10 Or. 21 | Or. | 1881
By the Court,
From the pleadings and evidence, it appears that the defendant and those under whom he claims have been in the open and actual possession of the land in controversy since the year 1855, and that this land was included in the original notification of John Myers under the Donation Act, but
The defendant has no other title to this land than bare occupancy, nor had those under whom he claims. The legal title is in the United States, so far at least as the defendant is concerned, and whatever rights he has, if any, are derived from such occupancy, and the occupancy of those under whom he claims his right to the possession of this particular land. The record of the land office shows this to be unoccupied surveyed public lands, subject to be taken as homestead under the act of congress.
In 1878 the plaintiff, after filing the necessary affidavits and paying the requisite fee, received his certificate therefor, and entered upon the tract of land described in the complaint as a homestead — the east half of which is the land in dispute, and in the actual possession of the defendant — and proceeded to do the necessary acts of residence and cultivation, in order to comply with the terms of the homestead acts, and to perfect his title to the land. But it is clear from the evidence that the defendant was, and now is in the
As applicable to this case, our view is well expressed in Creely v. Bay State Brick Co., 103 Mass., 515, in which the court say: “An objection of this kind should have been made on demurrer, or at least should have been specifically relied upon in the answer, and not raised for the first time at the hearing upon pleadings which suggest no such ground of defense. Under such circumstances, the court could hardly do otherwise than retain the case, provided it is competent to grant relief, and have jurisdiction of the subject
Let us then examine the merits of the respective claims of these parties, ascertain in what they consist, and determine in whom the superior equity resides to, the possession' of these lands. The donation law provides that the time limited in which claimants are- required to give notice of their claims, shall be, and are hereby extended to the first of December, 1855, except where the Surveyor G-eneral shall request them so to do as above provided. John Myers, the original owner of the donation claim, and under whom the defendant claims to have equitable rights to the possession of the land in dispute, did file a corrected notification in the land office in November, 1855, in which he gives notice and a description of his land claim, but which does not include the land in question. But it is insisted that John Myers cultivated and resided upon this land at the same time, and with the same object he cultivated and resided upon the land described in his notification and patent; that he always claimed to own the same as a part and parcel of his donation claim, and that it was omitted to be described and included in his notification, and other title papers, by a mutual mistake of himself and the land officers of the government. There is no evidence to show that the mistake was mutual, or that John Myers made any mistake as to the land he intended to notify upon and occupy as a
There is evidence which indicates that he was aware that this land was not included in his donation claim before patent issued, and yet there is no evidence of any attempt to correct the mistake in the land department, or of any pro^ ceedings for that purpose, or that there was a mistake as alleged. The fact that John Myers had possession of the land and claimed to own it, in the absence of any evidence of a mistake in the description by which the land in dispute was omitted, and in the face of successive acts required to be taken to complete his title, some of which -were under oath, and must have attracted his attention to the correctness of the facts sworn to, and which professed to contain an accurate description of his donation claim and did not include this particular land in controversy, certainly cannot be
The fact that he claimed there was a mistake in not including this land in his description of his donation claim, without any evidence to correct it on his part at the land office, or to show how it occurred, and opposed as it is by the notice which he gave according to the requirements of the donation law, and reinforced by the sanctity of an oath, and all the successive acts at wide intervals, by which he secured and the government confirmed his title by patent, with an allegation in the defense that the matter was now pending before the land department for correction; and without any proof offered on that subject, will require more and better proof to convince us of the existence of such a mistake, than his mere claim that such a mistake was made, although he held possession of such land.
In the absence of proof of such mistake as alleged, he and those who succeeded to his possession, including the defendant, have only such title as is derived from occupancy. Indeed, in the discussion, the facts seem to be conceded to be with the plaintiff, and the main effort was directed to showing that his remedy was at law and not in equity. According to the evidence, this is public land of the United States, subject to be taken under the acts of congress as homestead, and which the plaintiff has taken the necessary preliminary steps to secure as a homestead; but he is prevented by the defendant from taking possession of it, and not having the legal estate he is compelled to resort to a court of equity to put him in possession of his rights, in order that he may proceed to complete his residence and cultivation, and thus secure the legal title to the land. The right of possession of the plaintiff for the purpose of homestead is a
Decree affirmed.