Watson v. Robey

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was an action of ejectment. The plaintiff claimed under the location of school-land warrants, and the defendant under the provisions of the act of April 20th, 1852, prescribing the mode of maintaining and defending possessory actions on public lands in this State. In the Court below, the defendant had judgment, and the plaintiff appealed.

There is only one point, in the case which it is necessary to decide.

The entry was made and recorded in the office of the eounty recorder, and not in the county clerk’s office, as required by the fourth section of the act. (Wood’s Digest, 515.) But there was proof given upon the trial tending to show that the defendant had actual notice of the location. The Court below instructed the jury, substantially, that the record was required, and without it the location was void.

We think this was error. The object of the record was solely to impart notice to subsequent locators and settlers; and when that object was attained, the purpose of the record was accomplished. This provision is like the provision of the act concerning conveyances, which requires the record of certain instruments. A party cannot forfeit his rights by a mistake that injures no one. The defendant .cannot complain that he was injured by a failure to record in the proper office, when he knew the fact without the record.

Judgment reversed, and cause remanded for further proceedings.