The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1866-11-08

| Josiah Metc0lf.
Error 70 ne GircHii Court Of Tallahatchie
County.
j HON. W. l. HARRIS DELIVERED THE
II OPINION or THE COURT.
The defendant In error commenced his ac-
ton Of eieotment la the Circuit Court Of
Iallahatchie County, 10 recover possession
OF the land In tho declaration mentioned
nom the plaintiff in error To this decIara-
! tion the plaintiff IN error filed the general
issue aud there was a trial and verdict for
the plaintiff below; a motion for new trial
which was refused, aud bill Of exceptions
taken snd allowed and writ of error pros
coutcd 90 this Court.
The errors assigned are that the court ex-
eludcd from the jury; LIST The original
patent for the land ia controversy from the
United States 10 Trewola-under whom
plaintiff IN error claims TO hold title, and
2d. That the cOuTt erred In excluding which
was agreed to be considered by counsel, a.
an authenticated copy of the records of the
commissioner of the General Land Office,
showing or tending TO show that the patent
TO 1Tewolla was issued upon regular certih-
cato for the purchase of the land in question
by MIN from the T. S, on the 18th October
1851, when the U. $, was still the owner in
fee thereof
The second assignment Is that the court
trial. From the evidence appearing in the
bill Of exceptions II appears that the plain
till below derived his title from q patent is
sued by the Secretary OF the State of Missis-
sippt 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 9th March
The land In question was swamp or over.
howed land, claimed by defendant in error
to have been granted TO the State of Missis-
sippi by the act of Congress of the 25th
sept 1850, and the plaintiff below adduced
evidence TO show that he had title regularly
under said patent.
The defendants below introduced patent
from the u s. for the same land dated the
Goth day Of March 1868, and then offered to
show that this patent was issued upon GER
tFcdh of purchase by this patentae Of the
land In dispute mo $500, dated the 18th
day of October 1851, under the act Of Con-
gress, entitled IAN act for the relief of pur.
chasers and locaters of swamp and over
flowed lands, approved the I'd March 1886.
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 ct mississippi, TO the commissioners Of
the General Land Office Of the U. s. before
the approval of the same by him, upon the
purchased by Trcwolla.
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
for plaintiff below objected, which
objection was sustained by the Court, and
Ibis presents the real point In issue here.
IL Is true, a. held by this Court In the
'aso Of Fore VS.. Williams, that the first sec
ion OF the act Of Congress, Of the 25th Sep
enber, 1860, grants 10 the State all swamp
nd oyerflowed lands lying within the limits
the state, at the date Of of its passage
nd that 10 Is not necessary that q patent
'oad issue 10 The State of Mississippi, in order
, render the patent from the State to its
endee evidence of a legal title. Bnt IL is
lere held, that under the second section of
10 act Of Congress, the lands so granted
ionld be aseertained and located by the
ithority aud with the approval of the Sec
tary of the Interior, and that the proof in
Iat case showed "A substantial compliance
18th that act, and a sufficient designation
the lands embraced in II, and vested a
mplete legal title to the land In dispute
the patentee under the State, without
ltent from the United States TO the State
Mississippi.
In the case before us wholly different
aims title TO a tract Of land not only not
ltented TO the State of Mississippi under
q second section Of the act Of Congres, but
Tilted from the patent to the State, rs
own by the certificate Of A. u. Dilworth
crctary Of State, introduced by the plain
! himself He eertites that nc was con-
med 10 the State Of Mississippi but not
tented.
The evidence offered by the defendant
low. and ruled out by the Court, tended
show why the land in controversy was
I patented to the State of Mississippi
AT before the ascertainment Of the fact,
NJ II was swamp and overlooked lands,
i before its location by the commissioners
pointed for that purpose, Il was sOld-on
, 18th Of October, l65I,-to Trewolla,
der whom plaiatif in error claims title,
! that although subsequently reported by
d commissioners for aPprosaI this land
8 omitted from the list approved or con-
ned, and no patent for the reasons above
ted, was issued TO the State therefor.
e question In this case Is, not whether
DdteHf 10 The State il necessary to give the
tie and its subsequent or prior vendees, a
al title 20 tbs land. But whether the til
10 any particular swamp or overhowed
dis was vested in the State, until ascer-
nment Of the fact that they were swamp
gyerfiowed lands, and their location a.
h, by commissioners to investigate this
y was Iepoiteu 70 tine secretary OF the
erior, and approved by him.
n tbs case before as, the evidence offered
ded TO show that no such approval was
z made by the Secretary, but purposely
hheld because Of prior sale 20 the pa
tee. hrewolla, under whom defendant
ow claims title
Tie case Of Fore W. Williams. 35th Miss.
49, places the validity Of the plaintiffs
Q upon the facts Of tho asoerfaiamenf, To-
IoH and aPpreral required by the act Of
ngress, which facts IL was held in that
e substantially appeared.
Without such approval by the Secretary
he Interior, exnraE
nc0