| Idaho | Aug 14, 1913
Lead Opinion
This action was instituted by the mayor of Boise City for the purpose of securing a decree canceling
The complaint alleges that the appellant is the duly elected, qualified and acting mayor of Boise City, and as such is the successor in interest as trustee to all the rights conferred under and by virtue of the laws of the United States and the territory and state of Idaho relative to the entry and disposition of government townsites for the use and benefit of the several occupants and inhabitants thereof. The following is the substance of the material allegations of the complaint: That John Lemp departed this life on the 18th of July, 1912, and that Herbert Lemp is the executor of his estate; that Edward Lemp, one of the devisees under the will of John Lemp, deceased, departed this life on the 15th of September, 1912, and that Herbert Lemp is the executor of his estate; that Henry E. Prickett, as mayor of Boise City, on November 23, 1867, filed a plat of Boise City in the office of the recorder of Ada county, Idaho, and which plat ever since has been and now is of record in the office of the county recorder of Ada county; that Henry E. Prickett, as mayor of Boise City, filed upon the townsite of Boise City on the 13th day of January, 1868, in accordance with the statutes of the United States and the rules and regulations of the Interior Department; that thereafter and on the 2d day of May, 1870, a patent issued from the United States to Henry E. Prickett, as mayor, in trust for the benefit of the occupants and inhabitants of Boise City, which patent is of record in the office of the county recorder of Ada county; that the patent as issued to Prickett, mayor, granted and conveyed 442 acres, whereas the plat of the original town-site of Boise City, as filed and recorded by Prickett, covered an area of only 410 acres, and that there was granted by said patent the sum of 32 acres in excess of the amount covered by the recorded plat of the townsite of Boise City and that the excess area of 32 acres was not platted; that James A. Pinney, as mayor and trustee and as the successor in office of' Henry E. Prickett, did on the 5th day of June, 1891, in
Plaintiff alleges a second cause of action in which he sets out the same facts as heretofore recited with reference to the entry of Boise City and acquiring title thereto, and then alleges that on the 25th of June, 1897, Walter E. Pierce, as mayor of Boise City, made application to the United States land office for an additional townsite entry under the laws of the United States, which application was duly allowed, and thereafter and on the 23d day of May, 1898, a patent issued
To this complaint the defendant demurred on various grounds, among which is that the complaint does not state facts sufficient to constitute a cause of action and that plaintiff has no legal capacity to sue, and that the complaint shows upon its face that the cause of action attempted to be stated was barred by the provisions of secs. 4036, 4037, 4039 and 4040, Rev. Codes.
It is first contended that the mayor cannot maintain this action. We do not think this contention is well taken. The townsite of Boise City was entered under the provisions of sec. 2387 of the Rev. Statutes of the United States (U. S. Comp. Stats. 1901, p. 1457, 6 Fed. Stats. Ann. 344), which section is as follows:
*408 “Whenever any portion of the public lands have been or may be settled upon and occupied as a townsite, not subject to entry under the agricultural pre-emption laws, it is lawful, in case such town be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judge of the county court for the county in which such town is situated, 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, and the proceeds of the sales thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated.”
Sec. 2391 of the Rev. Statutes of the United States (U. S. Comp. Stats. 1901, p. 459, 6 Fed. Stats. Ann. 351), provides that “Any act of the trustees not made in conformity to the regulations alluded to in sec. 2387, shall be void.” On January 6, 1871, the territorial legislature passed an act providing for the disposition of the townsite of Boise City pursuant to the provisions of sec. 2387, U. S. Rev. Statutes (U. S. Comp. Stats. 1901, p. 1457, 7 Fed. Stats. Ann. 344), and the several acts of Congress (Special and Local Laws of Idaho, p. 30). Sec. 1 of this act provided that the mayor should act as trustee and make deeds of conveyance to all parties entitled thereto according to their respective interests, and that within ten days after the passage of the act he should publish a notice in some newspaper published in Boise City, requiring all persons claiming lands- therein- to make their respective claims therefor to him at his office, and that at the same time he should make or cause to be made and filed in his office a plat of the townsite of Boise City, which plat should in all respects be a true and correct copy of the one on file in the office of the county recorder of Ada county, and which plat had been filed by Henry E. Prickett, mayor, who entered the townsite in the United States land office. Sec. 2 of the act of January 6,1871, provides as follows:
*409 “The occupants of said townsite may at any time within sixty days after the filing of such plat and the publication of the notice aforesaid, make their respective applications for title to such portion of said townsite as is claimed by them, which application shall be in writing, and shall set forth that such claimant is an occupant of said townsite, and of the lot or lots, block or portion claimed by him or her, and shall specify in what such occupancy consists, which shall be either actual residence thereon, in closure, or some permanent improvement on some portion of the lot or block claimed, and shall particularly designate and describe such lots, blocks and improvements, and said applications shall in all cases be verified by the oath of the applicant, or by some person on his or her behalf, in the manner prescribed for the verification of pleadings in civil actions in courts of justice in this territory; provided, that no claim shall be received which shall not conform to the requirements of this act.....”
Section 3 of that act provides that at the expiration of sixty days from the giving of such notice, the mayor should, upon the payment of the price provided in section 5, where no adverse claims had been filed, execute deeds to all parties, making and filing their applications within the sixty-day period, and section 8 provided that all lots remaining unclaimed for a period of three months after the first publication of the notice, as required by section 1, should be sold at public auction to the highest bidder for cash, after giving at least three weeks’ notice in the manner prescribed for the notice of sale of real estate by the sheriff on execution, the proceeds of such sale to be paid into the treasury of Boise City.
Lemp did not avail himself of any of the provisions of this statute, and made no claim thereunder for any of the land here in controversy. Thereafter, the territorial legislature of 1875 passed an act supplemental to the act of 1871, whereby the mayor was authorized to cause published notice to be given to all parties who had made applications for deeds and who had failed to make payment therefor, to make their payment, together with ten per cent penalty, and receive their deeds. This act provided that upon failure to do so, the mayor should
The mayor was by law made the trustee for the city and its inhabitants, and we are satisfied that if any action can be maintained, it must be maintained by the mayor as trustee for the community in its collective capacity; or, in other words, for Boise City.
This court, in considering a like trust in Scully v. Squier, 13 Idaho 417" court="Idaho" date_filed="1907-05-18" href="https://app.midpage.ai/document/scully-v-squier-5169375?utm_source=webapp" opinion_id="5169375">13 Ida. 417, 90 Pac. 573, and in discussing the duty of the mayor as trustee under the government townsite law (sec. 2387, U. S. Rev. Stats.; U. S. Comp. Stats., p. 1457, 6 Fed. Stats. Ann. 343), and the statute of this, state as applied to the townsite of the city of Lewiston, said:
‘ ‘ The trust provided for by this section is dual in its nature. It exists for the benefit of the occupants as individuals, and also collectively as a community. The title to occupants of lots vested in the mayor-trustee for their benefit severally when the entry was made. The title to lots to which no valid claims are held by individuals is taken in trust by the trustee for the occupants of the townsite collectively.” (To the same effect, see Newhouse v. Simino, 3 Wash. 648" court="Wash." date_filed="1892-01-29" href="https://app.midpage.ai/document/newhouse-v-simino-4725533?utm_source=webapp" opinion_id="4725533">3 Wash. 648, 29 Pac. 263.)
Applying this rule to the case at bar, the mayor of Boise City took title in trust for all the individual occupants of the townsite who made claims to the respective lots or tracts occupied by them,.and it became his duty under the statutes of the United States and the statutes of this state (then territory) to convey the title held by him to the respective occupants and claimants who, in compliance with the statute, showed themselves entitled thereto. On the other hand, he held such tracts or parcels of this townsite as were not claimed by individual occupants in trust for the community in its collective capacity. The fact that no one made claim to any given tract of ground in accordance with the provisions and requirements of the statute did not authorize or license any
It has been suggested that the city could not hold the title to the property and that the mayor as trustee could not convey the property to the city. "We are not directly confronted with that question in the present case, but, in passing, we may observe that the statute directs that the proceeds realized from the sale of any unclaimed or unoccupied tracts of this town-site should be turned in to the treasury of Boise City. If, then, the proceeds realized from the sale of any unoccupied or unclaimed tract would go into the general treasury of the city and become the property of the city, we can see no reason why the tracts or parcels of land for which such sale might be made might not likewise belong to the city and become the property of the city. There can be no special virtue in a sale that will convert the title of the proceeds to the city if the property sold was in fact not the property of the city.
This would bring us back to the original proposition that any unsold or unclaimed lots or parcels of land in this town-site belong to the city, — to the inhabitants of the city in their collective capacity, — and so would the proceeds realized from the sale of any of this property become the property of the city, and, in conformity with the statute, must be turned into the city treasury.
The demurrer should not have been sustained. The complaint on its face does not show that the cause of action is barred, nor does it show such facts as in equity would invoke
Dissenting Opinion
Dissenting. — I am unable to concur in the conclusion reached by my associates. I do not think that the mayor, under the facts alleged in the complaint, can maintain this action. The mayor parted with the title to the greater portion of the land in controversy more than twenty years before this suit was brought. During all that period of time the predecessors in interest of this plaintiff, as trustees, and the cestui que trusts, if any, have never taken any steps whatever to claim any right, title or interest in and to any of the real estate set forth in the first cause of action. Under the second cause of action, a period -of fourteen years had expired since the patent to the land described in said second cause of action was issued by the United States to the mayor of Boise City', and more than four years has elapsed since the same was conveyed by the mayor of Boise City to John Lemp, deceased, and during that period of time no action or proceeding of any kind, so far as the complaint shows, has been commenced by the plaintiff or his predecessors in office, as mayors, or by any other person claiming any right, title or interest in or to the premises described in .the second cause of action. Under that state of facts, I think it sufficiently appears that the plaintiff as well as the cestui que trusts, or beneficiaries, have been guilty of such laches as will prevent recovery in a court of equity.
The complaint alleges that the plaintiff did not discover the facts constituting the fraud in conveying said lands until September, 1912, and also alleges, upon information and belief, that his predecessors in office, since the time of the execution of the deeds in question, had no knowledge of the facts
It is stated in Wood v. Carpenter, 101 U.S. 135" court="SCOTUS" date_filed="1879-12-22" href="https://app.midpage.ai/document/wood-v-carpenter-90102?utm_source=webapp" opinion_id="90102">101 U. S. 135, 25 L. ed. 807, that a general allegation of ignorance at one time and of knowledge at another are of no effect. If the plaintiff made any particular discovery, it should be stated when it was, how it was made, and why it was not made sooner. If Lemp’s mayor’s deed was not placed upon record, and Lemp was not in possession of the property to which he was claiming title, and there was nothing to indicate such claim, these facts should have been alleged. It is a well-settled principle of law that possession of the means of knowledge is the same as knowledge itself. (New Albany v. Burke, 11 Wall. 96" court="SCOTUS" date_filed="1871-04-10" href="https://app.midpage.ai/document/new-albany-v-burke-88306?utm_source=webapp" opinion_id="88306">11 Wall. 96, 20 L. ed. 155.)
No doubt the deeds referred to were evidenced by public records accessible to all, and it is a well-settled rule that the party who seeks to avoid the effect of such record notice must
Under the allegations of the complaint, it appears that the predecessors in office and as trustees, Pinney and Haines, had knowledge of all the facts constituting any fraud in this case. This would start the statute of limitations in operation so far as the recovery upon the ground of fraud is concerned. But this being a ease for the recovery of real property and the quieting of title thereto, and the fraud alleged being a mere incident, the action is barred by the five-year limitation above stated. And if it is barred as to the trustee, as it certainly is, and if the present plaintiff is a trustee having a right to bring this action, then every other person who is .elected mayor of Boise City subsequent to these conveyances also had the
The plaintiff in this action has no standing in a court of equity to maintain this action, for under the United States Statutes, the townsite act, the only title vested in the mayor is the naked legal title; the equitable title is in the beneficiary. After the trustee under the townsite act has executed a deed of the property, whether the same be rightfully or wrongfully issued, the trust being terminated, the only person who can question the transfer is the beneficiary or cestui que trust. (Cowell v. Colorado Springs Co., 100 U.S. 55" court="SCOTUS" date_filed="1879-11-17" href="https://app.midpage.ai/document/cowell-v-springs-co-90012?utm_source=webapp" opinion_id="90012">100 U. S. 55, 25 L. ed. 547; Murray v. Hobson, 10 Colo. 66" court="Colo." date_filed="1887-04-15" href="https://app.midpage.ai/document/murray-v-hobson-6561457?utm_source=webapp" opinion_id="6561457">10 Colo. 66, 13 Pac. 921.)
Under the commission form of government, the mayor is mayor in name only. He is, as a matter of fact, only one of five couneilmen who control the city. He is the head of one of the departments. He cannot of his own initiative commence an action on behalf of Boise City any more than can any other one of the five members of the council.
And again, what is the object of the mayor in prosecuting this action? If successful, what does he propose to do with this tract of land ? Under all of the authorities he cannot convey it to Boise City for a park or for any other purpose. He must sell it. Under the authority, the mayor as trustee acts in a judicial capacity in passing upon the question as to who is the beneficiary under the townsite act. The two former mayors of Boise City have passed upon that question. They have held that John Lemp was entitled to the property and conveyed it to him. As long as the title remained in the trustee, he might maintain an action to protect his own title or possession of the property, but he is nowhere authorized to
It is alleged in the complaint that the greater portion of said land was conveyed to John Lemp by the mayor on the 5th day of June, 1891, and in order to hold the title to said land all these years, John Lemp has certainly paid all taxes levied by the city, county and state on said land. It is presumed that the taxing officers performed their duty in regard to it, and after paying city taxes on said land for twenty-one or twenty-two years, the city, or its mayor, is in equity and good conscience estopped from now claiming title thereto.
I think, under the allegations of the complaint and the law applicable thereto, the mayor is not the proper party and cannot maintain this action; that the action is barred by the statute of limitations, and that sufficient facts are not alleged, and the doctrine of laches and estoppel should apply. The complaint does not state a cause of action.
Petition for rehearing denied.