McLane v. Bovee

35 Wis. 27 | Wis. | 1874

Eton, J.

The exemplifications of the records of the general land office, which were admitted as evidence, are sufficient under the act of congress on that subject, which provides that such copies, under the signature of the commissioner and the seal of such office, “ shall be competent evidence in all cases in which the original records, books or papers could be evidence.” Laws of 1812, ch. 68 (2 U. S. Stats, at Large, 716). The authority of congress to prescribe the manner in which government records shall be exemplified or authenticated, will not be doubted. We think the copies were properly received in evidence.

The more important question to be determined relates to the effect of the former verdict and judgment upon the rights of the parties in the present action. In that action the title in fee to the land in controversy was adjudged to be in the defendant Frederick Bovee. This is conclusive as against the present plaintiff. R S., ch. 141, sec. 19 (Tay. Stats., 1469). It has, therefore, become a verity in this case, that at some time before that judgment was rendered, Frederick Bovee was seized in fee of such land.

The plaintiff claims that the title which he seeks to establish in this action is an after-acquired title, which he is not estopped by the former judgment to assert. To determine whether his title is-unaffected thereby, it becomes necessary 'to ascertain the extent of the operation of such judgment.

At the common law the plaintiff in an action of ejectment could only recover on proof of title and right of possession in his lessor at the date of the fictitious demise laid in the declaration. But under our system of practice the fiction of a demise is abolished, and it is now sufficient for the plaintiff in ejectment to show title and right of possession at the time he commenced his action. But he must show that he had such right at that time, or he cannot recover. Hence the general denial only puts in issue the plaintiff’s title and right when the action was commenced, and not at a subsequent time. Such being the issue, it necessarily follows that the judgment is only conclusive of the title of the plaintiff and his right of possession at that time. Yount v. Howell, 14 Cal., 465; Owen v. Fowler, 24 id., 192; Hestres v. Brennan, 37 id., 385. Under the pleadings it would have been error to permit the defendant in the former action, McLane, to give evidence of an after-acquired title; and the court properly rejected the certificate of entry of 1868, offered by him. It was incumbent on him to procure leave of court therefor, and to file a supplemental answer, alleging the cancellation of Moon’s certificate of entry, and the issuing of another to himself pursuant to the act of 1868, before such evidence could be properly admitted. Tyler on Ejectment, 468-71, and cases cited; McMinn v. O' Connor, 27 Gal., 238; Moss v. Shear, 30 id., 467; Reily v. Lancaster, 39 id., 354.

But, while the court bad the power, upon the application of the defendant in the former action, to permit him to interpose such supplemental answer and thus bring into the case for adjudication his title acquired pendente lite,-and while, had he done so, the judgment thereupon would have been conclusive against the parties to that action and those in privity with them, yet we know of no rule of law which requires or authorizes us to hold that, notwithstanding such after-acquired title was not set up or adjudicated in the action, still the present plaintiff is estopped by that judgment to assert such title here.

Had he made application for leave to set up such title as a defense, by supplemental answer, it was within the sound discretion of the court to grant leave, with or without terms, or to refuse it. Tay. Stats., 1447, § 45. It seems to us that nothing short of an absolute and unconditional right to interpose such defense, puis darrein continuance, should be held to estop the plaintiff from asserting it in this action for the first time.

In the light of the above principles the determination of the case is not difficult. At the time Frederick Bovee commenced his action against McLane in 1866, he (Bovee) owned the title to the land in controversy which Moon took by virtue of his purchase and certificate of entry. The jury denominated this a title in fee, but of course it was not a fee simple absolute. Some title or interest remained in the United States. Our statute (Tay. Stats., 1614, § 142) makes such certificates prima facie evidence of title, but does not specify the kind or character of title evidenced thereby. The payment for the land and the certificate of entry doubtless conferred upon Moon, and his assignee or grantee, “ a valid subsisting interest ” in the land, to which the right of possession was incident; and this was sufficient to enable such grantee to maintain ejectment. R. S., ch. 141, sec. 2.

The most that can be successfully claimed for the present defendants, under the judgment in the former action, is, that when such action was instituted, Frederick Bovee was seized of an estate in fee in the lands in question, belonging to a class which Professor Washburn denominates determinable fees, and which he defines to be “fees which are liable to be determined by some act or event expressed on their limitation to circumscribe their continuance, or inferred by law as bounding their extent.” 1 Washb. on Real Property, 62.

That the commissioner of the general land office had authority to cancel the certificate to Moon, for cause, at any time before a patent issued, cannot be doubted. Such powers have been constantly exercised by the land officers of the government, and the exercise thereof sustained by the courts, ever since our land system was established. We here find the limitation on the fee, or its determinable quality inferred by law, mentioned in the above definition. In Trulock v. Taylor, 26 Ark., 54, such titles are termed “inchoate legal titles.”

The title of Frederick Bovee, which was established by the former judgment, was legally determined by the cancellation of Moon’s certificate of entry after the former action was commenced : and the whole title became thereby vested in the United States. The patent to McLane, the present plaintiff, conveyed that title to him, and, as we have seen, he may assert it in this action.

The j udgment of the circuit court must be affirmed.

By the Court. —Judgment affirmed.

The appellant moved for a rehearing, but the motion was denied at the June term, 1874.