49 Iowa 507 | Iowa | 1878
I. The petition shows that the lands in controversy are situated in Adams county, and are a part of the swamp lands granted to the county under familiar legislation of congress and of the State, prior to the inception of the plaintiff’s title. The plaintiff’s title and right to the lands are, in his petition, based upon the following alleged facts:
In 1862 the county entered into a contract with the American Emigrant Company for the sale of the lands, and subsequently conveyed the property to this company. This contract provided that the rights of persons holding pre-emptions upon lands should be protected, and that the company should convey to persons holding pre-emptions the land claimed by them. Plaintiff made valuable improvements upon the lands, and occupied them since the pre-emption certificate was assigned to him, and the county has recognized his right and title by the assessment and collection of taxes thereon.
On the 11th of March, 1869, the Emigrant Company conveyed the lands to plaintiff upon his pre-emption claim, and the payment of the sum of one dollar and twenty-five cents per acre, the price at which the land was to be sold by the county to pre-emptioners. The petition alleges that plaintiff has been always ready to pay the purchase price of the lands, and that if the court holds that his payment to the Emigrant Company does not discharge the claim of the county for the price of the lands, he is ready and willing to pay the same to the county. He alleges that he acquired and now holds the lands in good faith. He charges that the county is about to dispose of the lands, and asks that it be enjoined from so doing, and that the title be quieted, and the defendant be required to convey the lands to him.
The answer of defendant denies the validity of the sale of the lands by the county to the American Emigrant Company. It also denies the validity of the pre-emption of the lands by Hanna, and the good faith of plaintiff in the assignment of the pre-emption certificate to him. It charges that the lands were assessed to' plaintiff through his procurement, and avers
The plaintiff supports his right and title to the lands upon two groxinds: First, the pre-emption by Hanna. He claims that under this pre-emption he is entitled to a deed for the lands, if the title has not been vested in him by virtue of the contract of sale to the Emigrant Company, and the deed by the company to himself. Second, the contract and deed made by the county to the Emigrant Company. We are required to examine separately these sources of right and title to the lands involved in the action. The facts pertaining to each will be stated in our separate discussion of the two grounds upon which plaintiff seeks relief.
In the case before us, Hanna, in 1857, broke three or four acres of the one hundred and twenty involved in this case, and raised a crop of sod-corn that year. He did not live upon the land, and it was not part of a farm owned by him. No fences were made upon the land, nor was it improved in any way. It was never cultivated, for sod-corn requires no cultivation. No attempt of any kind was made to raise another crop upon the land, and it was permitted to become again wild. More than ten years after this breaking Hanna assigned his preemption certificate to plaintiff. It is very plain that the improvement made by Hanna was not such as the law required to support a pre-emption. He, therefore, had no bona fide claim by actual settlement, and his certificate was procured through fraud, for the county judge issued that paper upon a false claim and false testimony that there was permanent, actual improvement made by Hanna upon the land. Wilson v. McLernan, 20 Iowa, 30; Rogers v. Vass, 6 Iowa, 405; Colvin v. McCasky, 9 Iowa, 585; Givens v. Decatur Co., 9 Iowa, 278.
The statute authorizing the county judge to issue preemption certificates did not provide for a review of his action in granting a pre-emption certificate upon appeal or writ of error, to be prosecuted by the county wherein fraud could have been shown in order to set aside his judgment or decision. It'may, therefore, be shown in any collateral proceeding wherein the validity of a pre-emption is brought in question. While it has been held that an appeal may be prosecuted by a person to whom the county judge denies a certificate of preemption (Givens v. Decatur County, 9 Iowa, 278), it has not been decided that the county may appeal from the action of the Circuit Judge in granting a certificate.
IY. We now approach the examination of plaintiff’s title to the land under the deed from the American Emigrant Company.
“And the said party of the first part doth further covenant and agree that all the lands within the said county that may be at any time duly selected as swamp and overflowed lands, and all such lands as may not be included in this conveyance, if any, the party of the first part will at any time convey, by-deed similar to this conveyance, on request of the American Emigrant Company.”
March 11, 1869, the company conveyed the lands by deed to plaintiff. It is shown that this conveyance was based upon plaintiff’s pre-emption claim, the company undertaking in its. contract of purchase to convey all lands upon which such claims rested to the holders thereof.
It will be observed that the title to the lands in controversy is held by the county, no deed therefor having been executed under the contract. The plaintiff acquired no title by the deed of the company to him. That deed operated to transfer to the plaintiff the equity held by the company in the lands, and nothing more. This equity rested upon the contract with the county for the purchase of the lands.
As we have before stated plaintiff claimed a conveyance of the land on this ground: that he held a pre-emption, and under his supposed right based thereon the deed by the company was executed to him. As we have seen his pre-emption was void for fraud. Now, if we concede that the deed of the company was sufficient. to convey an equity, plaintiff cannot enforce it for the reason it was acquired by him through the pre-emption, which, being fraudulent, secured to him no right. If this pre-emption gave him no right to the lands as against the company, the deed of the company made to perfect plaintiff ’s claim, based upon the pre-emption, and to confer upon
The conflicting right of the county and the company to the lands will be finally settled in the cause now depending on appeal in the United States Supreme Court. If the county prevail plaintiff’s claim to the lands is cut off. We are not required to determine his rights in ease the Emigrant Company be successful.
VI. The question arising upon the statute of limitations, and other questions discussed by counsel, need not be considered.
Beversed.