58 Wis. 237 | Wis. | 1883
On the former appeal — 53 Wis., 403 — it was said the answer of the defendant showed strong equities to the land in controversy. The force of that remark was certainly not weakened by anything disclosed in the proofs on the second trial. The facts in the answer were fully established by the evidence, and it would seem almost a reproach upon the administration of justice if such a' meritorious' defense should fail. It is not claimed that the entry of this forty by Davidson, in January, 1856, was in conflict with any Istate land-grant or prior sale. The land was then subject to •entry; it was purchased by him and paid for. There was no fraud or mistake in the transaction; the receiver took the price of the land and gave his receipt therefor. These are facts which cannot be successfully controverted. All the rights and interests which Davidson acquired by this entry became vested in the defendant’s testator, who had been in continuous possession of the premises some years before he died, and had made improvements thereon. It is true, there was included in Davidson’s purchase, and in the receiver’s receipt, another tract of eighty acres which the United States did not •own, but which belonged to the state under the swamp-land grant. But as respects this forty the United States owned it .and sold it for cash - — parted with all its interests in it, except the mere naked legal title, which it held in trust for the purchaser or his assigns. We may well adopt, as regards this forty the language of Mr. Justice McLeaN in Carroll v. Safford, 3 How., 440, 460, and say: “When the land was purchased ,-and paid for it was no longer the property of the United States, but of the purchaser. He held it for a final certificate, which could no more be canceled by the United States than a patent. It is true, if the land had been previously •sold by the United States, or reserved from sale, the certificate or patent might be recalled by the United States, as having been issued through mistake. In this respect there is mo difference between the certificate holder and the patentee.”
The counsel for the plaintiff further insists that the defendant could not in this action have the benefit of the equitable defense set up in the counterclaim. We fail to
After the trial of the equitable issue, the plaintiff, by his counsel, demanded a trial by the jury of the legal issue. To this demand the court replied that it did not consider there was anything for a jury to try, and denied it. The plaintiff did not claim or pretend that he had any title to the prem
It follows from these views that the judgment of the circuit court must be affirmed.
By the Court.— Judgment affirmed.