Colvin v. McCasky

9 Iowa 585 | Iowa | 1859

Woodwabd, J.

The larger and more essential part of the demurrer objects that the bill does not state the existence of those facts which were requisite to constitute a valid pre-emption right; such as that the petitioner proved up his claim within the sixty days; that there was no other claim on the land at the time he proved; and that the bill does not show but that there was a contest before the county judge at the time, &e. It is not necessary for the complainant to allege in his bill facts which were requisite in order to constitute or to prove his right. These were to be shown to the county judge, and he was to adjudicate upon them; but for the petitioner’s present purpose, it was sufficient for him to aver, that a pre-emption right had been adjudged to him and that he had received a certificate thereof.

Two certificates had been issued for the. same piece of land, and this bill, filed by the holder of the first, is designed to try the validity of the second. In other words, and in effect, it is to try the question between the two, which is the valid one. Eor this purpose the complainant in the outset stands upon his certificate, the presumption being that it was properly issued, and leaves it to his opponent to show its defect, he, the plaintiff, making his attack upon the second certificate.

For a like reason he need not state that there was no other claimant, or no contest before the judge. If these things had existed they must have been adjudicated when the right was awarded to him, and he is not required to go behind such judgment..

The petition does not, as is averred in the demurrer, show that there was an existing contest for the right. One certificate having been issued such contest could not be tried by the county judge, as was determined in Rodgers v. Vass, 6 Iowa 406. The contest refered to in statute 1855, ch. 156, section 10, page 230, is one on the original applications, and not after a certificate has issued, for this implies a case de- ' termined.

It is true that the bill does not set forth facts showing fraud in the attainment of the defendant’s certificate, but the petition does not profess to place the plaintiff’s prayer upon that ground. It charges that the respondent wrongfully, and with intent to injure the petitioner, and to deprive him of his land, proved up a claim and obtained a certificate; and this may have been done without fraud, as it may have been through mistake or by proceedings which were erroneous. In the present instance there must have been fraud, mistake or error, in order that two certificates should be issued to two persons for the same tract of land; and if fraud is not charged the other two remain and are sufficient.

Regarding the demurrer under a somewhat wider construction, we think the single position, that the second claim was .proved up and allowed after the petitioner’s certificate had issued, is sufficient, for in such case the first certificate is the better in law and will prevail, until some defect be shown in it, whatever may be tbe other defects in relation to the second. And therefore, also, we think the bill avers enough to sustain it.

The demurrer was correctly overruled, and the defendant adhered to it, and a decree was rendered in accordance with the prayer of the petition.

The judgment of the District Court is affirmed.