Evans v. Board of President of the St. Louis Public Schools

Supreme Court of Missouri

Evans v. Board of President of the St. Louis Public Schools

32 Mo. 27

DecidedMarch 15, 1862

StatusPublished

This text of 32 Mo. 27 (Evans v. Board of President of the St. Louis Public Schools) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Evans v. Board of President of the St. Louis Public Schools, 32 Mo. 27 (Mo. 1862).

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Opinion

Bates, Judge,

delivered the opinion of the court.

This is an action in the nature of a bill in equity. The petition sets forth that on the 2d day of May, 1836, Robert [28]*28Duncan, as a preemptor, entered with the register and receiver of the land office at St. Louis, fractional section 26, township 45 north, range 7 east of the fifth principal meridian, and that he has become by various conveyances the representative of Duncan in said land, and that the defendant has acquired the legal title from the United States to a portion thereof, and that the defendant’s title was acquired by improper and illegal means, and prays that the title of the defendant be by decree vested in him, and the defendant required to convey the legal title to said section to him; that the defendant be perpetually enjoined from setting up or in any way making claim to said section or any part thereof, and that judgment be given the plaintiff for possession of so much of said section as is now in the possession of the defendant, and for damages. The defendant’s answer, among other things, alleges that the supposed certificate of preemption and the certificate of entry, dated May 2d, 1836, obtained by said Robert Duncan, which are mentioned in said second amended petition, were, in or about the year 1845, annulled and cancelled by the commissioner of the general land office, and are consequently null and void.

At the trial of the cause evidence was given of Duncan’s entry, and also of its cancellation. The only instruction asked was given as follows: “ The defendant asks the court to declare the law to be, that upon the pleadings and proof the plaintiff is not entitled to the relief asked.” To which the plaintiff excepted, and judgment was given for the defendant.

The subject of this suit was formerly before this court in the case of Kissell v. The St. Louis Public Schools, (16 Mo. 553.) That case was taken to the Supreme Court of the United States, which conrt held that the entry of Duncan was void, (18 How. Rep. 19.)

The Supreme Court of the United States has also since held, in the case of Jones v. Soulard, 24 How. 41, and expressly decided “ that Duncan’s entry set up in defence in the court below is void, as this court held in the case of Kis[29]*29sell v. The St. Louis Public Schools, 18 How.” In this case, therefore, the entry of December, under which the plaintiff claims, being absolutely void, he has no title whatever, and no right to impeach the defendant’s title in law or equity.

Judgment affirmed,

the other judges concurring.

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Bates, Judge,

delivered the opinion of the court.

This is an action in the nature of a bill in equity. The petition sets forth that on the 2d day of May, 1836, Robert [28]*28Duncan, as a preemptor, entered with the register and receiver of the land office at St. Louis, fractional section 26, township 45 north, range 7 east of the fifth principal meridian, and that he has become by various conveyances the representative of Duncan in said land, and that the defendant has acquired the legal title from the United States to a portion thereof, and that the defendant’s title was acquired by improper and illegal means, and prays that the title of the defendant be by decree vested in him, and the defendant required to convey the legal title to said section to him; that the defendant be perpetually enjoined from setting up or in any way making claim to said section or any part thereof, and that judgment be given the plaintiff for possession of so much of said section as is now in the possession of the defendant, and for damages. The defendant’s answer, among other things, alleges that the supposed certificate of preemption and the certificate of entry, dated May 2d, 1836, obtained by said Robert Duncan, which are mentioned in said second amended petition, were, in or about the year 1845, annulled and cancelled by the commissioner of the general land office, and are consequently null and void.

At the trial of the cause evidence was given of Duncan’s entry, and also of its cancellation. The only instruction asked was given as follows: “ The defendant asks the court to declare the law to be, that upon the pleadings and proof the plaintiff is not entitled to the relief asked.” To which the plaintiff excepted, and judgment was given for the defendant.

The subject of this suit was formerly before this court in the case of Kissell v. The St. Louis Public Schools, (16 Mo. 553.) That case was taken to the Supreme Court of the United States, which conrt held that the entry of Duncan was void, (18 How. Rep. 19.)

The Supreme Court of the United States has also since held, in the case of Jones v. Soulard, 24 How. 41, and expressly decided “ that Duncan’s entry set up in defence in the court below is void, as this court held in the case of Kis[29]*29sell v. The St. Louis Public Schools, 18 How.” In this case, therefore, the entry of December, under which the plaintiff claims, being absolutely void, he has no title whatever, and no right to impeach the defendant’s title in law or equity.

Judgment affirmed,

the other judges concurring.

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32 Mo. 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-board-of-president-of-the-st-louis-public-schools-mo-1862.

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