Gilleylen v. Isbel

81 So. 161, 119 Miss. 566

Opinion

Ethbidge, J.,

delivered the opinion of the court.

The appellee, Isbell, filed suit in the circuit court of Monroe county in ejectment for the possession of certain lands and for use and occupation by the defendants.

The defendants filed a plea in abatement setting up that the defendant Grilleylen purchased said land on March 6, 191.6, at the trustee’s sale, said deed of trust being executed by one Flippo, who entered upon the said land under the homestead law of the United States and had perfected his right to a patent, but had not made application for the same, and that thereafter Flippo executed a deed of trust to the defendant Grilley-len and fraudulently conspired to defeat Grilleylen of his rights thereunder, attempted to cancel his entry at the land office of the United States at Jackson, Miss., and that the defendant Gilleylen is now in possession of the property and that the legal title to the land is still in the United States government, and that no patent had been issued to any one and that the United States land department has exclusive jurisdiction to determine all controversies relating to public land that may arise before the isuance of the patent.

The plaintiff, in reply to the plea in abatement, denied that the defendants were in the lawful possession of the land, and denied that Flippo was entitled to a patent when he gave said deed of trust, and alleged that he had never paid the purchase price nor received a final receipt, and alleged that Flippo had canceled and relinquished to the United States government all his rights and claims to the said land, and that the land office accepted the said surrender in cancellation of the said entry, and that thereafter the plaintiff made a bona fide entry of said lands as a homestead, and said entry was approved by the land office, and that the plaintiff had entered into the lawful possession under the said entry, and had received certificates of entry from the United States, and that the defendant Gilleylen by force and other unlawful means unlawfully did oust and dispossess the plaintiff, and that the United States land office and department had fully acted, and that there is no other thing for the land office to do in the matter, and that the court has jurisdiction. It further alleged that the deed of trust held by Gilleylen was unlawful, and that the said trustee’s sale was made at a time when Gilleylen had no rights in and to the said land, and that Gilleylen is not entitled to any homestead interest. -

The case was tried before the judge without a jury, and the plaintiff introduced certificate of entry from the United States land office showing that he had entered the said lands, and also certificates showing the cancellation and surrender of the entry of' Flippo prior to the entry of the plaintiff. The plaintiff also introduced evidence to sustain his claim for use and occupation. The trial judge found for the plaintiff and awarded one hundred and fifty dollars for use and occupation. The defendants introduced no evidence as to the value of the use and occupation of the land, but after the judgment was rendered filed a motion for a new trial, and also a motion to have the cause transferred to the chancery court. In the motion for a new trial they set up that the judgment for use and occupation was in excess of the value of the use of premises, and that the judgment was excessive. Motion for a new trial was overruled, and likewise the motion to transfer to the chancery court. From this judgment the defendants below appeal here.

It is insisted here that ejectment is not the proper remedy, and.will not lie in this case, because the plaintiff did not have title. It is also insisted that the state court had no jurisdiction to award possession to the entrymea from the government of the United States, where he had not perfected his right to a patent. Section 1801, Code of 1906, (section 1434, Hemingway’s Code), reads as follows:

“The action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the- possession of the land sued for and demanded.”

This section appeared in the Code for the first time in the Code of 1892'.

Section 1959, Code of 1906 (section 1619, Hemingway’s Code), reads as follows:

“All certificates issued in pursuance of any act of Congress by any board of commissioners, register of any land office, or any other person authorized to issue such certificate, founded on any warrant, order of survey, entry, grant, confirmation, donation, pre-emption, or purchase from the United States of any land in this state, shall vest the full legal title to such land in the person to whom such certificate is.granted, his heirs or assigns, so far as to enable the holder thereof to maintain an action thereon, and 'the same shall be received in evidence as such, saving the paramount rights of other persons.”

We think these statutes give plaintiff right to maintain this suit. The judge had evidence to support his finding of the value of the use and occupation and the judgment is accordingly affirmed.

Affirmed.