
    Ansley vs. Peterson.
    Evidence : (1) Letter from commissioner of land office, when admissible. (2) Whether an exemplification from records of land office is admissible, qumre. (8,4) Watwreof testimony admissible to prove alterations of written instruments.
    
    1. In ejectment, where it became important for plaintiff to show tbat he located the land under a bounty warrant in 1865, and not in 1854, a letter from the commissioner of the general land office to him, dated Dec. 12,1865, proposing that plaintiff should accept and locate said land in lieu of another tract, which he had formerly located under the same warrant (such first location having been cancelled), was admissible in evidence in his behalf, his letter accepting the proposal being also in evidence. The commissioner being the agent of the government for transacting such business, the letters were the best evidence of the contract between plaintiff and the government.
    2. Whether a copy, certified by said commissioner, of a“ statement on the records of this office [the general land office] in relation to the location, cancellation and re-instatement thereof, with [a certain numbered] bounty land warrant, for forty acres, act of 1850, by T. A. [the plaintiff],” and “a true and literal exemplification thereof, taken from the said record,” were admissible in evidence, qumre. If such a statement of record is required or authorized by an act of Congress or the practice of the land department, perhaps a duly certified transcript of it would he admissible; otherwise not.
    3. It being necessary for plaintiff to show that a duplicate certificate of the entry of land by him, under said warrant, issued by afederalland officer in this state in 1854, and sent by him to the general land office in 1865, was altered after it reached the latter office, he might showit by the testimony of witnesses who had seen the instrument prior to such alteration, but who had not been present when the alterations were made.
    4. Alterations in written instruments may also be shown by duly certified fac-similes or exemplifications thereof, when the party has no power to produce, nor the court to compel the production of, the instruments themselves, as where they are public records beyond the jurisdiction of the court.
    APPE AL from tbe Circuit Court for La Fayette County.
    Action of ejectment; tbe opinion states the case; verdict and finding for defendant, and a motion for a new trial being overruled, plaintiff appealed.
    P. A. Orton, Jr., for appellant.
    
      Henry S. Magoon, contra,
    argued, among other things, that the certificate of the commissioner of the general land office, reciting a history, was properly excluded, since such certificate could not take the place of a deposition by the commissioner, and because no law of congress or of the state authorized the substitution of such certificate for a deposition. Oates v. Winslow, 1 Wis., 650; Bigelow v. BlaJce, 18 Wis., 520; Farrand v. Northwestern B. B., 21 Wis., 435; Hammond v. Norris, 2 Har. & J., 130; 1 Wash. C. C., 333; 4 Cranch C. C., 466; 17 How., 611.
   LYON, J.

Ejectment for the S. E. i of the S. E. ¿ of section 24, in township three, north of range four east, in La Fayette county. The plaintiff claims title by patent from the United States, and the defendant under a tax deed. The controversy turns upon the true date of entry or location by the plaintiff of a military land warrant upon the land, whether the same was the 27th of July, 1854 or the 29th of December, 1865. Tbe plaintiff insists tbat tbe latter was tbe true date of bis location, whilst tbe defendant contends for tbe former. Tbe patent to tbe plaintiff bears date February 10, 1866. To determine this controversy it became necessary upon tbe trial for tbe plaintiff to explain or sbow tbat certain alterations bad been made in tbe certificate of location and in bis application to locate, botb of wbicb now appear upon tbe files of tbe general land office at Washington as tbe foundation of bis title, and purporting to give tbe date of July 27, 1854, as tbat of tbe location. Tbe application and certificate on file in tbe general land office are tbe same made and issued at tbe local land office at Mineral Point, in this state, on tbe 27th of July, 1854, and subsequently transmitted to Washington, and tbe effort on tbe part of tbe plaintiff was to show tbat tbe alleged alterations bad been made without bis knowledge or consent by some person in tbe general land office, and after tbe papers bad been filed there. Tbe alteration claimed in tbe certificate consisted in tbe erasure of tbe letter “N” and substitution of tbe letter “ S,” in tbe description “ S. E. quarter,” as it now occurs, thus making tbe certificate read, “ S. E. i of S. E. quarter,” instead of S. E. £ of N. E. quarter,” as originally made. Tbe alteration claimed in tbe application was similar, tbat tbe “N” bad been changed'to an “S,” and tbe letter “r” to “m,” in tbe word “North,” so tbat it reads “South East quarter of South East quarter,” in place of “ South East quarter of North East quarter,” as first made and signed by tbe plaintiff.

Tbe controversy arose and the alteration is shown to have come about in this way.. On tbe 27th of July, 1854, tbe plaintiff applied at tbe local land office to locate military land warrant numbered 84,490, issued under tbe act of congress of September 28th, 1850, upon tbe south east quarter of tbe north east quarter of tbe section, and bis application was received and tbe location made and tbe proper duplicate certificate issued. Upon tbe application with warrant annexed and tbe certificate being for.warded to tbe general land office at Washington for tbe patent to issue, it was ascertained that tbe location conflicted witb a prior one made on tbe 17tb of October, 1851, and tbe same was accordingly cancelled by direction of tbe commissioner. This took place February 23d, 1856, and tbe plaintiff was notified of tbe cancellation tbrougb tbe local office. Thus matters rested until December, 1865, when, tbe land warrant of tbe plaintiff still remaining in tbe possession of tbe government, some correspondence took place between bim and tbe commissioner of tbe general land office, in wbicb tbe latter proposed to tbe plaintiff to accept of tbe south east quarter of tbe south east quarter of tbe same section wbicb was yet vacant and subject to entry or location in place of tbe south east quarter of tbe north east quarter, first located or attempted to be with tbe warrant; and tbe plaintiff accepted such proposal and immediately transmitted to tbe commissioner bis duplicate certificate of the first attempted location in order that be might receive a patent for tbe tract of land last described. This appears from the copy of tbe plaintiff’s letter to tbe commissioner dated December 19th, 1865, wbicb comes certified from files of tbe general land office under tbe seal of that office and tbe signature of tbe commissioner, and wbicb was received in evidence on tbe trial below. On tbe 29th of tbe same month tbe commissioner notified tbe register and receiver of tbe local office, then removed to La Orosse, of tbe change or substituted location, speaking of it, however, as tbe location originally made “ and erroneously can-celled February 23d, 1856,” and wbicb be said “has been reinstated upon tbe south east quarter of south east quarter, 24, 3, 4, wbicb action you will note in a proper manner upon your records.” As already stated tbe patent was issued to the plaintiff on tbe 10th of February following.

Tbe evidence introduced by tbe defendant to show that tbe location was made in July, 1854, and consequently that tbe land was taxable in 1857, when tbe taxes were levied under •wbicb be acquired bis deed, consisted of certified copies from tbe general land office of tbe certificate and application in their alleged altered form. On tbe back of tbe application to locate, however, were written in red ink, in order to make tbe copy correspond with tbe original on file, tbe words and figures following: “location cancelled Eebr’y 28, ’56, S.”, and over or through tbe same was drawn a line of erasure in black ink, and immediately underneath, in tbe same kind of ink, was written: “ Cancellation rescinded Dec. 29, 1865, Turner.”

To rebut tbe case thus made by tbe defendant, tbe plaintiff introduced fac-similes or exact exemplifications of tbe application and certificate as they appeared on' tbe files of tbe general land office, duly authenticated by the signature of tbe commissioner and seal of tbe office, and to which was attached a note, marked “A,” “for explanation of erasures and corrections,” as stated and referred to by tbe commissioner in bis certificate. From these exemplifications, now before us for inspection, it appears very plainly that tbe letter “2V” in tbe word “North” in tbe application has been erased, and tbe letter “N” substituted. Parts of tbe letter UN” as once written, are still visible, tbe same not having been completely erased. Tbe change of tbe letter “r” to a “u” also clearly appears. Tbe letter, as now, is awkward and contracted for want of space, and clearly remodeled from tbe former “r.”

Written across tbe face of tbe same document and erased by a line running through them are tbe following words and figures: “Location cancelled, see letter to E. and E., Feb. 28, ’56, S.” By “ E. and B.” we understand register and receiver of tbe local land office. Upon one margin and on tbe face of tbe paper is tbe following endorsement in writing: “ Location reinstated, Dec. 29,1865. See letter to E. and B., La Crosse, Wis.” Tbe following written entries also appear upon tbe opposite margin: “ See letter from locator, Dec. 19th, 1865, accepting SE. SE. 24, 3 U. 9 — 67, 904. Turner.” See Begr’s Beport, April 15th, 1856, filed with Wt 24, 185, 160, 1850, Turner.”

And in tbe certificate tbe erasure of tbe “ N ” and writing of tbe “ S,” in description “ S.E. quarter,” is equally obvious. Some of tbe lines of tbe former letter “N" quite clearly appear, notwithstanding tbe attempt made to remove them.

Tbe note “A.” attached to these exemplifications, reads as follows: “ Note. — Tbe only erasure and correction found in tbe papers referred to, consists in changing tbe description of tbe land in tbe application and duplicate certificate from tbe S.E. 4 of N.E. 4 to S.E. 4 of tbe S.E. i, as per report of tbe register and receiver of July 15th, 1856, which states that tbe records of them office show that warrant No. 84,490 was located on tbe S.E. i of S.E. 1, Sec 24, T. 8, R. 4, E.; and Thomas Ansley’s letter of acceptance, dated Deo. 19th, 1865, which states: “ In conformity with your proposal, I accept of tbe S.E. 4 of the S.E. 4, 40 acres, in place of S.E. 4 of N.E. 4, located with military land warrant No. 84,490, sea 24, 8, 4 E.”

In addition to tbe foregoing and authenticated by tbe same certificate of 'the commissioner, was a copy of tbe entry of tbe location made at Mineral Point, Wisconsin, land office, with bounty land warrant No. 84,490, for forty acres, by Thomas Ansley, on tbe 27th day of July, 1854, as taken from tbe abstract of locations reported to tbe general land office, by tbe register and receiver of tbe land office at Mineral Point, for tbe month of July, 1854, and still on file in tbe general land office. This abstract showed tbe location at that time to have been made upon tbe south-east quarter of tbe north-east quarter of tbe section.

Tbe other evidence which tbe plaintiff was permitted to give, consisted of a duly certified copy of his letter to tbe commissioner dated December 19, 1865, and a copy of tbe letter of instructions of tbe 29th of tbe same month, addressed by tbe commissioner to tbe register and receiver of tbe land office at La Crosse.

Having first established its genuineness by tbe testimony of a witness and also tbe official character of tbe writer, tbe plaintiff offered in evidence an original letter from tbe commissioner of the general land office to himself, dated December 12, 1865. The letter was objected to and was rejected. The letter was the same alluded to in the letter of the plaintiff to the commissioner, dated the 19 th of the same month, and which was in evidence, and the purpose of the offer appears to have been to show the proposal of the commissioner to the plaintiff to accept the S.E. qr. of the S.E. qr. in lieu of the S.E. qr. of the N.E. qr. of the section, which proposal, it appeared, the plaintiff had accepted in his answer to the communication. ¥e see no objection to the offer and no reason why the letter should not have been received. It differs entirely from the question presented in Bovee v. McLean, 24 Wis., 225. The plaintiff was negotiating with the government through its proper department, the land office, for the purpose of getting back his land warrant, or having the matter in some way properly arranged, and he received the proposition contained in the letter, which he subsequently accepted, and the business was consummated in that manner. As an agent of the government, representing its rights and interests and authorized to contract for it, the commissioner could do so by letter, and his letter, submitting a proposition which had been accepted, was admissible in evidence. It was admissible for the purpose of showing what the contract was, and was the highest and best evidence which could be adduced.

Whether the document certified by the commissioner to be a “ copy of a statement on the records of this office, in relation to the location, cancellation and re-instatement thereof, with bounty land warrant No. 84,490, for 40 acres, act of 1850, by Thomas Ansley,” and “a true and literal exemplification thereof, taken from the said record,” was admissible in evidence or not, is a point of more doubt. If such a statement of record is required or authorized by the laws of congress or the established practice of the land department, then perhaps a duly certified transcript of it would be admissible, but otherwise not. We are not informed as to the laws of congress on this subject nor the practice of the land department.

But the proef offered bj the testimony of the plaintiff and of the witness Hill, to show that the duplicate certificate issued to the plaintiff on the 27th of July, 1854, and held by him until December 12th, 1865, when it was sent to the commissioner at Washington, had been altered after it reached the general land office, without the knowledge, consent or authority of the plaintiff, was admissible. It is true the witnesses did not propose to testify that they were present and saw the alteration made, or that they knew who made it, but only that they knew the fact that it had been made. Better or more direct evidence than this of an alleged alteration of a written instrument can seldom be produced, and we are at a loss to perceive upon what ground it was rejected.

But without the aid of any of the documentary evidence and testimony which was offered and rejected, we think the alteration was very clearly and sufficiently shown by the evidence which was admitted: The evidence admitted, leaves not the slighest doubt in our minds, and it seems from the language of the charge that it would not have left any in the mind of the learned judge, before whom the cause was tried, had the case been one where the altered writings themselves were produced and exhibited before the court and jury. He charged the jury: “ On consideration, I do not think that any of the testimony introduced by the plaintiff is admissible to prove an alteration of written instruments not before the court.” It is very true that the original instruments, could they have been produced, would have afforded much more satisfactory evidence. But in this case it was impossible to produce them, since no subpoena would take them out of the land office or compel an exhibition of them in court. The plaintiff produced the next best evidence possible, fac-similes or copies as literal and exact as could be made, duly authenticated as required by law, and no more could be required of him. By this and other means and evidence he established the alteration very satisfactorily, and was entitled to the benefit of the proof. ^ Why the alteration was made so as to give a false date to'Ms location and to show tlie title out of the United States and into Mm, years before be purchased the land or thought of doing so, and while it still remained the property of the UMted States, it is immaterial now to inquire. It may be surmised, however, that it was for mere convenience in transacting the business in the general land office, and to avoid the delay and expense of a new application and certificate, and at the .same time to have the records and files in the office conform to the location actually made. But whatever the motive may have been, the title of. the United States did not pass, and the plaintiff acquired no interest in the land until December, 1865, and, instead of instructing the jury to find for the defendant, the court below should have instructed them to find for the plaintiff. The land not having been taxable at the time of the alleged levy and assessment under which the defendant obtained his tax deed, he acquired no title and cannot hold as against the plaintiff.

By the Court. — Judgment reversed, and a venire de novo awarded.  