quarter section which he claimed by virtue of his cultivation, the entry should be canceled. On the second trial the right of pre-emption was awarded to McDaniel by the land officers. From this decision another appeal was taken by Orton to the commissioner of the general land-office, who referred the question to the secretary of the treasury, which officer issued a peremptory order to the land officers to allow Orton the pre-emption, on the ground that McDaniel had forfeited all claim, by entering the quarter section on which he had settled. Shortly after this order, a patent was issued. It is charged that this order was procured by the fraud and misrepresentation of an agent of Orton. There was a demurrer to the bill which was sustained and the bill dismissed.

In the case of Lewis v. Lewis, (a) this court held that it could not interfere with a title emanating from the United States, but in cases affected by fraud or with a trust. In that case, there being no allegation of fraud other than that of a fraudulent combination (a formal part of all bills) a demurrer to the bill was sustained on the ground that no answer to a mere charge of combination was necessary, and the facts set forth showed that the party was entitled to no relief. In this case, the court might have required an answer to the bill, had not other facts appeared, which show that McDaniel is without redress.

We are not prepared to say that the opinion of the secretary of the treasury, that McDaniel, in entering the quarter section on which he lived, forfeited his right of pre-emption to that which he claimed by virtue of his cultivation. By law he could not have both pre-emptions. He was compelled to elect one or the other of them. Having taken one, though under a protest, as it were, and with assurances from the land officers that it should be canceled upon its appearing that he was entitled to a pre-emption to the other quarter, he is bound thereby. That he may have been misled by these officers, can. not help him. He is in the condition of all those who act under mistaken or erroneous opinions.

14 There is no authority in the register and receiver to permit a party to vacate his entry.) Such a power might lead to great abuses, and produce much confusion in the system of land sales. By a conditional entry, making

Lessieur v. Price.

its continuance depend upon an event that may be long deferred, a sale of the public lands would be delayed and another proclamation would be necessary, thereby increasing the expenses attending the sale of them. The land not having been offered at public sale, would not be subject to private entry. All the adjoining lands having been sold, the sale of isolated parcels might not attract the number of purchasers that would attend the first sales. The other Judges concurring, the decree will be affirmed.

1. EJECTMENT-ACT OF CONGRESS CONSTRUED.-A grant of the United States to the State of Missouri, of four sections of land, for the location of the seat of government, accepted and located by the State, needs no parchment evidence in the form of a patent from the President, to give the State title.

2. NEW MADRID CLAIM-ACT OF CONGRESS CONSTRUED.-Under the act of Congress no title can pass under a New Madrid location, until the injured land has reverted to and is vested in the government.

3. SAME.-The New Madrid act is not a direct grant of land.

4. SAME.-Strangers to a New Madrid claimant have no right to institute and carry on proceedings by which he is divested of his title to land in New Madrid county.

5. SAME. A subsequent assent of the New Madrid claimant, will not relate back, so as to cut out a title equally meritorious.

ERROR TO COLE CIRCUIT COURT.

GLOVER, CAMPBELL & WELLS, for Plaintiffs. 1st. The plaintiffs showed a title good in itself; the entry of June 2, 1821; the survey August 5, 1821; and patent of November 13, 1822; constitute a valid and perfect title in J. B. Delisle to the land in dispute. If, then, there was no other title before the court, the plaintiff's would prevail. 2nd. There being another title before the court conflicting with the plaintiffs, it becomes necessary to determine which is the elder title, as the elder title will prevail. 13 Peters, 436; 1 Peters, 668. 3rd. The plaintiffs insist that their title began to exist on the 2nd June, 1821, the date of the entry by Baptiste Delisle, and the patent of the United States to said Delisle, dated November 13, 1822, relates back to the said entry, as against any person in the meantime deriving title directly from the United States. 4th. The notice, survey and patent, vested a title in Baptiste Delisle notwithstanding said Delisle may not have known of the existence of said documents. The delivery by the officers of said documents as the acts of government, to Langham & Hempstead, or any one, for the use of said Delisle, being beneficial to him, vest a perfect title in him. 4 Kent's Com. 454 and notes; 2 Salk. 618; 15 Wendell, 660; 6 Cowen, 620; 8 Barn. & Cres. 448; 4 Day, 66; 12 Johns. 82. 5th. Delivery is not a requisite formality to the validity of a patent; it takes effect on passing the seal of the office without delivery. 2 Coke, top page, 276, note 17; Croke Eliz. 167; 5 Cowen, 458; 1 Cranch, 160; 1 Cor. & Hughes, p. 738, ch. VII, No. 8. 6th. The State has not shown in evidence any title, valid in itself, to the land in dispute; far less one which can prevail against the plaintiffs' title.

15

POLK & LESLIE, for Defendant. 1st. The proposition embodied in the 2nd instruction prayed by defendant's counsel, is good law, and the court below committed no error in declaring it to be the law of this case. 2nd. No man can take land by grant or conveyance, unless his assent is given to such grant or conveyance. This assent may be implied, it is true, as well as express; but still it must exist. If it is not express, either in word or by act, it must be implied. 3rd. But when the New Madrid location is made and perfected, and in order that the title to the new or located land should vest in the locator, the title that he had held in the New Madrid land, in lieu of which he has made the location, passes out of him eo instanti et ipso facto into the United States. The very act that gives him the new land, at the very moment of

Lessieur v. Price.

giving, deprives him of the New Madrid land. See 2 Story's Laws, 1501, last part of the first section of the New Madrid act; and Wear v. Hickman, 5 Mo. 161. 4th. The court below ought to have given the first instruction prayed by defendant's counsel; and if this instruction had been given, even though it should be conceived that the court erred in giving the second instruction prayed by defendant, still the judgment of the court below was right, and ought not to be reversed. For if the first instruction had been given, the judgment below ought and must have been for the defendant, as it was, whether the second instruction had been given or refused. As then, in that case, the giving or refusing the second instruction could not vary the result, the giving it ought not to be holden sufficient ground for a reversal of the judgment, if the court ought also to have given the first instruction. To show that the defendant's first instruction ought to have been given by the court below, we make the following points: 5th. In the case of the New Madrid location under Delisle, the title to the land in Cole county did not pass out of the United States until the plat of the survey made by the surveyor-general, under the notice to him, was filed in the office of the recorder of land titles; or, in other words, and in the language of the Supreme Court of the United States, "the location referred to in the New Madrid act, is the plat and certificate of survey returned to the recorder of land titles." For this, we refer to the case of Bagnell et al. v. Broderick, 13 Peters, 450. We refer to it as of binding authority, and as being decisive upon the point. It is the decis ion of the court of the highest and last resort, in this very case under consideration. It is a decision of a court of the United States; the Supreme Court of the United States, upon a law of the United States. The point was distinctly raised and adjudicated. 6th. The fourth and tenth instructions prayed by plaintiffs' counsel, are, in principle, the same, and embody substantially the same proposition. The only difference is the point of time to which they severally make the legal title conveyed by the Delisle patent, relate back. The fourth carrying it back to the date of the notice of location, the tenth to the time of making the survey. 7th. The plaintiffs' counsel asked an instruction, the fifth in numerical order, to the effect "that a location of the four sections of land granted to the State for a seat of government, on two whole sections and five parts of other sections, was not in conformity with the act of Congress, and therefore void, unless subsequently ratified by the government of the United States, or some department or officer thereof, thereunto authorized. This, the court below would not declare to be the law of this case, and we say was right in so refusing. 8th. Again, it does not appear, as we understand the evidence, that the premises in question are not a part of the two 16 entire sections selected; it does not appear that they are a part of the portions of sections selected. Now the objection to the State's location presented by this instruction, is only that the sections must be entire sections. The act of Congress does not require that the whole quantity should lie together, but only that the sections should lie as near as may be in one body. So that the grant might have been located in such wise as to include two sections together, and so as to have the remaining quantity disconnected with the two sections so located. In this case, there are also two full sections adjoining each other; and such might be the fact, and yet the location be in accordance with the grant, even on the view taken of it by the counsel of the plaintiffs. 9th. But then we contend that the obvious meaning of the grant is the quantity of four entire sections. That is, Congress meant to give to the State 2,560 acres of land, for a permanent seat of government, to be located as near as might be in a body. To be located on any of the public lands exposed to sale-the only qualification being the direction to locate the quantity as near as might be in a body. 10th. On the sixth, seventh and eighth instructions prayed by plaintiffs, and refused by the circuit judges, we remark that we know not why, or by what authority, the State could be required to make or record her location in the office of any officer of the land department, or that it should be sanctioned by any officer of the United States, unless the grant itself, or some law or laws of the United States require it. 11th. On the ninth of plaintiffs' instructions we barely observe that if the court below was right in refusing their fifth, it was also and fortiori right in refusing the