104 So. 479 | La. | 1925
On November 4, 1919, defendant offered to lease to plaintiff a certain 80-acre tract of land in De Soto parish, all in section 3 of township 12 north, range 11 west, for a certain cash consideration and certain royalties.
One of the conditions was that plaintiff should deposit with defendant $2,187.50. If defendant's titles proved good, said sum was to be applied against the cash consideration, or forfeited, as liquidated damages, if plaintiff failed to pay the balance thereof. If defendant's titles proved defective, said sum was to be returned, and plaintiff was to have not exceeding 30 days in which to examine the titles.
Which offer was accepted by plaintiff, and the deposit duly made.
Which patent declares that the United States gives and grants to said New Orleans Pacific Railway Company the several tracts of land therein described, "excluding and excepting, however, allmineral lands, should any such be found in the tracts aforesaid; but this exclusion and exception, according to the terms of the statute (Act March 3, 1871), shall not be held to include iron and coal." And defendant acquired through mesne conveyances, from said New Orleans Pacific Railway Company.
Be that as it may, the fact remains that about that date, and afterwards, plaintiff's attorney, under instructions from plaintiff, was in communication with defendant's attorney "trying to get the title straightened out, * * * so as to prefect the title, if it could be done."
And, as early as February 25, 1920, plaintiff was informed by defendant that, although no patent had issued to Fortson for lot 3, yet said Fortson had purchased said lot on October 24, 1850, as mentioned above, which was confirmed 3 days later by direct telegram from Washington to plaintiff's abstract company.
As said above, the patent issued September 2, 1920 and as late as September 9, and afterwards, plaintiff was endeavoring to induce defendant to accept certain oil stocks, in lieu of money, for the balance of the cash consideration to be paid on the lease.
It is quite true that, until a patent issued, the legal title
to the land remains nominally in the United States, and the purchaser or entryman acquires only an equitable title; but none the less, the United States holds such land in trust, and intrust only, for the party equitably entitled to the same, who, for all intents and purposes, is the true owner of said land, and may treat and be treated as *633
such. Broussard v. Broussard, 43 La. Ann. 923;1 Simien v. Perrodin, 35 La. Ann. 933; Gay v. Ellis, 33 La. Ann. 249; Pepper v. Dunlap, 9 La. Ann. 137; Robertson v. Wood, 5 La. Ann. 199; Terry v. Hennen, 4 La. Ann. 458; McGill v. McGill, 4 La. Ann. 262; Beaumone v. Covington, 6 Rob. 189; Lott v. Prudhomme, 3 Rob. 293; Lefebvre v. Comeau,
In Laforest v. Downing, 16 La. Ann. 301, this court held that lands sold by the United States were no more the property of the United States than lands patented, quoting Carroll v. Safford, infra.
In Carroll v. Safford, 3 How. 441, 461, 11 L. Ed. 67, the Supreme Court of the United States said:
"Now, lands which have been sold by the United States can in no sense be called the property of the United States. They are no more the property of the United States than lands patented. So far as the rights of thepurchaser are considered, they are protected under thepatent certificate as fully as under the patent. Suppose the officers of the government had sold a tract of land, received the purchase money, and issued a patent certificate, can it be contended that they could sell it again and convey a good title? They could no more do this than they could sell land a second time which had been previously patented. When sold, thegovernment, until the patent shall issue, holds themere legal title for the land in trust for thepurchaser; and any second purchaser would take the land charged with the trust." (Italics ours.)
In Wirth v. Branson,
See, also, Cornelius v. Kessel,
There was therefore no defect in defendant's title to lot 3, either before or since the issuance of the patent.
But in Davis v. Wiebbold,
Hence the reservation in the patent, excluding, and excepting all mineral lands, "should any such be found," is meaningless, since the issuance of the patent carried with it the determination of the proper authorities that the land patented was not subject to the exclusion and exception in the grant, and since this court will take judicial cognizance of the fact that oil and gas were not discovered in paying quantities in this state *635 for at least 10 years after the date of said patent (to wit, August 8, 1889).
There was therefore no defect at any time in defendant's title to lot 4.
As to this, however, the trial judge says:
"During all this time Trumbull had not seen Sample, had not written him complaining that the title was bad, and had not demanded the return of his money. The concern of Trumbull and Snell (his attorney) was that Sample might call off the trade because the title was not accepted within the 30-day period. * * * The evidence shows that the 30-day stipulation was ignored by both parties. Trumbull seemed anxious that the title be fixed up, and Sample equally so. It was fixed up on September 2d, and after that date Trumbull was still endeavoring to acquire the land, even seeking to get Sample to accept stock in a drilling company in lieu of the unpaid balance. It was only after this refusal that Trumbull called the deal off and demanded back his money. In other words, he did not reject the titleuntil same had been perfected." (Italics ours.)
The whole matter may therefore be summed up thus: Plaintiff had 30 days in which to accept or reject the title, and might have been called upon by defendant to do so at the expiration of that time. But defendant did not avail himself of his right to call the deal off; and plaintiff was not desirous of having it called off. The title was apparently defective up until February 28th, and up to that date plaintiff might still have rejected the title and demanded the money back, all in good faith. Even after February 28th, *636 and up to September 2d, plaintiff might still, if captiously inclined, have urged a technical objection to the title and demanded the return of his money.
But after that date, it was too late for plaintiff to reject the title, which was then perfect. For it is to be observed that defendant was not called upon to tender a perfect title within said 30 days, or at any time at all; but, on the contrary, it was plaintiff who was called upon to accept or reject defendant's title, such as it might be, within said 30 days, and defendant being, in respect to the deposit, under no other obligations than to return the same should plaintiff reject the title to the land.
In other words, as says the district judge:
"Trumbull paid $2,187.50 for a 30-day option to purchase (sic, meaning lease) the land involved if the title should be found good. If the title was found bad within that time he was to get his money back."
But the title was not found bad within that time; i.e. it was not rejected and the deal called off by plaintiff, nor did defendant attempt to call it off, by requiring plaintiff to accept or reject title to the land. And thus, in effect, the option was simply extended indefinitely, without objection by either party.
But the right to reject the title ceased when that title was no longer subject to any objection whatsoever, serious or otherwise; and all that then remained to plaintiff was the right to take the lease on paying the balance of the cash consideration, failing in which he had but to forfeit his deposit.
The trial judge found no merit in plaintiff's claim; nor do we.
O'NIELL, C.J., concurs in the decree.