95 Minn. 188 | Minn. | 1905
An action to determine adverse claims to certain real property, in which, after trial before the court below without a jury, defendant had judgment, and plaintiff appealed from an order denying his motion for a new trial.
The facts are as follows: The land in controversy was patented to plaintiff under and pursuant to the provisions of the treaty of February 22, 1855 (10 St. 1165), between the United States government and the Mississippi band of the Chippewa Indians. At the time of the ratification of that treaty plaintiff was, by authority of law, residing in the territory thereby ceded, and became entitled to enter one hundred sixty acres of the ceded land at the price of $1.25 per acre.
On or about April 1, 1872, plaintiff executed and delivered to Thomas B. Walker a power of attorney authorizing him (said Wallc•er), for and on behalf of plaintiff, to sell and convey any land which plaintiff then owned, or might thereafter acquire or become seised of, or in which he might then or thereafter be in any way interested. The court found that this power was executed in view of plaintiff’s right to enter certain land under the terms of the treaty aforesaid, in anticipation that he would do so, and in pursuance of a contract between plaintiff and Walker by which Walker obligated himself to pay plaintiff the sum of $150 for his interest in the land. On June 26, 1872, plaintiff made application at the proper United States land office to locate this particular tract of land 'under the terms of the treaty, which application was in all things regular and in conformity to law, and was duly accepted and approved by the register and receiver. On June 28, 1872, two days after the above application was filed at the local land office, Walker, acting under the authority conferred by the power o'f attorney, sold and conveyed the land so located, with other land, to Levi Butler; and the title thus transferred and vested was subsequently acquired by defendant in this action, under and through which he now claims to own the land.
The assignments of error in this court present for consideration two principal questions: (1) Whether the findings of fact are sustained by the evidence — particularly the finding that plaintiff executed the power of attorney; and (2) whether plaintiff, by his application to enter the land, acquired, in the absence of payment of the purchase price at the time the application was made, any right, title, or interest in the land, which passed by the deed from Walker to Butler.
1. Our examination of the record leads to the conclusion that the findings of the trial court in the respect stated and in all other particulars are amply sustained by the evidence. It would serve no useful purpose as a precedent to enter into a discussion of the evidence, and we refrain. We have carefully examined it, and the result stated is the only reasonable one the facts and circumstances disclosed warrant.
2. The question whether plaintiff acquired any right or interest in the land by his application to enter the same — such application not being accompanied by payment of the purchase price^-miust be determined from the construction of article 6 of the^ treaty under which the entry was made, which is as follows:
It was held by this court in Gilbert v. McDonald, 94 Minn. 289, 102 N. W. 712, that a soldier’s additional homestead entry vests in the entryman an equitable title to the land entered, which might be transferred and assigned, before final proof or patent was issued, and that when the patent was subsequently issued it related back to the date of entry. The same principle was laid down in Webster v. Luther, 163 U. S. 331, 16 Sup. Ct. 963. And even in cases of homestead or pre-emption entry the Supreme Court of the United States
In Shepley v. Cowan, 91 U. S. 330, 338, speaking of rights acquired by a pre-emptor or homesteader, the court said: “In those cases the court only decided that a party, by mere settlement upon the public lands with the intention to obtain a title to the same under the preemption laws, did not thereby acquire such a vested interest in the premises as to deprive Congress of the power to dispose of the property; * * * but whilst, according to these decisions, no vested right as against the United States is acquired until all the prerequisites for the acquisition of the title have been complied with, parties may, as against each other, acquire a right to be preferred in the purchase or other acquisition of the land, when the United States have determined to sell or donate the property. In all such cases the first in time in the commencement of proceedings for the acquisition of the title, when the same are regularly followed up, is deemed to be the first in right.”
The doctrine in that case was followed and applied in Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. 350, where the court said: “And as to mere settlement with the intention of obtaining title under the pre-emption laws, while it has been held that no vested right in the land as against the United States is acquired until all the prerequisites for the acquisition of the title have been complied with, yet rights in parties as against each other were fully recognized as existing, based upon priority in the initiatory steps, when followed up to a patent. ‘The patent which is afterwards issued relates back to the date of the initiatory act, and cuts off all intervening claimants/ ”
In French v. Spencer, 21 How. 228, it appeared that the government had authorized the issuance of land warrants to Canadian volunteers in the War of 1812, and that certain land was located by one holding such a warrant, who a few days thereafter sold and conveyed the same to a third person. It was held that the com^ance was sufficient to pass the interest of the locator under the land warrant, and
In Done Tree v. Cyclone, 15 S. Dak. 519, 91 N. W. 352, riparian rights of a pre-emptor were involved, prior to the. issuance of a patent; and it was held that the rights of the entuman attached from the date of his settlement upon the land, and not from the date of his final proof. See also Beley v. Naphtaly, 169 U. S. 353, 18 Sup. Ct. 354; McAlpine v. Resch, 82 Minn. 523, 528, 85 N. W. 545. In Thredgill v. Pintard, 12 How. 24, the court recognized the right of a person in possession of public land under a pre-emption claim to convey such right to another.
In view of the principle established by these cases — particularly the case of Gilbert v. McDonald, supra—and in view also of the provisions of the treaty under which the land in question was acquired, it must be held that plaintiff acquired an equitable title to the land at the time of his application, which passed by the Walker deed. The case is even stronger than those arising under the homestead or preemption laws, for here the treaty contains no provision against a sale or transfer, prior to the issuance of the patent, of the land located thereunder. The rights granted by the treaty were in their nature contractual, and, upon a selection and location of land thereunder, the interests of the party locating became definitely fixed; vesting in him an estate which he could convey before payment of the purchase price or issuance of the patent. Of course, if, in any case, payment of the purchase price should not be subsequently made, the location would lapse and become ineffectual for any purpose; but if made, and patent subsequently issues, the doctrine of relation applies, and title in the patentee is vested as of the date of his application. Shepley v. Cowan, supra; McCreery v. Haskell, 119 U. S. 327, 330, 7 Sup. Ct. 176.
Order affirmed.