Boyer v. Williams , 5 Mo. 335 ( 1838 )

Edwards, Judge,

delivered the opinion of the court.

This was an action of trover, commenced by Williams against the Boyers, to recover damages for the conversion of a crop of wheat. The Boyers pleaded not guilty, and Williams joined issue on this plea. Yerdict and judgment for Williams. The Boyéis moved for a new trial, and the court overruled the motion.

On the trial, Williams proved that in August or September, 1836, he sowed down a field of wheat, which he cut in July following. The Boyers forbid Williams to cut the wheat, and claimed it themselves, and afterwards-took it off. The Boyers then gave in evidence a certificate of the receiver of the land office at St. Louis, dated the 13th day of September, 1836, for eighty acres of land, including the field of wheat sowed by Williams as above stated.

The defendants moved the court to instruct the jury: 1. That if they believed from the evidence that the defendants entered the land with the United States in September, 1836, upon which the wheat was grown, which is the subject matter of this action, and that said wheat was sown by plaintiff", on said land, in August or September, 1836, who cut the same against the consent of the defendants, then the plaintiff cannot recover in this action.

2. That the purchaser of land from the United States acquires title to the land so purchased, and to every thing growing at the time upon the land so purchased. These instructions the court refused, and the defendants excepted.

The errors assigned, are: 1. That the court refused 4he instructions asked; and 2d, that the court overruled the motion for a new trial.

^Uc fandla wheat; a few days after,B- entered ¿nsiii^harvestT the wheat was cut by A. though af-^¡nonf'from b" who, after it was cut; carried off brou^ht^rovM Held” that B. in the title of the United States, acquired the right to everything growing on the land, and consequently to the wheat sown by A.; and that the doctrine of emblements had no application here, the seeding not having been Segal.

In refusing the instructions asked by the defendants, the court clearly erred. The United States have com-píete title to the public lands, aud complete title to every thing growing on the public lands. The purchaser of ■land from the United States acquires by the purchase the same title to the land, and to every thing growing upon the land, which the United States had before the sale. The doctrine of emblements does not apply here, To entitle the party to emblements, the sowing of the land must have been legal. The court erred in refusing to grant a new trial also. The verdict of the jury was against the law and against the evidence. The ment of the circuit court ought therefore to be reveised, and the other judges concurring, it it is reversed.