3 Greene 556 | Iowa | 1852
Opinion by
Bill filed by James M. Walters, in wbicb William L. Hamilton and Lysander W. Babbitt were made defendants. Tbe bill alleges, in snbstance, that on the first day of March, 1850, the complainant engaged the defendant, Hamilton, to enter in his own name, at the Fairfield land office, the east half of the north-east quarter of section twelve, in township seventy-five, north of range twenty west, in Marion county, Iowa; that the land was entered with the agreement that if complainant paid, in a short time to Hamilton, tbe purchase money, and an additional amonnt for his trouble in entering tbe land, and as interest on his money, that Hamilton was to execute to complainant a warrantee deed tor said land, whenever a patent should issue for the same; that under this agreement the land was entered by Hamilton, March 1st, 1850, and on
Hamilton’s answer admits every material allegation in the bill, and states that at the time, and before he assigned the duplicate, he informed Babbitt that complainant held Ms title bond for the land.
Babbit’s answer also admits nearly every allegation in the bill; but it also alleges that Hamilton was fraudulently induced to enter the land for complainant; that he, Babbitt,
Witnesses were examined in the court below, but as their evidence was not reduced to writing, we cannot be guided by their testimony. In a review of the case we can only be governed by the bill, answer and replication, and the few items of evidence which are brought to us by bill of exceptions. As the evidence is not before us, we must regard the finding of the court below upon the facts in the case as conclusive. In addition to the facts admitted by the answers, the court found that Babbitt paid Hamilton no consideration for the duplicate receipt which was assigned to him, and upon which he obtained the patent; and that the equitable title to the land is in complainant. Accordingly the court decreed that Babbitt should convey the land to complainant.
Upon the trial several bills of exceptions were taken, which we will proceed briefly to examine:
1. By the first it appears that Babbitt offered to introduce the record of a deed from one Ryan to him, to show that he had purchased Ryan’s claim to a portion of the land before it was entered by Hamilton. It is now claimed that the court erred in sustaining the objection to this evidence. As the instrument was a mere informal release of claim right to government land, it could impart no equity,
2. By the second bill of exceptions it appears that about the time for trial and before the case was called, the defendant, Babbitt, requested the court to appoint a commissioner to take depositions to he used as evidence in the cause, which the court refused to do, hut decided that as the cause had been set for trial at the last term, and as the witnesses had been subpoened, that the cause must he heard, and that the parties might examine the witnesses orally before the court. We see nothing oppressive or unauthorised in this ruling of the court. It is true that the evidence in the case should have been reduced to writing so that the parties might have had the full benefit of the evidence on appeal. If the application for a commissioner to take depositions had been made at the previous term of the court it would doubtless have been granted. But as the cause had been set for trial at the previous term and as the application was not made till the time of trial had arrived, we think the court was justified in overruling it.
3. The only remaining hill of exceptions contains many questions to witnesses, and answers, which it is urged were either improperly overruled or improperly admitted. Those which are represented as most objectionable in their admission or rejection, have, we think, no material bearing upon the case and however disposed of, could produce no change in thq decision. Any action of the court below upon immaterial or irrelevant questions and answers in taking testimony, could not justify this court in reversing the decision.
So far as the record presents the case we cannot avoid an affirmance. Hamilton appears to have acted in trust for
As the land was subject to be entered by any person, Babbitt had the same opportunity to purchase it that complainant had, and as B. had it under a claim and improvement it is to be regretted that he did not make them available by securing title to the land. He can only attribute the loss to his own negligence. However strong the moral obligation may be to respect snch claims and improvements, it is clear that no rule of law or equity can be found which could preclude a man from making such an entry or which could transfer the title acquired by the entry from the pm’chaser to the former possessory claimant.
Although the right to sell and purchase claims and improvements upon the public lands, is recognised by our laws so far as to make any sale of such improvement a sufficient consideration to sustain a promise, still such claim right can in no way impair or come in conflict with the title which a purchaser may acquire from the United States.
As the record presents the case to our consideration, we I can see no good reason for disturbing the decree below.
Decree affirmed.