Methodist Episcopal Camp Ground Ass'n v. Brown

62 So. 276, 105 Miss. 313

• Court: Mississippi Supreme Court
• Decided: March 15, 1913
• Status: Published

Opinion

Keed, J.,

delivered the opinion of the court.

Appellee filed an action of ejectment against appellant. Upon the trial, he introduced as his proof of his right to recover, a .letter, or writing, duly signed by both the register and receiver of the United States land office .at Jackson, Miss., directed to him and stating that his application to make homestead entry had been allowed, subject to his further compliance with the law and regulations applicable thereto, and that no further notice would be received by him of such allowance. In connection with this writing he introduced also the receipt from the register of the land office of the amount of the fees and commissions received as the first payment by ap-pellee as entryman, aggregating twelve dollars and eighty cents. In both the writing, or letter, and the receipt, the land entered, amounting to eighty-two and sixty-six hundredths acres, is described. There is a statement, at the end of the receipt that such receipt “must he issued at the time the money is received.” Plaintiff thereupon rested, and the defendant offered to show by witness that the trustees of the Methodist Episcopal Church South, having charge and control of the camp ground located on the land in controversy, were then holding and occupying the land, claiming under a grant as school section land in Wilkinson county. Thereupon the court, granted a peremptory instruction for the plaintiff.

Section 2289 of the United States Statutes (U. S. Comp. St. 1901, p. 1388) provides for the entry of one-quarter section, or less, of unappropriated public lands-for homestead purposes. Section 2290. of the United States Statutes prescribes the affidavit to be made by the person applying to enter the land, and the amount of the payment then to be made, and states that upon the-filing of such affidavit and the payment of such amount that “he or she shall thereupon be permitted to enter the amount of land specified.” Section 2291 (U. S. Comp. St. 1901, p. 1390) declares that “no certificate, however, shall be given, or patent issued therefor, until the expiration of five years from the date of such entry. ’ ’ At that, time, if the statute has been complied with, by proof that the entryman has resided upon the land or cultivated the same during the period named, and 'that no part of the land has been alienated, except as authorized by law, and that he will bear true allegiance to the United States-government, he shall be entitled to a patent.

Until the end of the five years the title in the person entering the land does not become complete. His estate during the time is on condition. It has been decided, however, that the receiver’s receipt, issued to the homestead entryman, under section 2290, confers sufficient title to enable him to maintain, before the expiration of five years, an action of ejectment or a statutory action in the nature thereof. Case v. Edgeworth, 87 Ala. 203, 5 South. 783. The Louisiana courts have decided that such receipt will he sufficient to maintain a petitory action. Broussard v. Broussard, 43 La. Ann. 921, 9 So. 910. The court said, in rendering the opinion in this case, that: “Wé have heretofore had occasion to announce this principle very emphatically, as follows: ‘From repeated adjudications of our courts on the subject, we gather the settled doctrine to he this: That wffilst a receiver’s receipt or certificate is not of equal dignity with a patent, as showing the complete and absolute divestiture of the title of the government, yet that land, so held under the former, enters fully into the domain of private property; that such certificate of entry is sufficient evidence of title to support a petitory action; that the land is subject to taxation, unless reserved therefrom by special congressional legislation; that it is the subject of any Idnd of contract under the operation of our laws touching the rights of each and every class of persons in their various and manifold relations.”

When the entry was made by appellee, the title to the land was in the United States. The record does not show that appellant has title which could be successfully asserted against a person claiming through the United States. We recognize the general rule that, in ejectment, the plaintiff must recover upon the sufficiency of his own title. In this case the receipt of the receiver of the United States land office was in the usual form. We may concede that, without statutory provision relative to a certificate of entry as evidence, such receipt did not show a complete or legal title in the appellee; but we have such statutory provision in section 1959 of the Code of 1906, which is as follows: “All cetrificates issued in pursuance of any act of Congress by any board of commissioners, register of any land office, or any other person au-. thorized 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.” In rendering the opinion in Case v. Edgeworth, supra, the court said:“Though the title of the plaintiff does not become complete until the conditions have been performed, the receipt given by the receiver of the public money in full,, for lands entered under section 2290, vests in the plaintiff, under the statute of this state, a legal title sufficient to maintain an action of ejectment, or the corresponding statutory real action, and must be received in evidence-of such title in such action.”

In section 1959 it is stated that all certificates issued upon any entry shall vest the legal title therein, so as to-enable the holder thereof to maintain an action thereon. We believe that the papers shownin the record, the writing, or letter, and the receipt, are sufficient to vest title-in the appellee, so as to enable him to maintain his action of ejectment. In the case of Hiawannee Lumber Company v. McPherson, 95 Miss. 589, 49 South. 741, this, court held that the receiver’s certificate, issued to one in possession of public land claiming it as a homestead under the statute of the United States (section 2290), constitutes a title which will support an action for cutting- and removing timber from the land. We find but little-difference in substance between the receipt or certificate-in that case and the one presented in this case.

Counsel for appellant contends that this case is controlled by the opinion in the case of Weztbrook v. Block, which is not reported in the Mississippi reports, but is. contained in the publication of 2 Mississippi Decisions,, p. 720. It is stated in the opinion in that case that the-receipt of the receiver is not sufficient evidence of his; right to possession of the’ land, and that it does not: amount to a certificate, as provided in section 1623, Code of 1880, which is the same as section 1959 of the Code of 1906, hut that the proof of the entry of the land must he made by the record of the hooks and files of the register of the land office. We do not think, however, that that case should control the one before us, hut rather that this case should follow the decision of this court in the case of Hiawannee Lumber Company v. McPherson, supra, which, in effect, overrules Weztbrook v. Block. We believe that the papers from both the receiver and the register of the land office in this case are sufficient to entitle appellee to possession under our statute. They certainly contain all the necessary facts to show that the entry has been made in accordance with the statute. They set forth the original information to the entryman, and, we think, in effect constitute the certificate to In'm that his application to make a homestead entry has been allowed. The records of the land office could show no more. Such record would be practically a copy of the originals presented to the court. We again mention that the papers conveying the information to the entryman are officially signed by both the register and receiver, and that it is shown to be the custom or rule and regulation of the land office that the receipt should be issued.

In the light of decisions of other courts, as well as this court, we are led to conclude that the title vested in the appellee, as shown by the receiver’s receipt and statement of the register and receiver, is sufficient for him to maintain his action of ejectment.

Affirmed.