34 Fla. 130 | Fla. | 1894
Appellee brought ejectment againt appellant to recover possession of lot eight (8) of section nineteen, township twenty-nine south, of range nineteen east,, and. lot seven (7) of section twenty-four in township-twenty-nine south, of range eighteen east, containing in all 40 19-100 acres, and obtained judgment.
The defendant below filed the plea of not guilty, and a plea on equitable grounds. A demurrer was sustained to the latter plea, and an amended plea on same ground was offered to be filed, but was refused by the court for the reason assigned, that it presented no equitable defense. A consideration of the merits of the amended plea will suffice to dispose of the errors assigned in the rulings of the court in reference to the equitable pleas.
The amended plea offered to be filed alleges in substance that the land sued for was situated within the Fort Brooke Military Reservation of the United States, at Tampa, Florida, and that the plaintiff claimed title to the same by virtue of a patent predicated upon a pretended location and entry on the land made in the-United States Land Office at Gainesville, Florida, by Louis J. Brush, plaintiff’s grantor, with Valentine scrip; that at. the time of the said location and entry of said land, and at the time of the issuance of the patent to Brush, the defendant was in actual occupancy and possession of said land, and was residing upon it with his family as a home; that defendant had. settled apon and was in the actual possession of- said land, it being a portion of said Fort Brooke Military
It will be seen by reading the foregoing plea that while the issuance of a patent on a location and entry of the land with Valentine scrip is admitted, one purpose is to impeach the patent on the ground that the land was reserved, and not subject at the time to be entered by such scrip. Before examining the allegations of this plea, reference will be made to the acts of Congress on the subject, and" also to some decisions bearing on the character of the defense sought to be made by the plea.
In April, 1873, Congress passed an act authorizing the Ninth Circuit Court of the United States, for California, to hear and decide upon the merits of the claim of Thomas B. Valentine, under a Mexican grant to-Juan Miranda, to a place called the Rancho Arroyo de San Antonio, situated in Sonoma county, State of California, with’ right of appeal to the Supreme Court of' the United States. It was also provided in said act that any decree that might be obtained in favor of said claim should not affect any adverse right or title to the lands described in the decree, but in lieu thereof the claimant, or his legal representatives, might select and should be allowed patents for an equal quantity of the unoccupied and unappropriated public lands of the United States, not mineral, and in tracts not less than, the subdivisions provided for in the United States.
In August, 185G, provision was made by an act of Congress as follows: “That all public lands heretofore reserved for military purposes in the State of Florida, which said lands, in the opinion of the Secretary of AYar, are no longer useful or desired for such purposes, or so much thereof as said secretary may designate, shall be and are hereby placed under the control of the General Land Officer, to be disposed of and sold in the same manner and under the same regulations as other public lands of the United States;, provided, that said lands shall not be so placed under the control of said General Land Office until said opinion of the Secretary of AYar, giving his consent,, communicated to the Secretary of the Interior in writing shall be filed and recorded.” Chapter 129, act of August 18th, 1850. This act was repealed in 1884, and provision made by the repealing act that whenever, in
The right to interpose a plea on equitable grounds in •an action of ejectment is clear, provided the matter set up in such plea will authorize the defendant to enjoin .in a court of equity the judgment, should one be re
The action of the land office in disposing,of land subject to sale under any law regulating the disposition of the public domain, is conclusive of the legal title so far as an enquiry into all matters connected
The Supreme Court of the United States clearly holds, as we understand it, that if the land patented was not under the control and subject to disposition of the land office, the patent is void and its invalidity may be shown in an action of ejectment to recover the land by virtue of the patent. The act of Congress of 1872 authorizing the issuance of thé Yaleutine scrip provides that patents may issue for it for an equal quantity of the unoccupied and unappropriated public lands of the United States, not mineral, whether •surveyed or not, in tracts not less than the subdivisions provided for in the United States land laws, and, if unsurveyed when taken, to conform when surveyed to the general system of the United States land surveys. ' The plea alleges that the land sued for and ■entered with Yalentine scrip was situated within Port Brooke Military Reservation, at Tampa, and at the time of said entry and the issuance of said patent to plaintiff’s grantor the land was within the jurisdiction of the War Department of the United States, and not within the Land Department. It is also alleged that the patent was in fraud and violation of the acts of ■Congress and of the rights of the War Department, and was void, but this allegation of fraud must be taken as referring to the issuance of the j-jatent when the land was within the jurisdiction of the War Department, and not subject to the control of the Land Office Department. As an independent allegation of fraud, it would be nothing but a legal conclusion of
So far we have considered the plea on the theory that the defendant was shown to be in a situation to attack the patent on the ground that it was void. He bases his right to the land on a settlement and occupancy of the land under the act of Congress of July 5th, 1884, .and his right to make a homestead entry, and it will be observed that the rights given to the settler in the first proviso in this act is coupled with a further proviso that the land was subject to entry under the public land laws at the time of their withdrawal. The .actual occupancy of the land by the defendant is .alleged, as well as his right to make a homestead ■entry and to enter the land, but there is no distinct allegation that the land was subject to entry •under the public land laws at the time of its withdrawal.
The question of defendant’s right to attack the patent is involved in the further questions presented on the
On the trial a patent for the land described in the ■declaration to Louis J. Brush, bearing date September 13th, 1882, was offered in evidence by the plaintiff, and objected to by the defendant, but the objection was overruled and the patent admitted in evidence. There was no error in admitting the patent. It recited that it was issued upon a location of the land in the district of lands subject to sale at G-ainesville, Florida, with scrip issued by virtue of the act of Congress in 1872, in favor of Thomas B. Yalentine, and was in due form. The patent was at least prima facie evidence ■of a, good conveyance of the land, and, in the absence of anything to impeach it, should have been admitted in evidence. A deed from Brush and wife conveying the land to plaintiff, was then introduced without objection.
Defendant offered as documentary evidence, certified, ■copies of what purports to be official communications between the Secretary of War and the Secretary of the Interior, commencing in I860, in reference to Fort Brooke Reservation at Tampa, and also the approvals of the President of the United States in 1877, and 1878, of the request of the Secretary of War in reference to said reservation. The purpose for introducing this evidence was to show that the land described in the patent was a part of the military reservation of Fort Brooke, at Tampa, when the patent was issued. On objection of plaintiff the documentary evidence was excluded and defendant excepted. Defendant then testified that he was a native born citizen of the United States, and the head of a family, and offered to show that he settled upon the land in question prior to the issuance of the patent, and was actually occupying
The rights given to the settler of any part of a military reservation by the act of July 5th, 1884, were upon the condition that said land was subject to entry under the public land laws at the time of their withdrawal. There was no showing made or offered to be made that the Port Brooke Reservation at Tampa was ever subject to entry under any of the public land laws when it was withdrawn for a reservation. If it had never been subject to such entry, the defendant could acquire no rights by virtue of the act mentioned to enter the land under the general laws, as Congress had not secured to him such right by said act in providing for the disposition and sale of military reservations. At most he was an occupier of lands of the United States without any right of entry, and without any authority of law. We have been unable to find any authority to sanction the view that a mere trespasser upon public land has the right to question the legality of a patent issued by the United States land officers. The case would be entirely different if a settlement should be made upon public land subject to entry under the provisions of law, and we find cases holding that inchoate rights acquired under such an entry will be protected even against a patent issued in violation of such a settler’s rights. In the case of Doolan vs. Carr, supra, which was an action of eject-. ment, and in which the right to attack a patent issued
This conclusion is also decisive of the questions presented here on the giving and refusing to give instructions to the jury. The plaintiff was entitled to recover the land sued for on the showing made, and the court did not err in refusing to give the charges asked by the defendant. There was no testimony before the jury to authorize the charges reu'qested by the defendant and refused.
No objection was made to the introduction of the-deed from Brush, the patentee, to the plaintiff, and it is not necessary to consider any questions arising under this conveyance.
There is only one other assignment of error which, we deem it necessary to refer to in this opinion, and that is, the court erred in refusing to permit defendant to introduce the original record of a deed from the plaintiff to Walter B. Clarkson for the land in dispute.. The purpose in offering this deed in evidence was to show that the plaintiff did not have title to the land at the time of trial. The original record book was objected to because the original deed was not accounted for, and the record offered was not a certified copy of the deed, so as to permit the introduction of a copy in lieu, of the original deed. The court refused to permit the original record from the record book to be read in evidence. The Constitution, Article XVI, Section 21, provides that deeds and mortgages which have been proved for record and recorded according to law, sha’l. be thaken • as prima facie evidence in the courts of this State without requiring proof of execution, and
It is our opinion that the judgment appealed from in this case should be affirmed on the record before us, and it will be so ordered.