55 Iowa 157 | Iowa | 1880
— The plaintiff, in its petition, claims to be the vwner in fee simple of the lands in dispute under the swamp land grant of September 28, 1850; that each parcel thereof was of tbe description specified by said Act of Congress, and was duly listed and selected as such; tbat tbe secretary of the interior refused to take up, examine and allow the list, and such refusal was wholly by reason of defendant’s resistance; that tlie commissioner decided to allow said lists, but tlie secretary of tlie interior, on appeal, reversed said decision
The defendant, in the first division of its answer, admits the issuance of the patents, and that it claims said lands, and denies all the other allegations of the petitition.
In the second division of its answer the defendant sets out the acts of Congress and of the legislature of Iowa, conferring lands upon the defendant, and the acts and proceedings thereunder, and the issue of the patents to the defendant in pursuance thereof, and that the county had for several years levied and collected taxes on said lands of defendant, and is thereby estopj>ed from claiming the same.
The plaintiff demurred to the second division of the defendant’s answer, and the demurrer was, in the court below, sustained'. From the order sustaining the demurrer-the defendant appealed to this court, in which the judgment of the court below was affirmed, solely upon the ground that the facts alleged in the seventh paragraph of the answer, to-wit., the levy and collection of taxes, did not estop the county from claiming title to the lands. See 46 Iowa, 226.
At the June term, 1877, of the District Court, no one appearing for the defendant, judgment was rendered in favor of plaintiff for all the land claimed and for about $20,000 in money.
On the 17th day of July, 1877, the defendant filed a petition for a new trial, accompanied with exhibits and affidavits. The plaintiff demurred to this petition, and the court sustained the demurrer, with leave to the defendant to amend the petition. Thereupon the defendant filed an amended petition
Afterward, on the same day, the defendant brought into open court the sums ordered to be paid as aforesaid, and the clerk paid to Galusha Parsons, the attorney of plaintiff, the said sum of $250, and took his receipt therefor. The defendant thereupon filed an additional and supplemental answer, alleging the levy and collection of taxes upon said lands by plaintiff, and the payment thereof by the defendant; that the lands were patented to defendant and claimed by it under the several acts of Congress and of the legislature, and asking that if any of said lands are adjudged to plaintiff, that the taxes paid on them be refunded, with interest. The cause was tried to the court, and a decree was entered quieting in the plaintiff the title to a part of the lands, and awarding to the defendant the taxes paid thereon, with interest at six per cent.
1. Upon the former appeal it was'held that the proceeding instituted by plaintiff is within the contemplation of the last four sections of chapter 2, title 20, of the Code, and that the defendant’s application for a new trial falls under the provisions of section 3268 of the Code. This section authorizes the court, in its discretion, upon the application of a party made .at any time within a year from the former trial, to grant a new trial, although the grounds required for a new trial in other cases be not shown. The section does not seem to contemplate any notice to or defense by the other party, for section 3269 provides that if the application for a new trial is made after the close of the term at which the judgment was rendered, the q>»rty obtaining a new trial shall give the opposite party ten day’s notice thereof before the term at which the action stands for trial, a proceeding altogether unnecessary and unmeaning if the party is allowed to take issue upon and defend against the application.
2. The amount of money which the defendant was required to pay as a condition of being allowed a new trial was paid over to the plaintiff’s attorney, and by him receipted for. The plaintiff cannot accept the benefits of the judgment, so far as favorable to it, and at the same time prosecute an appeal from the judgment. Ind. Dist. of Altoona v. The District Township of Delaware, 44 Iowa, 201.
The plaintiff claims the lands in controversy under an act of Congress approved September 28th, 1850, to enable the State of Arkansas and other States to reclaim the swamplands within their limits, and an act of the general assembly of the State of Iowa, passed January 13th, 1853; Revision, sectio3i 925, granting to the counties respectively in which they may lie, all the swa3np-la3ids granted to the State of Iowa by the acts of Congress, approved September 28th, 1850. The act of Congress of September 28th, 1850, grants to the States in which they 3nay be situated the whole of those swamp a3id overflowed lands made unfit thereby for cultivation which shall remain unsold at the passage of the act. It requires the secretary of the interior to make oiit an accurate list and plats of the lands described, and, at the request of the govei’nor of the State, to cause a patent to be issued to the State therefor, which shall vest the fee-simple in the State, subject to the disposal of the legislatui’e thereof. It provides that in making out said lists and plats all legal sub-divisions, the greater part of which is wet and unfit for cultivation, shall be included, but that when the greater part of a sub
The commisssioner of the general land office, on the 21st day of November, 1850, directed the making out of the list prescribed and furnished instructions to the surveyor-general at Dubuque as follows: “ You will please make out a list of all the lands thus granted to the State, designating those which have been sold dr otherwise disposed of since the passage of the law, and the pi'ice paid for them when purchased. The only reliable data in your possession from -which these lists can be made out are the notes of the surveys on file in your office, and if the authorities of the State are willing to adopt these as the basis of those lists, you will so regard them. If not, and those' authorities furnish you satisfactory evidence that any lands are of the character embraced by the grant, yoix will so report them.”
The State of Iowa was not willing to accept the notes of the surveys on file in the surveyoi’-general’s office, and on January 13th, 1853, passed an act authorizing the county courts of the respective counties to appoint some suitable person to examine the lands and make due report and plats, xxpon which the topography of the country should be carefully noted, to said courts, which were required to transmit to the proper officers lists of all of said swamp lands in order to procure a proper recognition of the same on the part of the United States. Revision, § 927.
On the 8th day of November, 1853, the surveyor-general directed a eoramunication to the secretary of State of Iowa, urgently requesting his aetivq cooperation in closing up the swamp land business,- and accompanying it with a form of proof to be employed by the agent of the county and returned to that office for approval.
On the 25th of January, 1855, the general assembly of the ■State of Iowa passsed an act authorizing the governor to adopt such measures as to him might seem expedient to provide for the selection of the swamp lands of the State, and to
The petition alleges that each and every parcel of the lands in controversy was, at the date of the passage of' said act, of the description specified therein; that in 1859 the plaintiff caused a list of said lands to be made in accordance with the act of Congress and the rules and regulations of the general land office of the United States, but-has not been able to have the sufficiency thereof examined, passed upon and approved. Under the issue presented it. is clearly incumbent upon the plaintiff, in order to the recovery of any forty acre tract in controversy, to prove that the greater part of it was, on the 28th day of September, 1850, wet and unfit for cultivation. To prove the swampy character of the lands in question, the plaintiff introduced a list of the swamp and overflowed lands situated in the county of Buena Yista, embracing the lands in controversy, and recorded in the office of the register of the State land office of Iowa. This list is verified by the affidavits of G. S. Eingland, "W. H. Ilait, and Zach. Tucker, who assert in their affidavits that they were appointed by the county judge of Buena Yista county to select the swamp and overflowed lands in said county; that they understand and have examined the lines bounding each of the tracts designated in the list, and that the greater'part of each and every forty acre tract or smallest legal subdivision is swamp and overflowed land, and of the character embraced in the act of Congress, approved September 28th, 1850. Attached to this list is the affidavit of J. ~W. Tucker, as follows: “I, J. W. Tucker, late county judge of Buena Yista county, in the State of Iowa, do solemnly swear that George S. Eingland, Zachariah Tucker, and W. H. Hait, were duly appointed by me, while county judge of said county of Buena Yista, as agents to select the swamp and overflowed lands in Buena Yista
This testimony was admitted against the objection of the defendant as to its competency,, and it is now insisted that it is both incompetent and insufficient to establish the swampy character of the lands in question.
We think the evidence incompetent upon several grounds. Section 927 of the Revision requires that the agent shall be appointed by the County Court at a regular term thereof. The proper evidence of the appointment is the production of the record of the County Court. If no record was made, or it has been lost, the written appointment of the agent should be produced. If that is not attainable, and parol evidence of the fact of appointment is proper, the evidence should be the testimony of witnesses, subject to cross-examination, and not the mere ex parte affidavit of the person making the appointment.
This section does not provide that the lists so made shall be evidence of any fact. They are authorized to be made merely for the purpose of procuring the proper recognition of the saíne on the part of the United States, and are in the nature of a claim or demand. The lists are required to be transmitted by the County Court to the proper officers for approval. The regulations and instructions of the Department show that this person is the surveyor-general. There is no proof that the list in question was ever transmitted to the surveyor-general, or that he ever had any opportunity of passing upon it. It is not shown that this list ever came into the possession of the commissioner of the general land
The evidence falls very far short of what was held sufficient prima faoie evidence of the swampy character of the lands in Page County v. B. & M. R. R. Co., 40 Iowa, 522. In that case the lists, prepared under the authority of the county, were transmitted to the surveyor-general, and by him forwarded to the general land office. It was regarded by the proper department of the general government as the list and selection of lands for Page county, and the lands described therein were withdrawn from sale at the proper United States land offices.
The case of Clarkson v. Buchanan, 53 Mo., 563, cited and relied upon by the plaintiff, is not in point. A statute of the State of Missouri, page 868, section 9, provides that lists and plats of the swamp lands received from the government of the United States, shall, by the governor, be caused to be filed in the office of the register of lands, and shall be received by all courts of the state as prima faoie evidence of title. A certified coj>y of the list of swamp lands on file in the office of the register was offered in evidence, and. it was
'Besides, in Clarkson v. Buchanan, the lists were not offered or accepted to prove that the 'lands were wet and subject to overflow. That fact was proved by independent testimony produced at the trial. None of the authorities cited by the plaintiff, as we understand them, sustain the sufficiency of the lists in question to establish the swampy character of the land.
As the plaintiff failed to' prove, by competent and sufficient testimony, that any of the lands in question are swamp and fall within the terms of the grant of September 28,1850, the petition should have been dismissed.
On plaintiff’s appeal affirmed.
On defendant’s appeal the decree is
Be VERSED.