105 Wis. 245 | Wis. | 1900
In so far as the plaintiffs’ title depends upon the certificate of location, and the record and proceedings in the parish court of Louisiana in the matter of the succession of James Goyne, it differs in no material respect from that had under consideration in the case of Simmons v. Saul, 138 U. S. 439. That case, however, was a direct proceeding by the legal descendants of the holder of the inchoate land ■claim, against the holder of the title to land entered upon a :sale of the scrip under succession proceedings, to set aside
Here the plaintiffs offered proof of a patent from the United States to “James Goyne or his legal representatives;” also,
The patent in this case runs to “ James Groyne or his representatives,” and the trial court held that it was not shown by the transcript of the proceedings in the parish court of
The plaintiffs having shown, both by the certificate of the surveyor general and the proceedings of the parish court, that Dugan was the “ legal representative ” of Goyne, their title to the land was absolute, for the purpose of this case, unless the defendant had -a superior title under the receiver’s receipt offered in evidence. When it was offered it was objected to because it appeared upon its face to have been altered, an “N” having apparently been changed toa “W.” After some parleying bet when counsel and the court, it was admitted in so far as it bore on the question of defendant’s good faith in acquiring title and cutting the timber, but the court reserved a ruling as to its bearing on the question of title. Without making any further ruling in that respect, the court submitted to the jury, against plaintiffs’ objection, a question whether the receipt was in the same condition with respect to alteration as when it was delivered to •the parties named therein by the receiver of the land office. The plaintiffs requested the court to instruct the jury to answer the question, “No,” which was denied. The jury answered the question in the affirmative. By stipulation of
Moreover, the court, under the circumstances, ought to-have granted a new trial. The fact is undisputed that plaintiffs’ counsel was given to understand that the actual title to this land in plaintiffs would be conceded on the trial. The defendant made a tender of judgment for the cutting' done on this forty. Under date of January 3,1896, the plaintiffs wrote the defendant as follows: “We understand from Mr. Y. W. James that you have given up the contest on the title to- the land, viz. the S. W. \ of the N. E. J, Sec. 15,, T. 42,1 E., about which we have been, so long writing you.”' To this the defendant answered: “Eeplying to your favor of the 3rd inst., will say we have a warranty deed of the land in question, though, as explained to us by Mr. James,, we expect your title will hold good, and there is nothing for us to do but settle- amicably with you, which we wish to do, and then take- claims on our-grantors for reimbursement.” This, in connection with personal assurances from the officers of defendant that they had1 abandoned their claim to title, and the rather- indefinite way in> which their-claim of title- is- set up> in the answer; evidently threw the-plaintiffs’ counsel off his guard. Add to this the tender of judgment, and the failure of the court to make a timely ruling on the reception of the- receipt in. evidence without limr
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.