Branson v. Wirth
84 U.S. 32 (1872)

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U.S. Supreme Court

Branson v. Wirth, 84 U.S. 17 Wall. 32 32 (1872)

Branson v. Wirth

84 U.S. (17 Wall.) 32

Syllabus

The government, as appeared by the exemplification of the record of a patent, had granted, January 10, 1818, to A. the northeast quarter of a certain tract of land, in pursuance confessedly of a warrant and location upon that quarter; the exemplification of the record of the patent, however, showing that eight years after the date of the patent, a "memorandum" bad been made [by whom did not appear] on this record, that the patent itself was issued for the southeast quarter. The government had confessedly issued a patent to Z. for this southeast quarter on the 7th of January, 1818 -- that is to say, three days before the date of the patent to A. -- for whatever corner the patent to A. really was. In 1819, A. conveyed to B. the southeast corner, describing it as the quarter which had been granted by patent to him, January 10, 1818. In 1824, B. conveyed to C., describing the land as the southeast corner. In 1825, C. conveyed to D., and in 1829 D. conveyed to E., the deeds of both these last describing the land as the southeast corner, but the latter deed not being put on record. In 1837, a private act of Congress was passed authorizing the legal representative or assignee of A. to register with the register of the proper land office any unappropriated quarter section, &c., "in lieu of the quarter section patented to the said A. on the 10th of January, 1818, which had been previously patented to Z.," and in pursuance of this act, E. did, in 1838, enter another lot.

In 1843, on an assumption that the government had conveyed away its title to it, the northeast quarter was sold under the laws of Illinois for state taxes and bought by O. And in 1868, on an assumption that the title was still in the government, the same quarter was patented by the United States to P.

On a suit by P. against O., held:

lst. On a supposition that the patent was given for the northeast quarter, that there was no estoppel shown either by the deeds from A. to E., both inclusive, or by the act of Congress (it being a private act), or by E.'s selection of a new lot which prevented the defendants from showing the truth of the case, to-wit, that the patent was for the northeast quarter.

Page 84 U. S. 33

2d. That the "memorandum" on the record being no part of the record, and but the memorandum of a third person, could not be received in evidence to contradict the record.

3d. That accordingly it was error to have instructed the jury that the defendants had not shown outstanding title in the northeast quarter (the lot sued for), either in A. or in anyone under him, and that the plaintiff was entitled to recover.

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 20 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 nonpayment 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.: [Footnote 1]

"ENDORSED"

"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 19 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 be read to the jury.

Page 84 U. S. 34

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 7, 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 12 May, 1824; from Hunt to E. B. Clemson, dated 7 April, 1825; and from Clemson to John Shaw, dated 20 October, 1829; the two former being regularly recorded; the last not recorded. The plaintiff then gave in evidence an act of Congress, approved March 3, 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

Page 84 U. S. 35

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 anyone claiming under him, and that the plaintiff was entitled to recover. To this charge the defendants excepted.

Page 84 U. S. 39

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