Williams v. Carpenter , 35 Mo. 52 ( 1864 )

DeydbN, Judge,

delivered the opinion of the court.

When this case was here before (28 Mo. 453) this court decided — Judge Scott delivering the opinion of the court— that where a grant, though by mistake, is made to one, another cannot divest him of his title by showing that he was the person for whom the bounty was intended. If the government, on a false suggesion or by mistake, has granted a patent, it can only be avoided by scire facias or other suitable proceeding instituted directly for that purpose. It can not be done in a collateral action. The circumstances of this case do not warrant the application of the principle, that by-parol evidence one may show that he is the person named as grantee or patentee. The case was sent back to the Land Court, where it was again tried, but without any change in the pleadings, and the plaintiff recovered a verdict and judgment as in the first instance.

This judgment and the former decision cannot stand together. The plaintiff’s theory is that Joseph Lacroix, under whom he claims title, was the person who made the proof before the recorder, and was the person who was intended to be confirmed, and that the name of Louis Lacroix instead of Joseph Lacroix was inserted in the certificate of confirmation as confirmee by the mere mistake of the recorder. The utmost that can be said for the plaintiff’s title, upon his own theory, is that it is an equitable title. Such a title will not support an ejectment.

The petition being merely a petition in ejectment contains no allegations to which proof of the alleged mistake could apply, and for this reason, if no other, it was not competent for the plaintiff to show the supposed mistake. If the plaintiff can recover at all, it is because he has the right to have the certificate of confirmation reformed and the legal title vested in himself.

To accomplish this result, the petition should have such shape as would admit the requisite proof and sustain a decree reforming the instrument. The question whether the instrument is the subject of reformation has not been discussed, and we therefore give no opinion on this point; but if it is, we have no doubt this relief can be given and possession recovered under a proper frame of the pleadings in the one action.

Let the judgment be x’eversed and the cause remanded.

The other judges concur.