33 Kan. 49 | Kan. | 1885
The opinion of the court was delivered by
This was an action in equity, brought by Francis Tatro against Daniel E. French and others, asking for a judgment declaring that the defendant, French, held the legal title to a certain piece of land in trust for the plaintiff, Tatro, and that such title should be conveyed to the plaintiff. The case was tried before the court without a jury, and after the plaintiff had introduced all his evidence and rested, the defendants demurred to the evidence, upon the ground that it did not prove any cause of action in favor of the plaintiff and against the defendants. The court sustained the demurrer; whereupon the plaintiff moved for a new trial, which motion was overruled, and then the court rendered judgment in favor of the defendants and against the plaintiff for costs. The plaintiff, as plaintiff in error, now brings the case to this court, and alleges that the court below committed “error in sustaining the demurrer to the evidence and error in receiving evidence.” The only substantial question, however, in the case is, whether the court below committed error in sustaining the demurrer to the evidence. Both Tatro and French claim the land, by virtue of a settlement upon the same under the preemption laws of the United States. Each contested the other’s right to preempt before the United States local land officers at Concordia, Kansas, before the commissioner of the general land office at "Washington, D. C., and before the secretary of the interior, until finally the patent for the land was issued by the government to French; when Tatro commenced this action against French and others to procure the title as aforesaid.
The pi’incipal facts of the case appear to be substantially as follows: On December 16, 1874, the land in controversy was government land, subject to entry under the preemption and homestead laws of the United States; and, for reasons
The judgment of the court below will be affirmed.