No. 1,395 | Cal. | Jan 15, 1872
Concurrence Opinion
The Court did not find the time of the filing with the Register of the Marysville Land Office of the plat of the survey
Poppe insists that the indorsement on the plat was not given in evidence; but, as he has not appealed, he is not in a position to allege that the Court erred in reciting the indorsement in the finding.
The purpose of the suit brought by Athearn against Poppe is, to compel Poppe to convey to Athearn the legal title to the premises in controversy, on the alleged ground of fraud on the part of Poppe in perfecting his preemption claim, and, in pursuance thereof, in procuring a patent from the United States. A conclusive answer to the position of Athearn is, that he claims not as a preemptioner, but as a purchaser from the State; and as such he is not entitled to a patent from the General Government, and, therefore, cannot
The questions discussed at the last argument were whether the surrender of the land warrant and the issuing of the Register’s certificate were authorized by any law then in force, and whether a location so made authorized the issuing of a patent. The Commissioner of the General Land Office has authority to make regulations respecting the disposal of the public lands, and such regulations, when not repugnant to the Acts of Congress, have the force and effect of laws. In the letter of the Commissioner of the 14th of February, 1854, addressed to the Register of the Land Office at Benicia, he refused to return the warrant to the person who had located it on a tract of land, and directed the Register in such case to issue to the person locating a warrant, a certificate of location. The Commissioner prescribed the form of the certificate, and that form was adopted in this instance, and generally in all other cases of the location of warrants since that time.
Those instructions recognize the surrender of the warrants as the correct practice, and make the certificates issued thereupon by the Register legal and valid. Those certificates of location become the basis of the patents issued by the State. Leaving out of view the question whether the patent should issue before the lands have been listed to the State by the Land Department—as the question has not been discussed in this case—there seems to be no valid ground for saying that the Register’s certificate is not sufficient to authorize the proper officers of the State Government to take the requisite steps for the issuing of the patent. The provisions . of the Act of May 3d, 1852, for the survey of the lands by the County Surveyor, and all the proceedings founded on such survey, are applicable only to unsurveyed lands. The observance of those provisions would be useless and vain where the lands have been surveyed by the United States.
Concurrence Opinion
I concur in the judgment on the grounds stated in the opinion which I have heretofore delivered in this case.
Mr. Justice Wallace being - disqualified, did not sit in these cases.
[The opinion to which Mr. Justice Crockett refers in his concurring opinion was filed at the April Term, 1868, and was concurred in by Sawyer, C. J., Sanderson, J., Rhodes, J., and Sprague, J. The Court afterwards granted a rehearing, and the foregoing opinion was delivered after reargument. The following is the opinion delivered at the April Term, 1868, and to which reference is made as containing the facts of the case. The first three head notes cover the points on which both opinions agree. After a rehearing the first opinion is understood to be no longer the opinion of the Court, unless it is adopted in the subsequent opinion.— Reporter.]
The respondent, Poppe, brought ejectment against the appellant Athearn to recover a tract of land in San Joaquin County, in which action an answer was filed denying title in the plaintiff, and setting up title in fee in the defendant. During the pendency of this action the defendant filed his bill in equity against the plaintiff, setting forth in substance that the land in contest, which is the southeast quarter of section eleven, township four north, range eight east, was, in the year 1850, in the actual and exclusive occupation of
The answer denies the possession of Elliott and Loring, the deraignment of title from them to appellant, the issuing of the school land warrant and the location thereof by Vance; it also denied that the respondent ever occupied the land as the tenant of Elliott and Loring, or that the township plat was filed in the Land Office on the 5th December, 1855, or at any time earlier than March 1st, 1856. Li short, it denies every material averment of the complaint, and sets up, as affirmative matter, that he settled upon the land as a preemptor and was entitled by law to preempt it, and, after complying with the requirements of the law in that respect, obtained his patent therefor; that appellant contested his rights before the Land Department, and that all questions of fact in regard to the settlement, residence, and bona fides of the respondent were heard and decided by the proper officers of the United States; after which hearing the land was awarded to the respondent; and thereafter the appellant, by peij ury and fraud, procured a patent to be issued to him by the State of California.
The two actions were heard together before the Court without a jury.
In its findings the Court finds that there was no fraud on the part of Poppe in obtaining his patent, and also the following facts:
*613 First—That in August, 1851, Poppe settled upon the quarter section in controversy, which was then unsurveyed public land of the United States, and has ever since been in the exclusive possession of about forty-seven acres thereof.
Second—That said land was surveyed by the United States in the Summer of 1855, and the township plat was duly filed in the proper Land Office; that, after the filing of the plat, the Register and Receiver, on the 15th of February, 1856, gave notice through the public press (being the first notice given in the premises), requiring preemptioners to appear and file their preemption claims on or before the 15th of May, 1856, and that Poppe filed his notice on the 16th of April, 1856.
Third—That the only evidence produced as to the date at which the township plat was filed in the Land Office was an indorsement on the plat itself of the words: “Filed in Marysville Land Office, December 5th, 1856,” which indorsement was not signed by any one, and there was no evidence to show when, or by whom, or by whose authority the indorsement was made; that Athearn was in possession of all the quarter section, except the forty-seven acres in possession of Poppe.
Fourth—That prior to the Government survey, to wit, in December, 1852, Vance being then in possession of one hundred and thirteen acres of the tract, located a school land warrant on that quarter section; and after the survey, to wit, March 10th, 1856, applied to the United States Register for permission to locate it on the same quarter section, and surrendered the warrant to be canceled; whereupon the Register approved the location, and issued his certificate to that effect; after which Vance assigned the certificate to Athearn, who afterward, to wit, on the 8th of January, 1862, obtained a patent from the State.
Fifth—That Athearn and Poppe, pending the proceedings before the United States Land Department, both appeared*614 and litigated their rights, and after the decision in favor of Poppe, a patent was issued to him in October, 1863.
Sixth—That for a long time prior to and ever since the date of the patent to Poppe, Athearn was in the actual possession of the one hundred and thirteen acres, claiming title in himself; and the Court finds the value of the rents and improvements.
As a conclusion of law, the Court finds that Poppe is entitled to judgment for the possession, and for the value of the rents, and judgment was entered accordingly.
The appellant moved to correct the findings, and submitted to the Court a series of findings, which, in the main, were not only different from, but, in some respects, contradictory to the findings of the Court. The Court refused to change or modify its findings, and the appellant excepted.
A motion for new trial was made by appellant, which was denied by the Court, and the case comes here on appeal from the judgment as well as from the order denying the motion for new trial.
The first point to be considered is, whether or not Athearn can appeal to a Court of equity, upon the facts stated in his complaint, to revise the decision of the Secretary of the Interior in respect to the preliminary steps which were necessary to be performed by Poppe to entitle him to a patent on his application for a preemption.
In cases of fraud there can be no doubt that a Court of equity will give relief, hot only when the officers of the Government have been parties to the fraud, but also when they have been made the innocent instruments of perpetrating a wrong by means of the fraudulent practices of others. Hence it has been held that when the United States Register and Receiver have been imposed upon by false affidavits or perjured witnesses, whereby the land has been awarded and patented to the wrong person, the Courts will interfere and redress the wrong. Otherwise there could be no relief in
Even in actions at law, where there are conflicting patents for the same land, the Court will go behind the patents to ascertain which party had the prior equity; and if the junior patent is founded on the prior equity, it will take effect by relation from the time when the equity accrued, and override an older patent founded on a junior equity. (Ross v. Barland, 1 Pet. 655" court="SCOTUS" date_filed="1828-03-17" href="https://app.midpage.ai/document/ross-v-doe-on-the-demise-of-barland-85610?utm_source=webapp" opinion_id="85610">1 Pet. 655; Bagnall v. Broderick, 13 Pet. 436" court="SCOTUS" date_filed="1839-03-18" href="https://app.midpage.ai/document/bagnell-v-broderick-86108?utm_source=webapp" opinion_id="86108">13 Pet. 436; Smith v. Athearn, 34 Cal. 506" court="Cal." date_filed="1868-07-01" href="https://app.midpage.ai/document/smith-v-athern-5436572?utm_source=webapp" opinion_id="5436572">34 Cal. 506.)
In the case under consideration, Athearn had the oldest patent, founded on his school land warrant, which was located on the 10th of March, 1856, after the lands had been duly surveyed. In the action of ejectment, without the aid of a hill in equity, the production of his patent and proof of the location of the warrant, after the survey, would have established a prima facie case as against Poppe’s junior patent, standing alone, and without proof of the preliminary acts on which the patent was founded.
This rendered it necessary for Poppe to support his patent by proof of the preliminary steps, in order to show that, before the location of the school land warrant, he had acquired an equity in the land which exempted it from location under the school land warrant.
It was, therefore, competent and proper for the Court to hear proof on that subject, in order to ascertain which party had the prior equity. To establish Poppe’s prior equity, it was incumbent on him to show at what date he
In respect to the time at which Poppe performed the first act, the Court finds that he “ settled upon ” the land in August, 1851, and from that time up to the trial had been in the exclusive possession of forty-seven acres of the tract. It does not find that he ever resided on the tract, unless that is to be inferred from the term “ settled upon,” nor does it find that he erected a dwelling house, or other improvements, or ever cultivated any portions of the premises.
The incipient steps toward a valid preemption claim are that the party shall “ cultivate and improve the same,” and “ shall erect a dwelling thereon.” This is expressly required by the tenth section of the Act of Congress of September 4th, 1841. Without a performance of these acts there can be no valid foundation of a preemption claim.
But although the findings are silent on these points, the “Act to regulate appeals in this State,” approved May 20th, 1861 (Stats. 1861, p. 589), which was in force when this case was tried, provides that “in cases tried by the Court, without a jury, no judgment shall be reversed for want of a finding, or for a defective finding of the facts, unless exceptions be made in the Court below to the finding or the want of a finding;” and the statute points out how defective findings may be remedied.
In construing this statute we have repeatedly held that where the findings are silent as to material facts necessary to support the judgment, and no effort is made to correct them, we will presume in aid of 'the judgment that the
It follows that if Athearn intended to controvert the fact that Poppe had resided upon the land, and erected a dwelling thereon, prior to the time when Vance’s equity accrued, and if he believed that these facts were not proved on the trial, he should have moved to correct the findings in that respect; and if the Court refused to find at all on the point, or found contrary to the evidence, the statute points out the remedy.
But as the case is now presented, we must assume, in support of the judgment, that these essential facts were proved, inasmuch as Athearn did not except to the findings in this particular.
In this view of the case it would be our duty to affirm the judgment, if no error had occurred in denying the motion for new trial.
But the Court finds facts sufficient to show that the township plat was filed in the office of the Register and Receiver on the 5th of December, 1855; and it finds as a further fact that the Register and Receiver, “ on the 15th of February, 1856, gave notice through the public press,” for the first time, that all persons claiming preemption rights upon any of the lands in that township should appear and file their notice of preemption on or before the 15th of May, 1856.
One of the grounds for new trial was that the Court failed to find it as a fact that the township plat was filed in the office of the Register and Receiver on the 5th December, 1855, and that there was no evidence to "support the finding that the Register and Receiver published the notice on the 15th February, 1856, as set forth in the finding.
It was, therefore, a most material fact to ascertain whether or not Poppe’s notice was filed within the proper time; and in order to do this, it is necessary to ascertain with certainty when the township plat was filed, and when the notice to preemptioners was published—if any such notice was published; of which fact, however, there is no proof in the record.
For the reasons stated above the Court below ought to have granted the motion for a new trial.
The counsel for the respondent has pressed upon our consideration, with much earnestness, the proposition that both the appellant, and the respondent having appeared before the United States Land Department, and litigated their respective rights, the appellant is estopped thereby from requiring further proof that the respondent has the prior equity to the land.
Judgment and order denying a new trial reversed, and cause remanded for a new trial.