The opinion of the court was delivered by
C. H. Janes brought this action against George E. Wilkinson, P. J. Bean and L. J. Bean to foreclose a mortgage on a tract of land in Washington county, described as the north half of the northeast quarter of section 25, township 2, range 4 east, which was executed by the defendant Wilkinson to secure the payment of purchase-money to Janes, as trustee, on a sale and conveyance of the land to Wilkinson by E. N. Morrill. The defendant Wilkinfeon answered alleging want of title in Morrill, and a failure of consideration for the note and mortgage sued on. Bean filed an answer setting up as specific defenses : First, a denial that either the plaintiff or Wilkinson had any right, title or interest to or in the land ; second, title in P. J. Bean by virtue of a tax deed; and third, adverse possession by him under a claim of title for more than 15 years prior to the commencement of the action. The plaintiff joined issue upon these an
The special findings of fact show that the land in controversy was situated within the 10-mile limit of the grant of land made for the use of the St. Joseph & Denver City Railroad Company by an act of congress approved July 23, 1866, entitled “An act for a grant of lands to the state of Kansas to aid in the construction of the Northern Kansas railroad and telegraph,” which granted alternate sections designated by odd numbers within 10 miles on each side of the proposed road, but excepted all lands to which' the right of homestead or pre-emption settlement had attached when the route of the road was definitely located; that the right of the company under the grant attached, if at all, to the land in controversy March 28, 1870, on which day the company filed with the secretary of the interior a map designating the route of the proposed road; that on March 15, 1870, L. J. Bean, then Lydia J. Kyle, one of the defendants, filed her declaratory statement under the preemption law in the local land office for the district in which the land was situated, alleging settlement on March 11, 1870, on the northeast quarter of section 25, township 2, range 4 east, including the land in question; that she continued to reside on and improve said land from March 11, 1870, until about
The trial court, without determining what, if any, interest P. J. Bean had in the land, other than mere possession, held that the patent issued to the railroad compairy was void and did not convey the title to the land ; that no title or interest, consequently, was ever vested in the subsequent^grantees ; that the deed from Morrill to Wilkinson having conveyed no title, the consideration for the mortgage wholly failed; and that “ said Bean, at the commencement of this action, before, and since, being in possession of said premises, and being made a party hereto, is entitled to show that whatever his claim or title is, even if that of
In these conclusions we think the court erred.' They are all based upon the erroneous assumption that the patent which was issued to the railroad company was absolutely void and conveyed no title. Under the facts as found, it is clear that the land was erroneously patented to the railroad company. It is equally clear that, if the timber-culture entry of Bean was canceled on the ground that it conflicted with the grant, such action on the part of the land department was also erroneous. The right of the beneficiary under this grant must be determined as of the time when the map of the definite location of the line of the road was filed with the secretary of the interior, as required by the act. In this case, that is found to have been March 28, 1870. At that time, Lydia J. Kyle’s right to pre-emption settlement had attached, and the land was thereby excepted from the grant. (Van Wyck v. Knevals, 106 U. S. 360; Railway Co. v. Dunmeyer, 113 id. 629.)
Notwithstanding the fact that the land was thus excepted from the grant, it still continued to be a part of the public domain, and under the immediate supervision and control of the land department. Until April 14, 1880, when the patent -was issued, the legal title remained in the United States, the land was not disposed of, nor segregated from other public lands for any specific purpose. When applications should be made therefor, under any of the various acts of congress providing for the disposal of the public lands, the officers of the land department were invested with full authority to inquire', and exclusive right, in the first place, to determine, which applicant was entitled to the patent. It mattered not
It necessarily follows, therefore, that the patent in this case was voidable, not void, and might have been canceled at the instance of the United States, at any time before the title passed to an innocent purchaser ; but it conveyed the legal title to the land, and vested in the railroad company and subsequent grantees a title which was good against all the world, except against the United States, or one showing a superior equitable title. (United States v. Schurz, 102 U. S. 378; Smelting Co. v. Kemp, 104 id. 636; Steele v. Smelting Co., 106 id. 447; United States v. W. & St. P. Rld. Co., 67 Fed. Rep. 948.) In the case last cited, the United States circuit court of appeals, eighth circuit, had under consideration the question whether a patent issued under the circumstances similar to those in this case was void or voidable, and the whole subject was ably and exhaustively discussed by Mr. Justice Sanborn, who delivered the opinion of the court. In the course of the opinion, speaking of the authority of the officers of the la.nd department to pass upon the
"In deciding this question they necessarily considered whether or not the railroad company had so far complied with the acts granting the lands that it had earned them ; the character of the lands themselves, and the class to-which they belonged; the time of the definite location of the line of the railroad, the homestead entries and the pre-emption filings that were then upon the lands ; the cancellation of all these entries and filings that had been made; and, finally, the legal effect of all these and all other material facts upon the claim of the railroad company to receive the lands under the acts of congress. It now appears that they were mistaken as to the legal effect of these facts, -but the question they decided was one which the acts of congress authorized and required them to decide — one which they were obliged to decide before they issued the certificates ; and, although their decision and their conveyances evidenced by these certificates may be voidable, they are not absolutely void. They are impregnable to collateral attack, and they convey the legal title to the lands to the state and its grantees.”
If a patent has been erroneously issued, through fraud, mistake, or wrong views of the law, to one party when another was legally entitled to it, a court of equity may grant relief bjr adjudging the legal title conveyed by the patent to be held in trust for the one who has the better right to it. (M. K. & T. Rly. Co. v. Noyes, 25 Kan. 340; Johnson v. Towsley, 13 Wall. 72-85; Shepley v. Cowan, 91 U. S. 330; Steele v. Smelting Co., 106 id. 447.) Or the patent maybe canceled at the suit of the government. But an innocent purchaser of the title will be protected even against the government. (United States v. B. & M. R. Rld. Co., 98 U. S. 342; C. C. & I. Co. v. United States, 123 id. 307;
To overcome the title conveyed by the patent, and through the subsequent conveyances vested in Wilkinson, it must have been shown that Wilkinson was not in the position of an innocent purchaser, and that, consequently, the title was voidable as to him ; and that Bean, being qualified to make a timber-culture entry, had so complied with the provisions of that act as to be entitled to the patent, which he was prevented from acquiring by the erroneous cancellation of his entry. His mere possession, without title, is without avail against the holder of the legal title, notwithstanding such title may be voidable at the instance of its grantor. (Foss v. Hinkell, 78 Cal. 158; Hoofnagle v. Anderson, 7 Wheat. 212; Cooper v. Roberts, 18 How. 173; French v. Fyan, 93 U. S. 169.) If Bean was in the open, notorious and exclusive pos
Under the findings of fact made by the court, the tax deed was invalid, for the reason that no publication was made of the statutory notice of the time when the land would be deeded if not redeemed, and it furnished no defense in this case. Neither do we think the fact that Bean took an assignment of the certificate issued on the sale of the land for taxes, and accepted a tax deed, can be held to prejudice any other right or interest he may at the time have had in the land. It does not appear that he was in any way responsible for the assessment of the land for taxation, or that he accepted the deed for any other purpose than to avoid the prejudice which might result to his interests by its passing into other hands.
The claim by adverse possession cannot be maintained. The court found that Bean was in possession of the land continuously from some time in 1872 until the time of the trial. . This action was commenced November 11, 1889. But as the title was in the government until the patent issued, April 14, 1880, his possession until then was not such as would ever ripen into a title which could be asserted against the United States, or made the b^isis of a title against subsequent grantees. Rights cannot be acquired in public lands by statutes of limitation. ( Wood v. M. K. & T. Rly.
We hold, therefore, that under the findings of fact the defendants were not entitled to a judgment in their favor. We do not, however, feel justified in saying that judgment upon the findings should be rendered for the plaintiff for a foreclosure of his mortgage, and barring Bean from all further interest in or title to the land, as urged by counsel for the plaintiff. The record does not contain the evidence, and the findings are silent upon certain facts which are material and essential to the determination of the rights of these parties. If Bean was in fact and in law entitled to the patent to this land, and the plaintiff does not occupy the position of an innocent holder of the legal title, we think an opportunity should be given to show such facts.
The judgment will be reversed, and the case remanded for a new trial.