47 Neb. 934 | Neb. | 1896
The defendants in error instituted this, an action of ejectment, in the district court of Douglas county against the plaintiff in error. The petition filed was as follows: “And now come said plaintiffs and for cause of action against said defendant say: That said plaintiffs, as tenants in-common with said defendant, have a legal estate in, are the owners in fee, and entitled to the immediate possession of the undivided interests hereinafter appearing of the following described real property, to-wit: The block or tract of ground known as the Stone Quarry Reserve, in the city of
The defendants in error introduced in evidence a patent conveying from the United States to “The trustees of the city of ■ Grandview, and as the proper corporate authority thereof, in trust for the several use and benefit of the occupants thereof according to their respective interests under said act of 23d May, 1844, and to their successors and assigns in trust as aforesaid,” certain lands which included the tract in controversy in this case; also deeds signed by “A. B. Moore, chairman,” and each containing a recital that it was the act of the trustees of the city of Grand-view, by which there was purported to be conveyed certain undivided interests in the title to the Stone Quarry Reserve, together with other property, to parties who, according to the recitals of the deeds, had respectively become entitled to the conveyances; also conveyances from these last mentioned persons to others, and transfers were shown until the defendants in error had been reached, and the title to their respective interests vested in them. The several conveyances were objected to at the tiixie they were offered in evidence. The trial judge instructed the jury in respect to the patent and deeds and what they established, as follows: “The plaintiffs have in
In order to a proper understanding of the claims of plaintiff in error that the patent from the United States to the city of Grandview and the deed made by A. B. Moore, as “chairman,” did not convey any title or were not evidence of such transfers, we deem it proper to set forth here portions at least of the act of congress to which allusion was made in the patent, and of the acts of the territorial legislature which were passed to carry into effect the law enacted by congress. The act of congress reads as follows: “Whenever any portion of the surveyed public lands has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under the existing pre-emption laws, it shall be lawful in case such town shall be incorporated, for the corporate authorities thereof, and if not incorporated, for the judges of the county court for the county in which such town may be situate, to enter at the proper land office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust as to the disposal of the lots in such town
“Section 1. That whenever any portion of the surveyed public lands has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under the existing preemption laws, it shall be lawful and be the duty, whenever required by the occupants and owners by deed of the lots within the limits of such town, for the corporate authorities of the town, if incorporated, and if not incorporated, then for the commissioners for the county in which such town may be situated * * * to enter at the proper land office the land so settled and occupied as a town site, in trust for the several use and benefit of the occupants and those holding by deed or otherwise, according to the laws of this territory.
“Sec. 2. After the purchase of such land as above described it shall be the duty of the mayor of the town, if incorporated, or if the town is not incorporated, then of the commissioners of the*941 county in which the town is situate, to make out, execute, and deliver to each person who may be legally entitled to the same a deed in fee simple for such part or parts, lot or lots of such lands as each person may be entitled to.”
Section 3 makes provision for hearing and determining disputes between contesting claimants. Sections 4 and 5 we need not notice here. Section 6 provided for an appeal to the proper district court from a decision of a mayor or the commissioners. In 1858 an act was passed on this same subject which repealed the act of 1857. (See Laws of Nebraska, 1858, p. 266.) In sections 4 and 5 of the law of 1858 it was provided:
“Sec. 4. After the entry of the land settled upon and occupied as a town site, as hereinbefore prescribed, the corporate authorities or the county judge, as the case may be, having entered the land, shall cause public notice to be given of the fact of such entry by posting written or printed notice in at least three public places in the town, and no deeds for the land nor any part thereof shall be executed and delivered within the period of thirty days after the first day of the publication of such notice.
“Sec. 5. After the lapse of thirty days from the first day of the publication of such notice, the mayor of the town, or if there is no mayor, the chairman of the board of trustees, if such town is incorporated, and if the town is not incorporated, then the county judge of the county wherein the town is situated, shall on demand execute and deliver to each person who may be legally entitled to the same a deed in fee simple for the part or parts, lot or lots of such land as the person demanding may be lawfully entitled to.”
It is settled doctrine, well supported by both authority and reason, that from the existence of the patent evidencing the grant the presumption arises that all the acts have been performed and all the necessary facts have been shown to exist by the party to whom it was made, which were prerequisites to its existence, and that the proper officers have examined and adjudicated the question of the right of the applicant, and the patent, the evidence of such determination, is unassailable collaterally. The patent in this case ran to the trustees of the city of Grandview, and the deeds, purporting to convey title to the various claimants of lots and undivided interests in the “Stone Quarry Reserve,” were signed “A. B. Moore, chairman.” The recitals of these deeds, or such as we need notice, were as follows:
*944 “This indenture, made this fifth day of March, in the year of our Lord one thousand eight hundred and fifty-nine, witnesseth: That whereas the congress of the United States passed an act entitled ‘An act for the relief of citizens of towns upon the lands of the United States, under certain circumstances,’ approved May 23, A. D. 1844;
. “And whereas the legislative assembly of the territory of Nebraska, under and in pursuance of said act of the said congress, passed an act entitled ‘An act regulating the disposal of lands purchased in trust for town sites,’ approved February 10, A. D. 1857;
“And whereas the trustees of the city of Grand-view have paid for and received a title from the United States in trust for the occupants and owners of the lots and pieces of land in the city of Grandview and territory of Nebraska, which city it located upon — [Here follows a description of the land]:
“Now, therefore, by virtue of the power in said board of trustees vested by the two several acts as such trustees aforesaid, the said trustees of the city of Grandview, in consideration of the premises and of the sum of twenty-nine (being one-tenth of the costs of entry) dollars in hand paid, the receipt whereof is hereby acknowledged, do by these presents convey unto — [Here follows the name of the grantee and description of the property conveyed].
“In witness whereof I have hereunto set my hand this fifth day of March, A. D. 1859, by authority of the said board of trustees.
“Andrew B. Moore,
“Chairman.”
It is insisted that it should have been shoAvn that the city of Grandview had been incorporated and that the parties to whom transfers had been made Avere occupants of the premises or portions of the property conveyed to them, or, in other words, it was necessary that proof be made that the parties to whom the deeds were made were the proper ones; that all the acts to be performed had been done or the facts required to exist by the statute were existent at- the time of the execution of the deeds. These Avere matters to be investigated and determined by the person holding the trust and upon whom it deAmlved as a duty, on demand by the proper party, to make a deed,; — in this case the chairman of the board of trustees of the city, — and his settlement of the questions was not subject to collateral attack. As Avas said in the decision of the case of Taylor v. Winona & St. P. R. Co., 47 N. W. Rep. [Minn.], 453,
It is contended that it was necessary for the parties depending on the deeds from the trustees of the city as evidence of title, to show that A. B. Moore who signed the conveyance was chairman of the board of trustees, before they should have been received in evidence, or at least before instructing the jury that they were competent evidence and established one link in the chain of title. This was not one of the facts, the existence of which as a prerequisite to the execution of the transfer, he determined before making the conveyances. We have herein quoted portions of one of the deeds, and it was agreed that in such statement as we have copied they were all similar; and it will be remembered that it was not recited in the deed that A. B. Moore was chairman of the board of trustees, and he signed it “A. B. Moore, chairman,” with no statement indicating of what body or organization he was chairman, and no reference to the board of trustees of the city of Grandview, unless it should be said that the deed, being one which, according to its recitals, was made by such trustees, and he signing it as “chairman,” it must be presumed to be as such officer of the board stated in the deed. Had the recital of the capacity in which he executed the deeds appeared therein, or after his signature, it would have proved no more, as against plaintiff in error, than that he claimed to have executed them as such officer. It would not have been proof of the
On the facts or circumstances involved in the second, or affirmative defense, viz., adverse possession for a sufficient length of .time to bar any action for recovery of the possession or title of the premises, we will not now comment. As there must be a new trial and they must again be submitted to the jury or a trial judge for determination, a. discussion of them at this time is unnecessary and might be prejudicial to the rights of one or the other of the parties in another trial. The judgment of the district court is reversed and the cause remanded.
Reversed and remanded.