Hammer v. Hammer

39 Wis. 182 | Wis. | 1875

Cole, J.

The ground of the decision granting the nonsuit is not stated, and, as the bill of exceptions does not purport to contain all the evidence given on the trial, we are unable to determine what it was.

The plaintiff seems to have shown, prima facie at least, that she was married to Ira Hammer in September, 1827, in Oneida county, New York, by a justice of the peace, and that she was never divorced from him. It also appealed that Hammer died in 1873, leaving no issue by the plaintiff. Under the statute his estate descended to his widow.

As a part of her case, the plaintiff offered in evidence a certificate of the register of deeds of Calumet county, in which the register certified that he had carefully examined the records in his office, and found that the lot in question in the Brothertown Reservation was allotted to Ira Hammer pursuant to the act of congress of March 3, 1839, as appeared by a map or plat of the Brothertown Reservation certified to by the commissioner of the general land office at Washington and filed in the register’s office. The attorneys of the parties had stipulated that this certificate of the register as to the filing and contents of the allotment of lands of the Brothertown Indians in the Brothertown Reservation should be admitted in evidence on the trial the same as if -the original allotment were offered in evidence. The admission of the certificate was objected to, and it was ruled out as not being evidence of title in Ira Hammer. In connection with this proof the plaintiff offered to show that Hammer took immediate possession of the premises allotted to him in 1839, claiming them as his own, and occupied them until his death. But this evidence was excluded on the objection of the defendant. It seems to us the evidence offered, if not conclusive upon the question of ownership, tended to prove title in Ira Hammer, and sbonld have been admitted. According to tbe stipulation, tbe certificate of tbe register, as to tbe filing and contents of tbe report of tbe commissioners, was to bave tbe same effect in evidence as tbe original report. There can be no donbt that tbe allotmebt under tbe act of congress vested in the allottee an equitable title, if it did not give him tbe fee, as it probably did not (see ch. 83, 5 U. S. Stats. at Large, p. 349, sec. 6). Rut though tbe naked legal title remained in tbe United States,'all tbe beneficial interest passed to tbe allottee, who became tbe real owner of tbe property. Ilis rights w*ere the same in respect to the land apportioned to him, as those of an ordinary purchaser who receives tbe usual certificate at a cash entry. Witherspoon v. Duncan, 4 Wall., 210; Whitney v. Gunderson, 31 Wis., 359. Now it was proposed to show that Hammer entered into possession under tbe allotment, claiming tbe land as bis own, and continued in tbe occupation of it for more than twenty years. And tbe question is, Did not tbe original allotment, and this proof of possession under it until tbe bar of tbe statute bad run (cb. 138, sec. 6), tend to show a valid title in Ira Hammer at tbe time of bis death? It seems to us that tbe question must receive an affirmative answer. It will be borne in mind, that under our statute a receiver’s receipt, or tbe certificate of tbe entry or location of lands made by a receiver or register, is made prima facie evidence of title. Sec. 130, cb. 137, R. S. Doubtless, Hammer in bis lifetime could bave maintained an action of trespass or ejectment against any disseizor or trespasser. No court, upon tbe facts proposed to be proved, could deny bis right to maintain either action under our statutes. In Bates v. Campbell, 25 Wis., 613, it was held that bare possession constitutes an interest in land, sufficient to sustain ejectment against a wrongdoer who has intruded on such possession. And in Carpenter v. Weeks, 2 Hill, 341, which was an action of ejectment for dower set off to tbe plaintiff, Mr. Justice Cowen says: “Possession of land with, claim of title is jprima, facia sufficient evidence of seizin in fee, even to sustain the demandant’s claim in a writ of right. (Doe ex dem. Graham v. Penfold., 8 Carr. & Payne, 536, with the cases cited in Cowen & Hill’s Notes to 1 Phil. Ev., 354.) Some cases do not even require a claim, hut hold a naked unexplained possession to he primafacie sufficient. In Jackson v. Waltermire (5 Cow., 301), which was dower wade nihil habet, Savage, C. J., said he thought the same evidence of seizin should entitle the widow to recover her dower, as 'would he sufficient to authorize a recovery by the heir. In such case the seizin of the deceased is proved hy showing his actual possession of the premises.”

There can he no doubt that the evidence offered by the plaintiff should have been admitted as tending to establish her right to recover. Other questions are discussed in the briefs of counsel; but as the bill of exceptions does not purport to contain all the evidence given on the trial, we are in the dark as to what the facts were, bearing upon those questions. Of course we express no opinion upon them.

Py the Gov/rt. — The judgment of the circuit court is reversed, and a new trial ordered.