38 Iowa 351 | Iowa | 1874
— The land in dispute was claimed and selected by the Cedar Rapids & Missouri River Railroad Company, under the grant of lands to that company by Congress,
The land in dispute is. “ the south-east quarter of the' northeasi quarter of sec. 6, tp. 82, range 29.” On the 9th day of March, 1855, Alford Luce made application at the United States land office at Des Moines, together with the usual agreement in writing, to purchase of the United States “ the north-west quarter of the south-east quarter, and the south-east quarter of the north-west quarter of sec. 6, tp. 82, R. 29.” Previous to this time, B. F. Allen had entered the forty ácre tract last above described. It is claimed by defendant that in making said application said Luce intended to purchase the land in dispute, viz: the south-east-of the north-easi quarter, instead of the sbuth-east of the north-west quarter which had been previously entered by B. F. Allen, and it is claimed that said Luce did in fact apply to purchase the land in controversy, and that by mistake the written application omitted to describe it, but described other land.
We do not stop to discuss the power of courts of equity to relieve against mistakes, nor- under what circumstances such power will be exercised, but conceding that defendant would be entitled to the relief prayed, if the proof supported the averments of the cross-bill as to the fact of mistake, we are very clear that there is no such evidence of the alleged mistake as will warrant a court of equity to overturn the legal title to lands held by the other party.
There is no evidence showing when, where or by whom these numbers were placed thus on the plat. Owing to the conflict between Luce’s and Allen’s entry no patent ever issued to Luce for the land described in his application. To our minds there is an entire absence of evidence to show that there was a mistake in the application of Alford Luce. On the contrary it seems clear that whoever placed the number of the application on the plat of the tract in dispute must have done so by mistake, if done by any one having authority to make the entry. At all events, this mere fact that these figures are found placed upon the plat on the land in question, cannot have the effect to overthrow all the other evidence as to the identity of the tract applied for by the enteror, Luce — evidence of a solemn character required by law and the regulations of the land department of the governmant to be made, upon the application of an individual to purchase any. portion of the public lands.
Luce never took possession of the land in controversy. He, through his attorney in fact, A. J. Stevens, deeded it to Lewis Adkins, father of defendant, August 6th, 1857, who executed a deed purporting to convey the land to the plaintiff, February 5th, 1860, and he, it seems, took possession thereof in 1858, being at the time a resident on adjoining land. We are unable, therefore, to gather anything from the possession of the land throwing any light upon the question of the alleged mistake.
We are forced to the conclusion that Luce, through whom the defendant claims, did not apply to enter the land in controversy at all. That there was no mistake in the description of the lands he did apply to purchase, and that he never acquired any right or title thereto.
II. It is urged, however, by counsel for appellee that the plaintiff’s grantor, through its agent, had notice of the claim of the defendant at the time of selecting the land as belonging to the railroad grant. This may be conceded, and yet we cannot see how such notice would affect the plaintiff’s rights.
It is under these provisions of the act of Congress that defenddant insists that his claim to the land in dispute is protected. We are unable to come to the conclusion that his claim is well founded. The defendant cannot claim to hold the land because of any pre-emption or homestead right, in him or any of those, under whom he claims. Neither of them ever made any such claim or took any of the steps necessary to found such a claim and, as we have seen, no effort was made by Luce, from whom defendant claims, to purchase the land in controversy from the United States. He did apply to purchase other and different lands, -but not this. It is not claimed that the defendant derives any title under the State of Iowa. Nor can it be said that defendant is in the position of one who has made a bona fide settlement and improvement under color of title derived from the United States, because neither he nor any of those under whom he claims had color of title to the land from the United States, for as we have seen, neither of 'them ever made any effort to procure a title thereto from the government.
Tbe defendant’s naked possession could not create any right adverse to the United States; nor could possession under claim of title create any right as against the grantee of the United States unless continued for such a length of time after the government parted with the title as to entitle the defendant to avail himself of the benefits of the statute of limitations. . This has not been tbe case. The title remained in the United States until April 20th, 1889, when it was certified to the railroad company. This action was commenced a little over three years thereafter.
The decree of the District Court must be
Beversed.