Combs v. Jelly

[499]By the Court,

Rhodes, J. It appears in this case that on the 24th of March, 1862, the plaintiff commenced an action against Elijah Shepherdson and M. D. Shepherdson to recover a certain sum of money, and on that day caused an attachment to be issued and levied upon the premises in controversy. Judgment was afterwards entered, execution was issued, the premises were sold and conveyed by the Sheriff to the plaintiff, the deed being executed September 12, 1863. In 1858 Elijah Shepherdson and M. D. Shepherdson were in possession of the premises, and so remained up to September, 1861, when M. D. Shepherdson left the premises. On the 25th of February, 1862, Elijah Shepherdson sold and conveyed the premises to the defendant. The conveyance purports to be executed by E. and M. D. Shepherdson, but was in fact executed only by Elijah Shepherdson. On the 8th of December, 1863, the defendant made an application to the State Locating Agent to locate the premises as a portion of the lands to which the State was entitled under the grant of seventy-two sections of land by Congress to the State for a State Seminary. Such proceedings were thereupon had that the location was made, and was approved by the proper officers on the part of the State and by the Register and Receiver of the United States Land Office at Marysville, and on the 5th of October, 1863, the Register of the State Land Office issued to the defendant a certificate of purchase.

The plaintiff sued in ejectment to recover the possession of the premises. The Court below found for the plaintiff as to the undivided half of the premises. The defendant appeals from the judgment and from the order denying his motion for a new trial.

The Court found, among other things, that the Shepherd-sons were tenants in common of the premises; that by the deed from Elijah Shepherdson to the defendant he became a tenant in common with M. D. Shepherdson, and that by the execution of the Sheriff’s deed the plaintiff became the owner [500]of the half of the premises held by M.' D. Shepherdson, and thereupon became a tenant in common with the defendant. In respect to the selection and location of the lands as State Seminary lands, the finding is as follows: “ His (the defendant’s) first proceeding in that case was a fraud that will vitiate everything that it touches. He -was compelled to make an affidavit that there was no valid claim to the land adverse to the one he held, and that there were no improvements upon the land other than his own. He probably believed this to be true, from his deed from E. Shepherdson, not knowing the legal effect of it. But the legal fact wras that he was the owner of only an undivided half, and M. D. Shepherdson the other half, as well as of the improvements, and of the share of M. D. Shepherdson plaintiff is now the owner. Defendant’s present claim is not a title, but a certificate of location which may ripen into a title .hereafter. But an absolute title from the State or United States would place him in no better position.”