83 Iowa 89 | Iowa | 1891
The respective parties trace the-origin of their titles -to grants of land by the United States; that of the plaintiff being to the swamp-land, grant act, approved September 28, 1850, as amended;, and the defendant to the Iowa railroad grant of May 15,. 1856, as amended. The claim of the record title of the-parties'is as follows: That of the plaintiff, the act of' congress of 1850 granting to the states the swamp and overflowed lands unfit for cultivation within their boundaries; the act of the general assembly of 1853, granting to the counties the swamp and overflowed lands within their limits, which were, by the acts of' congress in 1850, granted to the states; and a conveyance by the county of Linn to him, September 4, 1888. That of the defendant, the Iowa railroad grant of 1856; a certification of the land under the act by the' commissioner of the general land-offi.ce, December 23,1858,. approved by the secretary of the interior, December 27,. 1858, which list-was, under .chapter 167, Acts of the-Eighteenth General Assembly, signed by the governor,.
I. It is important that we first determine from the evidence in the case a question of fact, as to the actual character of the land on September 28, 1850, which is the date of the- grant to the states of the swamp lands by congress. No intelligent discussion of the question can be given without quoting a volume of evidence that would be unwarranted, and of no practical use. Our examination of the evidence leads us to the conclusion that at the date of the grant the tract was overflowed land, within the meaning of the act referred to, and the case will be considered with that as an established fact.
Importance in argument is given to the fact that in all the cases passed upon by this court there had been some kind of selection by the state or county of the lands in question, even though there had been neglect or failure on the part of the proper officers of the United States. But we do not see how that fact changes the rule. This land being, as we have found, under the rule sanctioned in Railway Co. v. Smith, •overflowed land, the title passed at once to the state on the passage of the act of September 28, 1850. If the plaintiff is not the owner as the grantee of the state, it must be the result of a forfeiture, and under the claim now being considered the forfeiture would result from the neglect of the state to make selection. But the act granting the land does not make the title in the state depend upon any such a duty, nor does it devolve upon the state any duty in this respect. The selections by the state, as we understand, were made in pursuance of instructions from the commissioner of the general land-office, and merely as an aid to the preparation of lists by the secretary of the interior. The fact that the state even in its own interest aided the officer of the general government to identify or select the lands belonging to it should not induce a forfeiture as the result of a mistake or oversight. The title of the state was not intended, as the grant is construed, to depend upon selections, but upon actual physical facts. The means of identification were patent to all. The railroad company took, under the grant in its aid, with knowledge •of the law, and with opportunities equal to others to know facts upon which its title would depend.
IY. The written conveyance of the land from the county to the plaintiff is as follows:
3. Conveyance: sales of county lands: board of supervisors. “In consideration of $1, we, J. H. Davis, James G-uill and. M. E. Bunting, in our official capacity as Supervisors of LÍUU COUnty, State of Iowa, hereby sell and convey and forever quit-c}ajmj;0 j_ j). Hays the following described premises in Linn county, Iowa, to-wit, southwest quarter of the northwest quarter of section 19, township 85, range 8, to have and to hold the said premises unto the said J. D. Hays, his heirs and assigns forever,*96 with all and singular the appurtenances thereto belonging.
“Signed the fourth day of September, 1888.
“J. H. Davis,
“Chairman Board of Supervisors Linn County.”
It is urged that the instrument is insufficient to pass the title, because by Code, section 305, it is provided that “no real estate shall be purchased or sold * * * without a majority of the whole board of supervisors voting therefor and consenting thereto.” The following stipulation is in the record: “It is conceded that the plaintiff and the members of the board of supervisors will swear that on or about the fourth day of September, 1888, the plaintiff purchased the land in controversy from Linn county, Iowa, through the board of supervisors, for the sum of fifty dollars, which was paid at that time by the plaintiff giving his promissory note therefor, which was accepted by the board in full payment of the value and contract price.” The sufficiency of the instrument of conveyance we need not discuss. It plainly appears from the record that there was between the board and the plaintiff an understanding, and such a performance by the plaintiff that he was entitled to a proper instrument of conveyance of the land, and that such a conveyance was intended. If the conveyance is insufficient it is evidently the result of a mistake, against which the law would afford relief. The title of the plaintiff is sufficient as a basis of recovery against the defendant.