1. The Act of Congress of March 6, 1820, admitting Missouri into
the Union, and the Act of March 3, 1823, respecting grants of land
to that state, without further grant or patent, vested in the state
the 16th section of each township for school purposes; but where
this section had been sold or disposed of by the government, it
required the selection of other lands in lieu thereof by the
register and receiver of the proper land district, and such
selection when made and entered in the register's hooks, vested the
title of such substituted lands in the state.
2. In such case, where the register's book, or the leaf supposed
to contain the entry, is lost or destroyed, the fact of such
selection may be proved by other evidence -- as that the lands
claimed to have been so selected had been treated and sold as
school lands by the proper state authorities
Page 82 U. S. 124
near to the period when the selection should have been made;
also that the original township plat kept in the register's office
had a memorandum on the lot in question that it was "reserved for
schools."
3. Where a county school commissioner in Missouri kept in a book
a record of his transactions in selling the school lands in the
county, which was deposited in the county clerk's office, and
preserved as a public monument among the county archives, it is
de facto a public record, and proper evidence of his
official acts. It is also admissible as the entries of a deceased
person, made in the course of his official duty, in a matter of
public concern, to prove his official transactions.
4. If a township plat be lost or destroyed, it may be proved by
a copy, and memoranda on such copy, not contained in the original,
if accounted for and explained, will not exclude the copy as
evidence of the contents of the original even though such memoranda
be a translation of corresponding memoranda in the original.
MR. JUSTICE BRADLEY stated the case, and delivered the opinion
of the Court.
This was an action of ejectment brought by the plaintiff in
error to recover a certain quarter section of land in Howard
County, Missouri. The plaintiff claimed the land under a patent of
the United States, granted to one Widdicombe, June 1, 1868, upon a
scrip certificate issued to the State of Kentucky, under the Act of
July 2, 1862, donating lands to the several states for the support
of agricultural colleges. The defendant, who had been in possession
of the land for more than thirty years, and had erected expensive
improvements on it, claimed title under a grant from the State of
Missouri, made in 1832. The title of the state was derived in the
following manner. By the 6th section of the Act of Congress passed
March 6, 1820, [
Footnote 1]
entitled, "An act to authorize the people of the Missouri territory
to form a constitution and state government &c.," it was,
amongst other things, proposed for the acceptance of the
convention, and,
Page 82 U. S. 125
if accepted, to be binding on the United States, that "section
sixteen" in every township, and when such section had been sold, or
otherwise disposed of, other lands equivalent thereto and as
contiguous as might be, should be granted to the state for the use
of the inhabitants of the township for the use of schools; also all
salt springs, not exceeding twelve in number, and six sections of
land contiguous to each, for the use of the state, with other
concessions stated in the act. These proposals were accepted by the
convention. For the purpose of carrying out this grant as to school
lands, an act was passed on the 3d of March, 1823, [
Footnote 2] by which it was enacted that in
all cases in which "section sixteen" had been sold or otherwise
disposed of, it should be the duty of the register and receiver of
the respective land offices in whose districts such land might be,
to select the like quantity of other lands equivalent thereto, from
any of the unappropriated lands of the United States in that state,
as nearly contiguous to said "section sixteen" as might be; and a
descriptive entry of such selected lands should be made on the
books of the register specifying as well the township in which, as
that for the use of which, the selection should be made, and the
lands thus selected and located were, by the act, granted to the
state, for the use of the inhabitants of the respective townships
for the use of schools, instead of the sixteenth section so sold or
disposed of.
The defendant insisted that section sixteen in the township in
which the lot in question was situated had been sold by the United
States prior to March 6, 1820; that the register and receiver of
the land district had selected other lands for the use of the
township for school purposes under the act of 1823, and had made a
descriptive entry thereof in the register's books in pursuance of
the act; and that the quarter section in question (which was a part
of section seventeen) was one of the tracts so selected, and
thereby became the property of the state, and had been sold as
such
Page 82 U. S. 126
by the school commissioner of the county in 1832, and that a
patent had been duly granted by the state in pursuance of such
sale, under which the title of the defendant was regularly
derived.
All the parts of this defense were duly proved except one. This
was the selection and entry of the lot in question by the register
and receiver, in lieu of "section sixteen," disposed of. The
register's book contained no descriptive entry as directed by the
act. The leaf that should have contained it (if it was made) being
missing, and the original township plat (which would probably have
indicated the fact) being also lost.
This hiatus in his case the defendant endeavored to supply by
proof
aliunde. He adduced the testimony of several
witnesses to show that the lot in question had been rented out as
school lands for several years prior to 1832, and that in that year
it was sold, with other school lands, by Owen Rawlins, the county
school commissioner, being the sale upon which the state patent was
based. He then produced and offered in evidence from the county
archives, kept in the clerk's office, a certain book or record,
kept by Rawlins, containing a copy of his commission as school
commissioner, and a history of his proceedings in selling the
school lands, together with a list, in the handwriting of one Boon,
of all the school lands of the county, including the lot in
question; which entries were made in 1831-1832, and both Rawlins
and Boon were shown to have been dead many years. The defendant
also produced a book purporting to contain a copy of the original
township plats in the register's office (including the township in
question), showing the various sections of land, and memoranda
written on each section as to the disposition thereof, in which the
quarter section in question had the words "reserved for schools"
written upon it. As to the origin of this book, James L. McNair
testified that it was made by him in 1853; that he was then Deputy
Clerk of Howard County; that he had before that time been clerk in
the office of the register whilst his father held that office; that
an act of the Missouri legislature directed the county
Page 82 U. S. 127
clerk to procure a copy of the township plats in the register's
office, and that the witness was employed by Mr. Harding, the then
clerk of the county court, and by Judge Todd, then register of the
land office, to make the copy; that he made it carefully, and was
satisfied that the book produced was a true copy -- not, however, a
literal copy of any one book then in the register's office in all
particulars. As to entries, the plat book in the register's office
would contain on any particular subdivision of land the letters
"A.," "P.," with a number; on another book would be seen the name
corresponding to this number; and, in compiling this copy, the
witness would write down the name instead of the number -- thus
translating it and condensing two books into one. The letters "A.,"
"P." signified that the tract had been
applied for and
paid for. In respect of reservations for schools, the
words, "reserved for schools," were written on the original plats
in the register's office on the tracts so reserved. The writing on
the plat of the township in question was all in the witness'
handwriting as he made it in 1853. Herndon, who was for more than
twenty-five years Clerk of Howard County, corroborated McNair's
testimony.
Upon this proof the defendant offered in evidence the said
record of Owen Rawlins, and the copy of the plat of the township in
question in the book made by McNair, and the court, against the
objections of the plaintiff, admitted them in evidence, to which
ruling the plaintiff excepted.
This is the first error assigned, and we have no hesitation in
saying that the evidence was properly admitted. The book of Rawlins
was
de facto a county record, preserved as a public
monument in the county archives. For the purpose of showing his
acts as school commissioner in selling the land in question as
school lands, it was undoubted evidence. It was such not only as a
public record, but as the entry of a deceased person made in the
course of his official duty in a matter of public concern, which
clearly made it evidence of his public transactions. The list made
by Boon
Page 82 U. S. 128
was evidently a part of the same record made under Rawlins's
direction, and was admissible on the same grounds.
The plat made by McNair was competent secondary evidence of the
contents of the original plat which was lost. The fact that it did
not correspond in every particular with that original in respect of
the memoranda written upon it did not detract from its
admissibility. Those memoranda, and the manner in which they were
made, were sufficiently explained.
As to the bearing of this evidence upon the issues of the cause,
it is sufficient at this point to say that in view of the fact that
the proper evidence with regard to the action of the register and
receiver was entirely lost or destroyed, the fact that the land in
question had been publicly treated and disposed of by the county
authorities as school lands so near to the time when such lands
were set apart for school purposes had an important bearing on the
question whether the register and receiver did, in fact, make the
selection of the lot in question. We think that it was proper
evidence to go to a jury on such a question. Without other
corroborative circumstances, it might have had but slight weight.
But on the principle involved in the maxim
"omnia proesumuntur
rite esse acta," as applied to the acts of public officers, we
think it was clearly competent.
The bearing of the township plat will be discussed
hereafter.
To rebut this defense, the plaintiff offered evidence to show
that neither the local land office nor the General Land Office at
Washington contained any evidence whatever of the alleged selection
of the lot in question as school lands, but that the only
memorandum with regard to that lot was of the sale to Widdicombe,
under which the plaintiff claimed title.
The plaintiff then called upon the court to declare as law that
the United States did not part with its title to the land in
question prior to the issuing of the patent to Widdicombe, and that
neither the Act of Congress of March 6,
Page 82 U. S. 129
1820, admitting Missouri into the Union, nor any subsequent act,
operated as a grant
per se to the state, or to any of the
inhabitants thereof, of the lot in question, but that to divest the
title of the United States, the lot should have been designated and
set apart according to law, in lieu of a similar quantity of the
sixteenth section sold or disposed of by the government prior to
March 6, 1820, and that no such designation or setting apart had
been shown by the evidence. This was, in substance, asking the
court to decide against the validity of the defense. The court
refused so to declare, but on the contrary, at the request of the
defendant, in substance, declared the law to be that if in fact
prior to 6 March, 1820, section sixteen had been disposed of and
sold by the United States, and if the register and receiver of the
proper land office, under the act of 1823, in lieu thereof, did
reserve and select the lot in question, and did make a descriptive
entry of said reservation and selection, which entry had been lost
or destroyed by the loss of the leaf on which it was made, the
claim of the plaintiff under the state of Missouri was valid.
To these rulings exceptions were taken.
It is certainly true that neither the act of 1820, nor that of
1823, of themselves, transferred the title of the lot in question
from the government to the state of Missouri. The sixteenth section
of land having been disposed of, it required a designation of some
other lands, in the manner pointed out by the statute, to take its
place. Until such designation was made it is evident no title could
pass. But such designation and entry were all that the law required
to be done. No patent was necessary for the substituted lots any
more than for the sixteenth section itself, had that been
undisposed of. The things to be done in order to vest title in the
state were
certain acts of the register and receiver. The
essential thing was the selection of the land. The evidence of it,
as prescribed by the statute, was the descriptive entry to be made
in the register's book. If the essential thing were done the
destruction of the evidence would not destroy
Page 82 U. S. 130
the title. The primary proof of the act done would, of course,
be the record itself. That being lost or destroyed, the acts of the
register and receiver could be substantiated by the next best
evidence which the case admitted of. The question before us is
whether the evidence adduced and received by the court was
conducive to prove the fact, and was the next best evidence to be
had on the subject.
In our judgment, it was both. No record evidence of the fact in
question was required except the entry in the register's book. The
evidence adduced was first the plat of the township so carefully
compiled by McNair. This showed that the lot in question was
designated as "reserved for schools." This designation was copied
from the original plat in the register's office. Here, then, was
evidence of the most convincing character that the lot in question
had been designated by the register and receiver as school lands.
Here was a collateral and contemporaneous record containing
evidence of the very fact respecting the existence or nonexistence
of which the parties and the court were in search. It was not, it
is true, the primary proof required by the statute, but it was
independent proof of the essential fact in issue, and was
sufficient proof to raise the presumption that if those missing
leaves could be produced the primary proof would be found thereon.
It was not so satisfactory as a literal compared copy of those
leaves, but more satisfactory than oral testimony depending on
human memory as to their contents. The books are full of cases to
the effect that if a judgment record, or other record, be lost, the
judgment or other matter may be proved by collateral entries and
memoranda. But, secondly, we have the corroborative evidence
derived from the acts of the county school commissioner in selling
the lands as school lands, as far back as 1832, and the renting of
them as such even before that time, and the defendant's possession
and claim of title of the land as reserved school lands for more
than thirty years, all going to strengthen the other proof and
presumptions in the case.
It would be strange indeed if men's possessions could be
Page 82 U. S. 131
disturbed by the burning of a courthouse, or the loss,
destruction, or theft of a public record, when evidence such as was
adduced in this case could be supplied to show that the acts upon
which their titles depended had been duly performed by the proper
public officers. And courts would be derelict in their duty to the
community if they did not sternly rebuke speculative attempts to
rob people of their just inheritances under such circumstances.
Mere lapse of time and continuance of possession without pretense
of title, or under pretense of a void title, cannot, it is true, be
set up against the government; but long possession is nevertheless
a strong weapon of defense in the hands of one who can show
reasonable proof that the title of the government has been parted
with, and has devolved to him.
As to the sufficiency of the evidence adduced in this case, it
is not the part of this Court, on a writ of error, to pronounce.
That was the province of the court below sitting as a jury. That
court determined it to be sufficient, and found the issue for the
defendant. We think that the evidence was admissible, that it was
pertinent to the issue, and tended to prove that issue on the part
of the defendant, and that the law of the case, as declared by the
court, was correct.
Judgment affirmed.
[
Footnote 1]
3 Stat. at Large 545.
[
Footnote 2]
3 Stat. at Large 787.