8 Kan. 586 | Kan. | 1871
The opinion of the court was delivered by
The practice of amending pleadings by interlineation is very reprehensible; but where the party has answered after such an amendment he cannot be heard on that point when asking a reversal. It is the duty of each court to preserve its records, and prevent their mutilation; but it would be a burlesque on the administration of justice if after a protracted trial of an important case the judgment should be reversed for a cause that in nowise affected the rights or interests of the party complaining.
This action was instituted to recover the possession of certain lands forming part of what was once the Delaware Diminished Beserve, and also for rents of said lands and for timber taken off the same. The case was tried by the court which made numerous findings of fact, and gave judgment for the plaintiffs. Erom that judgment the defendants appeal to this court. Plaintiffs and defendant Simpson claimed to derive title from and by virtue of the provisions of the treaty with the Delaware Indians made July 4th, 1866, and ratified on the 26th of said month. The plaintiffs’ title was a patent from the United States to the land dated October 26 1867 to A. Caldwell the assignee of the Missouri Eiver Bailroad Company, and a deed from Caldwell and wife to plaintiffs dated December 26, 1867. Thus the plaintiffs showed a perfect paper title in themselves, and which alone would entitle them to recover. The defendant (plaintiff in error) as a defense presented in evidence certain facts and papers which it is claimed were of themselves sufficient to establish his right to the land and prevent a recovery. The defendant read in evidence a deed from the Missouri Eiver Bailroad Company by L. T. Smith, president, to Samuel N. Simpson, dated Eeb’y 21, 1867, to the land in controversy, which deed used the following terms of conveyance: “ do hereby convey, remise, release, and forever quit-claim to the said
So much of the findings of fact as made by the court are "presented, that the views of this court may be more readily understood. The findings are very voluminous, and so far supported by the evidence that according to well-established principles we cannot in this court say that they are wrong. The .evidence does not show the parties concerned in the original transaction out of which this suit has grown in the most favorable light. If one party attempted to obtain a title to valuable property by obstructing the legitimate action of others, the other party removes that obstruction by stipxilations which they hasten to make valueless as far as in their power. These remarks are made in response to the comments of the eminent counsel on either side, who not only claimed the land by virtue of legal rights, but by appeals to “ conscience and a sense of justice.” This court happily has no power to enforce its own ideas of right and justice, in this or any other case. Such power would
The law holds the deed of the 21st of February 1867 purporting to convey the land in controversy to Simpson by the Missouri River Railroad Company to be inoperative as a conveyance, because the parties pretending to act for the company had no authority to make such a conveyance, and their acts in the premises were never ratified by the company; and therefore the deed, as a conveyance, did not bind the railroad company. The deed of 21st of February, executed by Smith, purported to be done by the railroad company by him as president. By the contract of the same date, Caldwell, over his signature, recited that the railroad company had made such a deed. There is nothing appearing in the testimony showing that Simpson had any knowledge that Smith was acting without full authority from the company. It is claimed that because of Caldwell having so made such statement in the contract, that neither he nor those claiming under him can now be heard to say that Smith had no authority from the company to make the deed. The defendants in error took their title with a full knowledge of Simpson’s claim, and of the grounds on which it rested; therefore they are in no better condition than Caldwell himself would be, had the title remained in him. Would Caldwell have been estopped from denying that Smith had authority from the railroad company to make the deed to Simpson, which he made on the 21st of February 1867? If good faith would not permit Caldwell to deny what he had solemnly asserted under his hand, and on the faith of which Simpson had acted, then the fact that Smith had no authority from the company to make the deed is of no importance, for it is a fact that neither Caldwell nor those holding under him can be allowed to prove. It is merely saying that a man shall not show the truth as to a certain fact, as to do so would be a
"We then proceed in the examination as though the deed from the railroad company was made upon sufficient authority from the company to Smith. To clear the case from obscurity we may assume that the title of the plaintiffs was also under the railroad company, though this is a point not free from great doubt; but it places the plaintiff in error in the most favorable attitude, and Ms claim in a position more advantageous than is perhaps strictly its due. "While Caldwell and those holding under him are estopped from denying that Smith had authority' to make the conveyance that he did, it is not an estoppel that created an estate, or runs with land. It grows out of the recitals in the bond signed by Caldwell, and because it was the act of Caldwell, and not out of the deed of Smith as president of the road. The deed itself is not of a character that works an estoppel against a subsequently-acquired title by the grantors. The deed itself is at most a quit-claim deed. The terms used are “ convey, remise, release, and forever quit-claim.” Such a conveyance does not prevent the grantor from acquiring subsequently a perfect title to the land, and will not estop him from asserting such subsequently-acquired title against the grantee. Bell v. Twilight, 6 Foster, 401; McCracken v. Wright, 14 Johns., 193; Woodman v. Hubble, 9 Cowen, 613; Comstock v. Smith, 13 Pickering, 116; Miller v. Ewing, 6 Cushing, 34. The true principle is thus stated: “The general doctrine prevailing in the United States is that no estate can be passed by the ordinary terms of a deed unaccompanied with covenants of warranty which is not vested in interest at the time; and that estates subsequently acquired, whether by purchase or descent, are unaffected by such previous conveyance in the hands of the grantor, or those claiming under him. This general doctrine is, however, subject to, this qualification: that where it distinctly appears from the face of the instrument without the covenant of warranty, either by recital or otherwise, that the intent of the parties was to convey and receive, reciprocally, a certain estate, the grantor will be estopped from denying the
The question then arises, what effect had the conveyance at the time it was made? In other words, had the railroad company such an interest in the land as that they could make a binding and legal contract in relation to it? The company certainly had not any legal title to the land. Neither had it any possessory right whatever. There was nothing like the right that attaches to the possession of a man who settles on the public lands open to settlement. Before such a man lias paid for his land, or proved up his settlement, he has a clear right of possession; he is on the land in conformity with law. If he sell his possessory right, and give up his improvements, the sale has usually beeú held a sufficient consideration to uphold a contract for the purchase money. But if the sale was by deed, the deed conveyed no interest in the land. Nor is this the case of a man who has entered land, paid the government for it, received a certificate of purchase, and waits the action of the proper departments of the government for his patent, for such person has an equitable title which, if there be no error, will ripen without any action of his into a perfect legal title. ITis possession is lawful, and his right to the land absolute, though his legal title may not be perfect. This case is also clearly distinguishable from those cases where claims of title are pending before boards of commissioners, and are ultimately confirmed, as in Landes v. Brant, 10 Howard, 348. In such cases the decision confirms a preexisting right, and the decision is carried into effect by a patent evidencing the preexisting right; and intermediate conveyances are upheld on the ground probably (although in some cases other reasons are
In this ease when the. deed was made the railroad company had neither the legal title nor the possessory right to a foot of the land sold. It could not have gone onto it without being trespassers. So far as the court can know it might never have obtained a right to any of the land, even had the government observed all the provisions of the treaty and the stipulations of the contract between the company and itself; for it was possible that the land would all be absorbed by the Indians who might elect to hold in severalty, as authorized by the treaty— not the tract in controversy only, but all the land in the reserve. A mere possibility is not the subject of a deed unless it be coupled with an interest: Jackson v. Catlin, 2 Johns., 258; Fairbanks v. Williamson, 7 Maine, 96. There was in this instance a possibility, one which has developed into a very substantial entity. It is difficult to determine whether it was coupled with a subsisting interest. We are inclined to think it was not. It was one of those speculative chances that may result in splendid realities, or prove barren in its consequences. If such was its character the land was not then the subject of contract at all between the parties, that is, of a legal, binding contract, capable of being enforced. It is true that the company had accepted the terms of the treaty as offered it by the Secre
This conclusion on the main question in controversy also settles many of the exceptions made on the taking of the evidence. The paper mentioned in the 18th finding of fact has nothing to do with this case. It was made in May, and it is claimed that thereby the plaintiffs released their interest in the land, when the title to the land did not accrue till December afterward. To claim that this was a release of the land title so obtained is absurd. This settles quite a number of objections as to the admission of testimony.
The petition was for the recovery of land for rents and profits, and for timber cut and carried off from it. It is insisted that
Another objection is, that the court found the rental value of the land up to the time of the judgment. We do not so read the finding. It is to be presumed that the finding of a court is confined to the issues in the case, and this presumption will hold unless the contrary clearly appears. When the court finds the rental value from the time when the plaintiffs’ title was perfected, at a certain sum, it is a fair presumption, and not inconsistent with the language used, that it was from that time till the suit was brought. To construe it as running up to the time of the judgment is to infer that the court erred, without a certain ascertainment of that fact from the record.
We have examined the whole record, and expressed our views upon a few of the errors alleged, and have found no sufficient cause for setting aside the judgment. It is affirmed.
