Cady v. Eighmey

54 Iowa 615 | Iowa | 1880

Seevees, J.

The legal propositions involved in both appeals are the same. There is no dispute as to the facts, and they may be briefly stated. The cross-petitioners are the heirs at law of William McDaniel, and Jane McDaniel was the latter’s widow, and entitled to dower in the real estate of which lie died seized.

William McDaniel, in 1845, was in possession of the premises in controversy, and the right of preemption thereto, under an act of Congress entitled “An act for laying off the towns of Fort Madison, Dubuque,” etc., approved July 3d, 1836,' and other acts amendatory thereto.

On Nov. 29, 1845, said McDaniel purchased from the United States and paid for the premises in controversy, and there was issued to him the following certificate of purchase:

“No. 811. Land-oeeice, Dubuque, Iowa, )

“Nov. 29, 1845. j

“It is hereby certified that in pursuance of the provisions-of the act of 2d' of Jrdy, 1836, entitled ‘An act for laying, off the towns of Fort Madison,’ etc., and also of the act amendatory of the same, approved 3d March, 1837, Wm. McDaniel, Dubuque county, Iowa, has this day purchased of the register of this office south half of out-lot number six hundred and sixty-seven of the third class in town of Dubuque, containing, one and twenty-four and one-half one hundredths acres, at the rate of ten dollars per acre, amounting-to twelve dollars and'forty-five -cents, for which the said Wm, McDaniel has made payment in full as required by law.

“Wow, therefore, be it biown, that on presentation of this certificate to the commissioner of the general land office the said Wm. McDaniel shall be entitled to receive a patent for out-lot above described.

“ Warner Lewis, IHegister”

McDaniel died in 1875, and on the 13th day of December, 1876, there was issued to him a patent for the said real estate. It was in the usual form, and recited that said McDaniel had deposited in- the general land office a certificate of the register of the land office at Dubuque, Iowa, whereby it appeared frill payment has been made for said real estate by said McDaniel, according to the provisions of the act of Congress of July 2d, 1836, etc.

The defendants claim that William McDaniel and his wife Jane in 1848 conveyed by quitclaim deed all their right, title, and interest, in and to the premises to one Carpenter, under whom they claim.

The foregoing, in our view of the law, constitutes the material facts and claims made by the respective parties.

„ 1. PUBLIC emptionP-re~ purchase. I. It is entirely clear to our minds the certificate of purchase issued to William McDaniel, upon his making payment for the premises in accordance with the acts of e Congress, vested in him an equitable title, which pe coxli(j sep and convey. The United States thereafter held the naked legal title in trust for said McDaniel or his grantees, and would at any time, upon the presentation, of said certificate, have issued a patent to said McDaniel.

Upon receiving the certificate of purchase McDaniel ceased to be a mere preemptor, and became a purchaser and holder of a title to the real estate, and was entitled to all the rights that legally follow.

The United States does not claim title, and by issuing the patent has divested itself of the naked legal title, and thereby recognized the title of McDaniel, which had long previously inured to him under the certificate of purchase. Conceding it to be true, as claimed, that the piatent is void as a conveyance of the title because it was not issued until after the death of McDaniel, then the legal title is in the United States; and if it be true he and. his wife conveyed all their right and interest in and to the premises to Carpenter, the pfiaintiff and cross-pietiti oners have no right to recover, because they have neither the legal nor equitable title.

It is urged, however, that an act of Congress approved March 3, 1843, 5 U. S. Statutes at Large, 620, provides that when anyone entitled to .the benefit of the preemption laws shall have died before consummating his claim by filing in due time all papers essential to the establishment of his claim, it shall be conrpetent for the executor or administrator of the estate of such p>arty, or one of liis heirs, to compílete the same, provided the entry in such case shall be made in favor of the heirs of the deceased preemptor, and the piatent thereon shall cause the title to enure to said heirs as if their names had been spiecially mentioned. This statute has no apiplication to this case, because the preemption right of McDaniel was compílete when the certificate of purchase was issued and he became a pjurchaser. It is immaterial by whom the certificate was presented, or at whose instance the piatent issued. The issuance of a piatent is a ministerial act. The certificate cannot be canceled or set aside any more than could a piatent. The certificate title should and must be recognized and protected. Sillyman v. King, 36 Iowa, 207; Waters v. Bush, 42 Id., 255; Stoddard v. Chambers, 2 How., 284; Carroll v. Stafford, 8 Id., 441-461.

2. conveyüte: cieéd. ' II. The conveyance to Carpenter was executed and acknowledged in the Territory of Wisconsin in 1848, in strict accordance with the laws tliei’eof. The Revised Statutes of the Territory of Iowa-of 1843 were then in force, and chapiter 54, § 40 thereof provides that all conveyances of lands situate in the then Territory of Iowa executed in another state or territory may be proved, acknowledged and certified in accordance with the laws and usages of said state or territory, and when so done the same shall be as effectual and valid as though the same had been acknowledged within the Territory of Iowa. The conveyance under the forego i-ng statute was clearly sufficient to vest the title of McDaniel and wife in Carpenter. Heaton v. Fryberger, 38 Iowa, 185, is not applicable, because the conveyance was executed, in the Territory, of Iowa and was not executed and acknowledged in accordance with the statutes thereof. In the case at bar this was done, for- the statute provided the conveyance might be executed and acknowledged in accordance with the laws of Wisconsin, and when so' done it was done in accord with the statutes of the Territory of Iowa.

lands’: disposal oi : com-the\tEaeVaiui united states, III. Carpenter took possession of the premises in controversy soon after the conveyance to him, and ■ those holding under him have ever since that time had open, notorious and adverse possession thereof. Yalu-J a^e buildings have been erected thereon. The defendants pleaded the statute of limitations, and we think it must prevail, and, therefore, the plaintiff and cross-petitioners cannot recover. It is urged the statute is not well pleaded, because of the irrepealable ordinance entered into between the United States and State of Iowa, whereby the latter agreed neither to pass nor enforce any law which would prevent the primary disposition of the public lands within the State. This compact has no application. The United States sold the land in question to McDaniel, and held no enforceable right thereto. Several points made and authorities cited in their support have not been noticed, for the reason they are based on the proposition that McDaniel had a preemption right only.

Affirmed.

Adams, On. J., took no part in this case.