Cornelius v. Kessel

53 Wis. 395 | Wis. | 1881

Cole, C. J.

In this case the United States is the common source of title oh both sides. The plaintiff claims title under the Puffer entry, which was made December 6, 1876, and also under the patent which was subsequently issued to Puffer, dated June 4, 1877. The defendant claims under the Davidson entry, which was made January 2'9,1856. This was a cash entry of two tracts of land. By way of counterclaim it is alleged in the answer that there has been a continuous and uninterrupted assertion of title by the defendant, and by those under whom she claims, through this original Davidson entry, and a continuous and iminterrupted possession of the tract in dispute since such entry, under which valuable improvements have been made. The answer then further states that the cash entry of Davidson on the 24th day of October, 1857, by an order of the general land office, improperly and erroneously made, was cancelled for the alleged reason or cause only that the entry was improper as -to one tract, which was included in a prior grant to the state of Wisconsin, and was not subject to entry, while no question was made as to the tract in controversy. It further alleges that this order of cancellation was made without previous notice of any kind to Davidson, or to any party in interest under such entry; that no notice or information of the order was ever given or came to the knowledge of any party in interest prior to the time the patent was recorded, July 21, 1877; and that the purchase money paid by Davidson has never been repaid, or offered to be returned. The answer then states the facts about the Puffer entry; alleges that, upon notice of these facts and of the rights and equities of the defendant, the commissioner of the general land office, by an order, cancelled the Puffer entry and the patent issued thereon, and reinstated the Davidson entry in full force.

On the trial, the plaintiff introduced in evidence the patent to Puffer, a certificate of the register of the United States land office at Menasha of Puffer’s entry, and mesne conveyances to him, and rested. Thereupon the defendant went into her case, and gave in evidence, among other things, against the plaintiff’s objection, the record of the receiver’s receipt of the entry of the two tracts by Davidson, January <29, 1856; also Exhibit K, which was the register’s certificate in due form, to the effect that Puffer entered the tract in dispute on the 5th of December, 1876, and that the same was patented to him June 4,1877. The same certificate stated that the Davidson entry of this tract, made on the 29th of January, 1856, was-cancelled on the records of the office by the commissioner of the general land office on the 24th of October, 1857, for the-reason that such entry was in conflict with the state land grant.. The defendant then gave in evidence Exhibit L, which is a certificate of the register of the Menasha land office, dated October 20, 1879, stating in substance, that the cash entry of Davidson “ has been reinstated upon our records, upon that part of said entry in section 13, in accordance with instructions contained in the accompanying copy of letter from the department of the interior, dated June 3, 1879.” This certificate was objected to by the plaintiff as immaterial and not the best evidence, and because it shows an act of the land department subsequent' to the patent to Puffer. The objection was overruled, and the certificate was admitted in evidence, and is relied upon to establish the fact that the Davidson entry had been reinstated. It is very clear that it was insufficient to prove that fact. Certainly the best evidence of the fact of the reinstatement of that entry is an authenticated copy of the original order reinstating it, which was made by the commissioner of the land office. McLane v. Bovee, 35 Wis., 27; Ansley v. Peterson, 30 Wis., 653.

It may be, if a copy of that order has been filed or deposited in the Menasha land office, it would become a record which might be certified to under section 4151, R. S. Upon that point, however, we express no opinion. It is sufficient to say that the certificate does not purport to be a certificate by the officer to a true copy or a transcript of any order on file with him or in his custody reinstating the Davidson entry. The officer merely certifies that the cash entry of Davidson has been reinstated upon the records of his office, in accordance with the instructions contained in the accompanying copy of a letter from the department of the interior. Not even a certified copy of that letter is given. The original letter, even, would not be admissible in evidence unless authenticated in a proper manner. Bovee v. McLane, 24 Wis., 225. From the statement already made it will be seen that the defendant had alleged and proven that the Davidson entry had been cancelled. True, she avers it was erroneously and improperly cancelled as to this tract. But, having shown that it was cancelled, and relying upon the action of the commissioner of the general land office reinstating it, manifestly it was incumbent upon her to establish the fact that it had been reinstated, by competent testimony. The certificate which was offered in evidence for that purpose did not prove that the entry had been reinstated, and should have been excluded from the consideration of the jury.

It is insisted by the learned counsel for the plaintiff, that even if it were established by satisfactory and competent proof that the Davidson entry was reinstated as claimed, still, if this was done subsequent to the issuing of the patent, the action of the commissioner in the matter would be null and void; for he says, when the patent was issued and delivered to Puffer, or one claiming under him, then all right to control the title or to decide on the rights of conflicting claimants of the land passed from the jurisdiction of the general land office. Whether that position is sound or not we shall not attempt to decide until proper proof is made of the reinstatement of the entry.'

The answer of the defendant certainly shows strong equities to the land. She claims under a cash entry made in 1856, under which possession was taken and improvements made. The plaintiff claims under a homestead entry made in 1876, when, as we were informed on the argument, no money was paid. The first entry was set aside because it was in conflict with a prior state land grant; still the United States retains the purchase money, and subsequently conveys the land to another party. How, under these circumstances, the law may be as contended for by defendant’s counsel, namely, “ that when lands have once been sold by the United States, and the purchase money paid, the lands sold are segregated from the public domain and are no longer subject to entry. A subsequent sale and grant of the same lands to another person w'ould be absolutely null and void.” This is the language of the distinguished chief justice in Simmons v. Wagner, 101 U. S., 260. Whether it is applicable to a case like the one at bar, so as to justify a court in saying that the defendant’s equities should prevail over the title conveyed by the patent, are questions which we shall not attempt to decide now. The judgment must be reversed on account of the error in admitting the certificate above referred to.

By the Court.— The judgment of the circuit court is reversed, and a new trial ordered.