44 Iowa 406 | Iowa | 1876
Lead Opinion
In rebuttal plaintiff called W. C. James, who testified that he supposed the deed to Walker was issued upon a certificate of pre-emption held by Walker at the time, as he made no deeds except on pre-emption, but that he has no independent recollection respecting it. The abstract contains all the testimony, and the material portion of it is set out above.
The land is conceded to be swamp land. By the provisions of the law then in force it was subject to pre-emption, by any one having a bona fide claim, by actual settlement or improve
The presumption is that this certificate recites the truth, and that it was properly issued. Colvin v. McCasky, 9 Iowa, 585. There is nothing in the evidence to rebut the prima facie case made by the certificate of pre-emption. Key, then, pursuant to the provisions of the law, did make and have upon this land a bona fide improvement, and on account of this improvement he did, on the 21st day of November, 1855, procure a certificate of pre-emption. Did this certificate invest him with any rights, or confer upon him any privileges? Section 975 of the Revision provides: “The said certificate shall entitle the holder thereof to perfect his title to the land mentioned therein, whenever the proper returns of the Iowa swamp lands are made, so as to complete the title of the several counties thereto; and the several county judges shall give public notice thereof, and require the several claimants holding certificates to pay the entrance money into the treasury of the proper county; whereupon said claimants shall be entitled to receive a patent for the land mentioned in their respective certificates.” The pre-emption certificate then does confer rights, rights which are altogether inconsistent with the right or power of the county to confer a subsequent paramount title upon another. A subsequent grantee of the county must of necessity hold the title in trust for the holder of the certificate of pre-emption.
The title of defendant is based upon a valid certificate of pre-emption, dated November 21, 1855. The title of plaintiff is based upon a deed dated January 22, 1857. True, W. C. James testifies that he supposed the deed to Thomas A. Walker was made pursuant to a certificate of pre-emption held by him. Waiving the consideration of the question presented as to the competency of this testimony, if it proves anything, it only shows that the deed was based upon a certificate of preemption. Where this certificate is, to whom it was issued,
The petition of plaintiff should be dismissed, and a decree entered quieting defendant’s title.
Reversed.
Rehearing
ON REHEARING.
Within the time by rule prescribed the plaintiff filed a petition for rehearing, to which the defendant, as directed by1 the court, replied.
It is claimed by plaintiff that the foregoing opinion is in conflict with an opinion announced in this case at a former term of the court, and reported in 41 Iowa, page 697. Such is not the case. By reference to the former opinion, it will be seen that permission was given to amend the abstract so as to show that it contained all the evidence. Such amendment was made. We have not tried the case de novo, but have found that the evidence is not sufficient to sustain the finding of the court below. The opinion does not authorize final decree in this court, nor was it the intention to deprive plaintiff of a re-trial, if he desired to have such trial.
All we intended by the former opinion was that upon the evidence as now submitted the petition of plaintiff should be dismissed, and a decree' entered quieting defendant’s title.
If plaintiff can change the aspect of the case by the production of further testimony upon a re-trial, he may do so. The petition for rehearing is
Overruled.