58 F. 297 | 8th Cir. | 1893
after stating the case as above, delivered ihe opinion of the court.
The record before us discloses that the case at bar, in all of its essential features of pleading- and evidence, is like ihe case of Railway Co. v. Sage, (8th Circuit,) 4 U. S. App. 160, 1 C. C. A. 256, 49 Fed. Rep. 315, which was recently decided by this court. The lands now in controversy lie within the appellant’s granted limits, as defined by the act of July 4, I860, and also within the indemnity limits of ihe appellee railway company. They aggregate something over 47,-000 acres, are of the alleged value of |240,000, and appear to be distributed along the line of the appellant’s road from range 29 W. to and including range 42 W.
It is shown by the testimony that a portion of the lands which are claimed by the appellant were certified to ihe state of Minnesota by the general government, as lands which of right belonged to the Winona Company, and that they were conveyed by the state to the latter company nearly 18 years before the present bill was filed, and that tbe residue of said lands were so certified and conveyed to it more than 14 years before the commencement of the present proceedings. In ihe mean time, — that is to say, from the years 1868 and 1872, respectively, when the lands were deeded to the Winona Company, — that company has openly dealt with them
Moreover, the present record shows that through lapse of time the Winona Company has lost certain documentary evidence which would probably have rendered its title unassailable to all of the lands now in dispute that lay in and east of range 38, if this suit had been more seasonably brought. It appears that a letter was written by the commissioner of the general land office on July 10, 1885, directing the register and receiver of the land office at St. Peter, Minn., to withhold from pre-emption, homestead, and private entry certain odd-numbered. sections lying within the indemnity limits of the Winona Company. The original letter directing such a withdrawal in favor of the Winona Company has been lost, and on the trial below the appellees were compelled to produce what purported to be a copy of said letter, which was in fact a copy of a copy of the original letter, the original having been recorded in the office of the commissioner of the general land office. The copy, upon which the appellees are compelled at this time to rely, contains an order made on July 10, 1865, for the withdrawal of all odd-numbered sections within the 10 and 20 mile limits of the Winona Company, (the same being its indemnity limits,) “to the west line of township twenty-eight west.” As there is no such township" in the state of Minnesota as “number twenty-eight west,” it is claimed by the appellant that the order of withdrawal was void for uncertainty, and that the subsequent grant to the Hastings Company, of July 4, 1866, took effect, even within the limits intended to be embraced by the order of withdrawal, no matter what such intended limits may have been. On the other hand, it is urged by the appellees that on July 10, 1865, all odd-numbered sections with'in the indemnity limits of the Winona Company were withdrawn for its benefit, to the west line of range 38 W.; that the original
In view of what has already been said, and without stating the facts more in detail, we are of the opinion that the plea of laches is fully sustained by the state of facts disclosed by the present record, for reasons that were stated at considerable length in the former case of Railway Co. v. Sage, supra, and which we need not now repeat.
But it is urged in opposition to this view, by the appellant’s counsel, that the bill shows that the grant to the Hastings Company under the act of July 4, 1866, was a grant in praesenti.; that by filing its map of definite location on June 26, 1867, it became vested with the title to all of the free odd-numbered sections within 10 miles of its road; and that upon the completion of its road such title became absolute and took effect by -relation as of date June 26, 1867, without the necessity of any further conveyance from the general government or the state of Minnesota. In view of these several prepositions, it is further claimed that it was unnecessary for the Hastings Company to pray, as it did, for a decree divesting the Winona Company of the legal title to the lands in dispute, and vesting the same in the complainant company; that the legal title was at the time, and is now, well vested in the complainant’; that the relief demanded in the bill was originally misconceived, and was unnecessary; and that notwithstanding the prayer for specific relief, and the allegation that the legal title is held in trust for the complainant, the court should now retain and treat the bill as one filed by the owner of the legal and equitable title to remove a cloud therefrom; and it is further insisted that in such an action neither the plea of laches nor limitations is available to the appellees as a defense. We shall not pause to discuss the quest ion whether, at the time of the filing of the bill, the Hastings Company was in fact vested with the legal and equitable title to the lands, as is now claimed, or whether it misconceived the relief to which it was then
But, while conceding to the holder of the legal and equitable title who is out of possession the right to maintain a bill to remove a : cloud from the title, we are not able to concede that in such cases-.the defendant is disabled from pleading either laches or limitations. It is manifest, we think, that the latter doctrine can only be invoked by a complainant in a bill to remove a cloud upon his title when he is in possession, and the adjudged cases show that the doctrine has only been applied under those circumstances. Schoener w Lissauer, 107 N. Y. 111, 13 N. E. Rep. 741; Miner v. Beekman, 50 N. Y. 337, 343.
There are obvious reasons why the holder of the legal and equitable title to lands, who is in possession of the same, should not be confronted with the plea of laches when he files a bill to cancel some void or invalid conveyance which operates as a cloud upon his title. Possession of the premises by the true owner is good and sufficient notice to the world of his rights therein, by reason of which third parties need not be prejudiced by any dealings they may have with the holder of the invalid conveyance, while the existence of the cloud is a continuing injury like a public nuisance. Under such circumstances, no harm can result in holding that no period of delay on the part of the owner in asserting his right to have 1he cloud removed will bar him of his remedy. But the case is far different when the person filing such a bill is out of possession and the person proceeded against is in possession, or, if not in actual possession, is the holder of a record title that is without any apparent flaw or defect. In such cases the doctrine that neither laches nor limitations can be invoked as a defense to a bill filed to remove a cloud upon a title has no just application, and, if tolerated, would frequently lead to gross injustice. It will accordingly be found that in the state of Minnesota, where the rule prevails that a person out of possession may maintain such an action, and the fact that he is out
We are accordingly of the opinion that the ground upon which the learned counsel for the appellant have attempted (o evade the plea of laches interposed by the Winona Company, is untenable, and, so holding, the decree of the circuit court must be in all things affirmed