Wilcox v. Jackson , 109 Ill. 261 ( 1883 )

Mr. Justice Craig

delivered the opinion of the Court:

The only question properly presented by this record is, whether the court erred in excluding the exemplification of the records of the general land office, signed by the commissioner, under his official seal. This document was the foundation of the plaintiff’s title, and if it was competent evidence, the decision will have to be reversed.

But one specific objection was made to the evidence by the defendant at the time it was offered, and that was, that no copy of the scrip was attached to and formed a part of the offered evidence. We do not think that the evidence was defective for the reason it did not contain a copy of the scrip. The object of the testimony was to show that Julia Gamell (formerly Martin) had located the land in question under the act of Congress of July 17,1854, and we do not perceive how a copy of the scrip could throw any light on that subject had it been a part of the record. The act provides that the scrip may be located upon any of the lands within the reservation not occupied by actual settlers of the half-breeds or mixed bloods, etc., or upon any other unoccupied lands subject to preemption or private sale, or upon any other unsurveyed lands not reserved by the government, upon which they have respectively made improvements. The act also provides that no transfer or conveyance of any certificate or scrip shall be valid.

The record offered in evidence for the purpose of showing a location of the land, contains, first, the application of Julia Gramell (formerly Martin) to locate scrip No. 232, letter “E,” for 160 acres of land, on the land in question. This application was made on the 21st day of May, 1878. The record contains, second, the certificate of the commissioner of the land office, who was also ex-officio register and receiver, showing that the scrip was located on the 8th day of July, 1878, on the land in controversy, under the act of July 17, 1854. In his certificate to this exemplification of the record he certifies that eight of the certificates have been entertained for land in Kalamick Lake, township 37 north, range 14 east, third principal meridian, Illinois, to-wit: Nos. 232, letter “E,” 160 acres. Had a copy of the scrip been made a part of this exemplification of the record, we fail to see how it could throw any light on the transaction. Suppose a quarter section of land is entered by a person holding a land warrant, the record of the entry made by the register and receiver is the proper evidence that such person has purchased the land of the government, and not a copy of the land warrant with which the land was entered. The same principle applies here. The record of location made by the commissioner, who was ex-officio register and receiver, under the scrip, is the evidence of that fact, and a copy of the scrip attached to the record would, in our judgment, have no more bearing on the question of location than a copy of a land warrant would where an entry of land has been made under a land warrant. The scrip is used by the person to whom it is issued, in the one case, as a payment for the land upon which it is located. In the other case the land warrant is used as payment, and when it becomes necessary to prove title from the government, we do not think a copy of either would be material. In Seely v. Wells, 53 Ill. 120, it was held that “the exemplification of the books and records of the general land office, certified under the seal of the office, is competent evidence in our courts. ” Indeed, there can be no controversy upon that question.

It is, however, said that the certificate of the commissioner shows that the land was not located, but entertained for location. It is true that the commissioner, in his certificate, says eight of the certificates have been entertained for land, but in the record he expressly certifies that the scrip was located. It is as follows: “I hereby certify that the within scrip has this 8th day of July, 1878, been located on,”—then follows the description of the land. This language is so plain there can be no doubt in regard to the meaning of the record. We think the record upon its face showed the location of the land in controversy, and that the court erred in excluding it as evidence.

But it is said if the record was sufficient on its face to be admitted in evidence, it was incompetent for the purpose of establishing title, as it was void on its face. This position is predicated on the supposed fact that the land in question is located in Calumet lake, a navigable body of water, and hence not subject to entry. Whether this land was subject to preemption or private entry, or whether it was or was not subject to location under the scrip, is a matter that does not arise on this record. There are many things that the court may take judicial notice of. For example, of the division of the State into counties, of the townships in the county, as numbered, according to the government survey, and many things of a like character; but whether a lake existed where this land is situated is a matter which we can not know, unless it is established by the record. If this land was not subject to location, under the act of 1854, for the reason that it was a part of Calumet lake, or if the land had passed from the government, those and all kindred questions were matters of defence on the trial.

We merely decide, on this record, that the court erred in excluding the exemplification of the record signed by the commissioner and offered in evidence by the plaintiff, and for that error the judgment will be reversed and the cause remanded.

Judgment reversed.