25 Mont. 14 | Mont. | 1901
after stating the case, delivered the opinion of the Court.
1. The brief of appellants was filed while the rules of this Court promulgated in 1896 were still in force. Five errors are assigned therein. Three of these assignments are predicated upon rulings upon the admission and rejection of certain evidence. The first and second of them we cannot consider, for
2. At the trial, plaintiffs rested the case upon the Murray patent, the conveyance from Murray to his co-plaintiff, and evidence of the rental value of the property during its occupation by defendant subsequent to the date of the patent. Thereupon defendant offered evidence of the other facts set forth in the statement. Objection was interposed to all of it on the ground that it was incompetent,» immaterial and irrelevant. When defendant rested, plaintiffs moved the court to strike it all from' the record on the same grounds as those stated in the objection. The specific objection urged was that there was an absence of other evidence showing that an adverse claim or suit had been instituted by Noyes and wife, or defendant, against Murray’s application for a patent; that at the time Murray entered the Railroad claim he had actual notice of the condition of the title to the Placer claim, and that the Home Investment & Realty Company took its interest with notice; and, therefore, that the facts shown by defendant tended in no way to establish a trust in plaintiffs in its favor. Error is assigned upon the action of the court in overruling the objection and motion.
The objection to this evidence goes to its sufficiency, rather
The evidence sought to be excluded by the objection was clearly admissible as tending to show that the defendant was entitled to the relief demanded. That it fell short (if sudi were the fact) of establishing all the facts necessary to justify the trial court in granting this relief is no reason why it should have been excluded in the first place, or stricken from the record
It was not necessary for the defendant to show that Noyes and wife, or defendant, had prosecuted successfully adverse proceedings against Murray’s application for patent. Noyes and wife had already gone through all the regular proceedings to obtain a patent, and had received a certificate of jourchase. This was evidence that they had complied with all the conditions prescribed by law, and that they had acquired a vested interest in tire land embraced in the Placer claim. The public faith was thus pledged to them, as well as their grantees, and thereafter the officers of the land department had no right to convey to any one else, so long as the certificate was outstanding. (Lindley on Mines, Sec. 771; Wirth v. Branson, 98 U. S. 118, 25 L. Ed. 86.) The lands covered by the certificate immediately upon its issuance became segregated from the mass of public lands, and were not subject to entry by any one else. The right to the patent thus became vested in Noyes and wife, and thereafter the title stood as if the patent had already issued. The mere delay in its issuance did not subject them, or their grantees, to additional burdens, or expose them to assaults of third parties. (Benson Mining & Smelting Go. v. Alta Mining and Smelting Co., 145 U. S. 428, 12 Sup. Ct. 877, 36 L. Ed. 762; Stark v. Starrs, 6 Wall. 402, 18 L. Ed. 925; also authorities last cited.) Neither their rights nor those of the grantees were affected by proceedings in the land department, in which it appears they took no part.
Conceding, for the sake of argument, that, in the absence of
Conceding, again, that the Home Investment & Kealty Company’s title is superior to that of the defendant, in the absence of actual notice of defendant’s equities at the time it took from Murray, it stands in no position ,to complain of the rulings in question. No question was raised here as to the sufficiency of the evidence, or a want of evidence, to sustain the findings, nor that the findings do not support the judgment. So far as. a consideration of this feature of the case is concerned, this plaintiff can obtain no relief. And, even though the evidence objected to should properly have been excluded or stricken out at the instance of this plaintiff, the ruling of the court below was never
Let the judgment and order appealed from be affirmed.
Affirmed.