235 F. 841 | 5th Cir. | 1916
This case in its pleadings and evidence and in the decree rendered is very similar to the case of United States, Newton B. Terrell, and Elijah W. Terrell v. New Orleans Pacific Railway Company & Gulf Lumber Company, 235 Fed. 833, — C. C. A. — (present term, U. S. C. C. A., 5th Circuit). It is unlike that case in that the intervener in this case, Stephen N. Grant, who commenced to live on part of the land in question in 1886, following a
There is nothing in the record to indicate that at any time prior to the filing of his intervening petition he claimed to be the owner of the land. In the latter part of 1890, more than five years after the issue of the patent, and after the patentee had sold and conveyed its interest, he filed in the local land office an application to enter the land under the homestead law. After that ineffective proceeding ended, he took no further action indicative of the assertion of any claim beyond merely continuing to live on the land until he filed his intervening petition in this case. A tract of something over 30 acres, some of it land not embraced in the 160 acres in question, has been cleared for many years. The improvements, consisting of a “common rough house” of six rooms, and some outhouses, are located on this clearing. On another part of the 160 acres a tract of about 2 acres was cleared and inclosed within a year or two before this suit was brought. Within a year after the intervener moved on the land following his purchase from Killen, he, as stated by himself in his testimony, learned that it was “claimed as railroad land.” The claim that the railroad company and the other successive holders of the record title held that title, not as the beneficial owner of the land, but in trust for the intervener, was, so far as anything in the record discloses, made by him for the first time when he filed his intervening petition in this case. There is no suggestion in the pleadings in the case that the right to the land
Assuming that the circumstances attending the acquisition of the legal title by the patentee were such as to give rise to a trust in favor of the intervener, the resulting right of action accrued not later than April, 1887, when the patentee accepted the provisions of the act of Congress of February 8, 1887. Before the date of such acceptance the patentee had already sold part of the land in dispute, and, as it may be inferred, had appropriated the proceeds of the sale to its own use. The rest of the land was similarly disposed of by the patentee before the end of 1889. The subsequent successive holders of the title conferred by the patent in like manner openly dealt with the land as their own, obviously not admitting that the intervener had any beneficial interest in it or in the proceeds of the successive sales of it. Within a very short time after the trust, if it ever existed, became enforceable, the intervener learned of the facts which he now claims gave him an equitable right of action, and the conduct of the holder of the record title, not concealed, but contemporaneously disclosed by public records, evidenced a distinct repudiation of the alleged trust relation, which entitled the intervener to immediate relief and opened the door to the defense of laches. Patterson v. Hewitt, 195 U. S. 309, 25 Sup. Ct. 35, 49 L. Ed. 214. The intervener took no action then to make known or enforce the. claim now asserted, and allowed more than a quarter of a century to elapse before he presented the claim in a court of equity. During all that time the land, except the two cleared tracts above referred to, remained uninclosed and covered with virgin timber, all of it was openly dealt with as their own by the successive holders of the legal title, and, though the intervener lived on and used a small part of it, the circumstances attending his connection with the land continued to be such as to negative a conclusion that he was setting up a claim that he had acquired the beneficial ownership of the whole or any
It follows from the conclusions above stated that neither of the appellants has a tenable ground of complaint against the decree appealed from.
That decree is affirmed.
MAXEY, District Judge, was prevented by illness from participating in the decision of this case.