The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1866-11-06
HON. w L. HARRIS DELIVERED TIE
OPINION OE- IHE COERI

HON. w. L. HARRIS DELIVERED TIE
| OPINION OF TIE COURT.
| The defendant in error commenced his ae-
| ton of eiectment in the Circuit Court OF
| Tallahatchie County, to recover possession
| of the land in the declaration mentioned,
| from the plaintiff in error. To this DECLARE
! tion the plaintiff in error filed the general
| issue and there was a trial and verdict for
| the plaintiff below; a motion for new trial
| which was refused, and bill of exceptions
| taken and allowed and a writ of error pros
| ecuted to this Court.
The errors assigned are that the court eX
| Guided from the jury: LIST. The original
patent for the land in controversy from the
| United States to TrewOlla-under whom
plaintiff in error claims to hold title, and
| ID. That the court erred in excluding which
| was agreed to be considered by counsel as
an authenticated copy of the records of the
| commissioner of the General Land Office,
| showing or tending to show that the patent
! to Trewolla was issued npnn regular certitl-
| cate for the purchase of the land IN question
| by him from the L. S. on the 18th October
| 1851 when the L. 5. was still the owner in
| fee thereof
| The second assignment is that the court
| erred in Overruling the motion for a
| trial. From the evidence appearing in the
| bill of exceptions it appears that the plain
| tiff below derived his title from patent is
| sued by the Secretary of the State of Missis-
/ sippi to one Middleton, dated the 18th day
| of February 1853, and authorized to be is
| sued by an act of the Legislature of the
State of Mississippi, dated the 5th March
! 1852.
The land in question was swamp or over
| flowed land, claimed by defendant in error
! to have been granted to the State of Missis-
| sippi by the act of Congress of the 2Sth
| Sept 1850, and the plaintiff below adduced
| evidence to show that he had title regularly
| under said patent.
| no Il int
| from the L. S. for the same land dated the
! Goth day of March 1858, and then offered to
| show that this patent was issued upon a cer-
| tifcate of purchase by this patentee of the
land in dispute (No. $500, dated the 18th
| day Of October 1851, under the act of Con-
! gress, entitled IAN act for the relief of puT-
| chaserS and lOcateTs of swamp and over
| flowed lands, approved the ID March 1855.
And further, that the tract of land in dis
| pute was omitted from the list of lands re-
| ported by the commissioners appointed to
| select swamp and overlooked lands for the
State of Mississippi to the commissioners of
| the General Land Office of the u. S. before
the approval of the same by him, upon the
ground that the land had been previously
purchased by Trewolla.
All this proof was contained in what was,
by agreement of counsel, considered as a
verified copy of the records of the Office" of
said commissioner of the General Land
Office of the United States.
To the admissibility of this evidence
| counsel for plaintiff below objected, which
objection was sustained by the Court, and
this presents the real point in issue here.
1t is true, as held by this Court III the
| case OF Fore VS.. Williams, that the first sec
| tlOn of the act of Congress, of the 2Sth Sep
| TENDER, 1850, grants to the State all swamp
| and OVerhowed lands lying within the limits
| of the State, at the date of of its passage
and that II Is not necessary that a patent
should issue to the State Of Mississippi, in order
to render the patent from the State to its
vendee evidence of a legal title. But it is
there held, that under the second section of
the act of Congress, the lands so granted
should be aScertained and located by the
authority and with the approval of the Sec
rotary of the Interior, and that the proof in
that case showed a substantial compliance
with that act, and a sufficient designation
of the lands embraced in it, and vested a
complete legal title to the land in dispute
in the patentee under the State, without a
patent from the United States to the State
of Mississippi.
In the case before us a wholly different
question is presented. The plaintiff below
claims title to tract of land, not ouly not
patented to the State of Mississippi, under
the second section of the act of Congress but
omitted from the patent to the State, as
shown by the certificate of A b. Dilworth
Secretary of State, introduced by the plain
tiff himself He certities that lit was con-
firmed to the State of Mississippi but not
patented.
The evidence offered by the defendant
below, and ruled out by the Court tended
to show why the land in controversy was |
not patented to the State of Mississippi. |
That before the ascertainment of the fact, |
that it was swamp and Overtlowed lands, |
and before its location by the commissioners
appointed for that purpose, it was SOld-on |
the 18th of October 185l.-tO Trewolla, |
under whom plaintiff in error claims title, |
and that although subsequently reported by |
said commissioners for Approval, this land |
was omitted from the list approved or con- |
tirmed, and no patent for the reasons above
stated, was issued to the State therefor. |
The question in this case is, not whether |
a patent to the State is necessary to give the |
State and It's subsequent or prior Vendees, a |
legal title to the land. But whether the tt |
tie to any particular swamp or overlooked |
lands was vested in the State, until ascer- |
tainment of the fact that they were swamp
or overlooked lands, and their location as |
such, by commissioners to investigate this |
fact, was reported to the Secretary of the
Interior, and approved by him.
In the case before us, the evidence offered |
tended to show that no such approval was |
ever made by the Secretary, but purpOsely
withheld because of prior sale to the pa
tentee. hrewolla, under whom defendant !
below claims title
The case of Fore VS.. Williams, 35th Miss
p. 333, places the validity of the plaintiffs !
title upon the facts of the dscertainn.eRt, Io-
cation and approval required by the act of
Congress, which facts it was held in that
case substantially appeared.
Without such approval by the Secretary
of the Interior, expressly appearing in ev-
idence, or by necessary Inference, from a
patent to the State, for the particular land
in controversy, no title vested in the State
thereto, and none could be conveyed by the
patent to the plaintiff below
1t was error therefore to exclude the ev-
idence proposed to be introduced to establish
these facts.
Let the Judgment be reversed, cause re
manded and reRire de moro awarded
The President has ordered a pardon
to be issued to Geo. A. Trenholm, of
South Carolina who 1raC Cnnrotnr,- nf