Jones v. Johnson Harvester Co.

8 Neb. 446 | Neb. | 1879

Cobb. J.

The pleadings and evidence in this case show with sufficient clearness that on the 24th day of October, 1868, George J. Jones, who was then a resident in Chicago, Illinois, sent by express to his father, "William H. Jones, at Omaha, Nebraska, the sum of two hundred dollars in money, .for the purpose of buying a quarter section of government land in the northern part of this state, where lands were then open to entry. That said money was received by said William H. Jones, who soon thereafter with said money bought agricultural college scrip, and located it in his own name on a quarter section of land in Wayne county, at the United States land office at Dakota City. That he received therefor a duplicate receipt or certificate of location in the usual form. That he thereupon filled up the blank assignment oh the back of said certificate, with an assignment of the same and the land therein described to the said George J. Jones, signed and acknowledged the same, and returned it to the said George J. Jones, at Chicago, by express. That in consequence of this assigned certificate or duplicate not having been returned or sent to the general land office, the patent for said land issued in the name of William H. Jones. That the same was offered to the said George J. Jones, who refused to receive, it for the reason that the same did not run in his name; but before discovering the said error he had delivered up to the officers at the said land office the said assigned certificate or duplicate, who retained the same. That afterwards, and sometime in the year. 1875, the said George J. Jones received a patent for the said land running to himself, under circumstances which induced him to believe that it was a corrected patent issued to him by the proper authorities, pursuant to the said assignment of the said certificate or duplicate. That he thereupon caused the same to be recorded in the proper county (Wayne), and on or about the same time conveyed the said land to one Charles Midgley, who at the same time conveyed the said land to Mary E. Jones, both of which deeds were duly recorded in said county of Wayne. That said George J. Jones commenced improving said land in April or May, 1869, and continued to cultivate the same, and pay the taxes thereon until the year 1875, since which time it has been improved and occupied by the said Mary E. Jones, either personally or by tenants, and she has paid the taxes thereon.

It further appears that on the 9th day of November, 1875, the Johnson Harvester Company recovered a judgment in the district court of Wayne county against the said William H. Jones for $117.44 and $49 costs; and again on the 12th day of September, 1876, the Johnson Harvester Company recovered another judgment against the said William H. Jones in the county court of Cuming county for $134.80 and $39.75 costs of suit, and duly filed a transcript and docketed the same in said Wayne county. That upon said judgments two executions were issued and placed in the hands of J. W. Aglee, sheriff of Wayne county, who levied upon the said quarter section of land as the property of said William H. Jones, and advertised the same for sale on the 8th day of September, 1877.

Whereupon the said Mary E. Jones commenced her suit in equity against the said William H. Jones, J.W. Aglee, and the Johnson Harvester Company, and obtained a temporary injunction restraining the sale of the said lands, etc.

Upon the trial of said cause the court rendered a final decree that the said William H. J ones convey said land to the plaintiff, or in default of such conveyanee, the said decree stand as a conveyance thereof, fully discharged of all liens by or on account of said judgments, and that the said injunction be made perpetual, etc.

From said decree the said Johnson Harvester Company and J. W. Aglee appealed to this court.

William H. Jones, in entering the land, acted merely as the messenger of George-J. Jones, and he evidently intended that the patent should issue to the latter, which it would have done had not the parties through ignorance of such matters failed to forward the assigned certificate to the general land office. The assigned certificate, though not recorded, was sufficient to convey title — the naked and dry legal title of William H. Jones — to George J. Jones, the equitable owner. All that its recording could have supplied would have been constructive notice to the Johnson Harvester Company. The actual occupancy and cultivation of said lands by the said George J. Jones from 1869 to 1875, and by Mary E. Jones by her tenants after that time, was sufficient constructive notice of the unrecorded conveyance from William H. Jones.

There is no conflicting testimony, and we think the decree clearly right, and it must be affirmed.

Decree aeeirmed.