168 P. 251 | Wyo. | 1917
Lead Opinion
This action was commenced on October 5, 1903, by Philip A. Steinhoff against Mads Wolbol to recover as damages the alleged value of the hay and grass grown upon a tract of land described as the southwest quarter of section 11, in township 15 north, of range 78 west of the sixth principal meridian, situated in the County of Albany, in this state, and the issues and profits of said land, alleged to have been taken and converted by the defendant to his own use during the period from on or about August 18, 1890, to August 3) I9°3-
The petition alleges that the plaintiff was in possession of the land, and had been entitled to the exclusive possession since January 1, 1890, through his lawful entry thereon on that date, his lawful homestead entry on September 16, 1890, a receiver’s final receipt upon his final proof as such homestead entryman on April 20, 1897, and a patent issued to him by the United States on December 15, 1897; that from about August 18, 1890, until on or about August 3, 1903, the defendant was in possession of the land, having ejected the plaintiff therefrom and prevented him from going upon or using the same by certain injunction orders wrongfully and unlawfully granted on or about August 14, 1890, and March 21, 1892, in an action brought by'the Lar
Issues were not joined for trial until January 14, 1907, when a reply was filed to an amended answer and cross-petition filed on February xo, 1906. The plaintiff having died on January 22, 1907, an order was entered on March 28, 1907, reviving the action in the name of his widow and daughter as his heirs and the administrator of his estate as plaintiffs and against the same defendant. Before the trial also, and on or about July 11, 1915, the defendant died, and the one first appointed administrator of the Steinhoff estate having'in the meantime resigned, and another having been appointed, an order was entered on November 22, 1915, upon a showing of the facts and by consent and stipulation, reviving the action in the name of Willis Jensen as administrator of the estate of the original plaintiff, Sarah Stein-hoff, and Margaret Wilhelm, his widow and daughter, respectively, as plaintiffs, and in the name of Katrina Wolbol, executrix of the last will and testament of Mads Wolbol, deceased, as defendant. The cause came on for trial on' June 12, 1916, upon the issues raised ib.y certain equitable defenses and an alleged cause of action for equitable relief set up in the amended' answer and cross-petition, leaving the issues of law raised by the pleadings for a future trial and determination, if necessary; a motion filed by the defendant that the said equitable issues be first tried having 'been granted by the District Court. Upon such trial, without a jury, there was a general finding and a judgment for the plaintiffs. The case is here for the review of that judgment on error.
Said answer alleges in substance and effect that the defendant is in possession of the land claiming an estate or interest therein adverse to the plaintiff; that he is the full equitable and beneficial owner thereof, having acquired by deed the equitable title of one John J. Dean under a final certificate of purchase issued to the latter upon his making satisfactory proof in the United States Band Office at Cheyenne on June 24, 1884, that he had reclaimed the land pursuant to his lawful entry thereof on December 11, 1883, under the Desert Land Laws. That after the issuance of said certificate, and on June 30,' 1884, said entryman conveyed, the land to one Alfred T. Wilkins by deed duly recorded on August 6, 1884, in the office of the register of deeds of the county in which the land was situated. That thereafter, on September 20, 1884, said Wilkins mortgaged the land to one Thomas E. Lewis, said mortgage being duly recorded on October 7, 1884, in the office of said register of deeds. That on September 5, 1887, said Lewis, for value, assigned said mortgage to one Henry G. Balch, who, on the same date, assigned it to the Laramie National Bank; and that said bank on March 10, 1890, became the purchaser of the land upon a sale under said mortgage and a court decree foreclosing .the same, and thereafter, on July 7, 1890, conveyed the land to the defendant, who ever since has remained the owner thereof. That after the transfer and
It is sufficient in stating the issues to say as to the reply and answer to the said sixth defense and cross-petition that it contains a general denial and other paragraphs pleading .the statute of limitations, laches, estoppel, and former adjudication. A supplemental answer to the cross-petition
Certain facts were agreed to upon the trial by stipulation. It was thus agreed that John J. Dean, being lawfully qualified, made desert entry for the land and final and satisfactory proof of its reclamation by him on the respective dates stated in the answer, paying to the receiver of the land office twenty-five cents per acre at the time of filing his declaration and the further sum of one dollar per acre at the time of making his final proof, and that on the date of said proof a final certificate of purchase was issued to him in the usual form. That thereafter said Dean and wife, for a valuable consideration then paid to him, conveyed the land by warranty deed to one Alfred T. Wilkins, who, with his wife, thereafter conveyed the same by a mortgage deed to one Thomas E. H. Lewis, in consideration of the sum of $5,571.00 then and there loaned to Wilkins by Lewis; the said deed to Wilkins and mortgage to Lewis having been executed and recorded on the respective dates thereof as stated in the answer. That said Lewis on September 5> 1887, for a valuable consideration, sold, transferred and assigned the said mortgage and the debt secured thereby to Henry G. Balch, who thereafter, for a valuable consideration, sold, transferred and assigned the mortgage and debt to the Laramie National Bank. That thereafter, in the District Court for the county in which the land was situated, the foreclosure and sale of the land under said mortgage were ordered and adjudged, and the bank became the purchaser at said sale, for value, whereby all the right, title and interest which the said John J. Dean or Alfred T. Wil
A certified transcript of the evidence taken upon the hearing in the land office upon which the Dean entry was can-celled, including the special agent’s report, was introduced by the defendant, together with other evidence in support of the averments of the answer impeaching that hearing and the action of the land department cancelling the entry for fraud and on the other grounds stated. Also evidence by several witnesses acquainted with the land prior and subsequent to the Dean entry and while it was pending to show the desert character of the land at the time of said entry and that it had been reclaimed by Dean when his final proof was made. From the special agent’s report, which was dated at Cheyenne; September 25, 1885, it appears that said agent stated therein that the land was then owned and controlled by said Wilkins, that he had purchased it from Dean, and that he was the present claimant and had 'been in possession of the land about thirteen or fourteen months, and in the report also the postoffice address of Wilkins was stated — a place shown by the report to be in the immediate neighborhood of the land, and it was also stated that he was the postmaster there.
The defendant also introduced in evidence a letter addressed to Dean by the receiver of the local land office dated May 14, 1886, containing a copy of the commissioner’s letter of May 4, 1886, holding the Dean entry for cancellation and requiring the “claimant” to be notified of said action and informed of the nature and substance of the' special agent’s report and that he would be allowed sixty days in which to appeal or apply for a hearing to show cause why his entry should be sustained, and that failing to appeal or show cause for sustaining the entry the same would be finally cancelled. And it appears that the hearing aforesaid was had upon Dean’s application, and also that in the testimony of the special agent given at the hearing he referred to Wilkins as “the present owner of the land,” and stated that Dean had conveyed the land by deed dated July 30, 1884 — the
P'ortions of the record in certain judicial proceedings involving the land in controversy and relating to the injunction orders referred to in the pleadings were received in evidence, some parts thereof being introduced by the defendant and others by the plaintiffs. From this evidence it appears that on March 15, 1890, the Laramie National Bank brought an action in the District Court in Albany County against Steinhoff to quiet its title to the land and enjoin the defendant from trespassing upon it; the bank alleging that it was seized in fee simple deriving its title under the final certificate issued to Dean, and certain mesne conveyances whereby all of Dean’s right and title had become vested in the bank. It also alleged that defendant claimed a cancellation of the certificate, and that he had a preference right to settle upon and make entry of the land. Steinhoff’s answer and cross-petition denied the averments of the petition as to the bank’s title, and alleged that Dean’s entry was fraudulent, that the same and his certificate had been cancelled, and that the defendant had entered upon the land under the homestead laws. And by a supplemental answer defendant alleged his making of a homestead entry on September 16, 1890. The cause was tried and determined in said court on March 21, 1892, the defendant having in the meantime been enjoined from interfering with the plaintiff’s possession pending the action. By the judgment therein it was found that the plaintiff bank was then and at the time of the commencement of the action seized of the land in fee simple and in actual possession thereof, deriving its title under a final certificate of purchase issued by the receiver of the U. S. land office at Cheyenne, Wyoming, to one John J. Dean, grantor of the plaintiff; that the action of the register and receiver of the local land office and the
It is conceded that there was no appeal from that judgment, and it appears to have remained in full force and effect until vacated in part by an order of this court on August 3, 1903, upon the final determination on error of a later action brought by Steinhoff against the bank to vacate the judgment: That action was commenced in the District Court on September 23, 1899, said Steinhoff, as plaintiff, alleging, among other things, the granting of the temporary injunction in the former action, the entering of the judgment therein, the subsequent final proof by Steinhoff and the issuance to him of a final homestead receipt followed by the issuance of the patent; that the facts of such final proof and the issuance of the patent were not a part of the issues in the former cause, but new matters arising since the entry of said judgment. And it was prayed that the judgment be opened, modified and vacated, and for such other and further relief as might be proper. The cause was heard upon a demurrer to the petition, which was overruled, and the defendant bank electing to stand upon its demurrer a judgment was rendered vacating the judgment, and upon proceedings in error in this court that judgment was modified by vacating only so much of the former judgment as decreed the title to the land in the bank and enjoined Stein-hoff from interfering with its possession, and went 'beyond determining the right of possession at the time and awarding costs, and as so modified the judgment was affirmed.
A preliminary question of practice is raised by defendants in error by challenging in their brief the sufficiency of the
In Ohio, from which state our Code was taken, the language of a motion was held sufficient as a substantial statement of the ground authorized by the sixth clause aforesaid which alleged merely that the “judgment” is not sustained by sufficient evidence and is contrary to law. (Buckeye Pipe Line Co. v. Fee, 62 O. St. 543, 57 N. E. 446, 78 Am. St. Rep. 743.) Of course, under said clause, the only questions to be considered are those relating to the sufficiency
In support of the main contention as to the motion counsel cite cases decided by this court to the effect that a mere general statement of errors of law occurring upon the trial is insufficient. But in those cases the court was considering the eighth clause of the section aforesaid, which specifies as a ground for new trial: “Error of law occurring at the trial, and excepted to by the party making the application.” This court has not held that stating the ground specified in the sixth clause in the language of the statute is insufficient. On the contrary, our decisions, so far as they touch the question, have been to the contrary. And we think that form of stating said ground in a motion for new trial has been the one generally followed in this state, and usually, we believe, without being objected to or questioned as too vague or indefinite.
In Boburg v. Prahl, 3 Wyo. 325, 23 Pac. 70, the motion charged: (1) Irregularity in the proceedings by which the plaintiff was prevented from having a fair trial. (2) That the decision and judgment of the court is not sustained by sufficient evidence and is contrary to law. * * * (4) Error of law occurring at the trial and excepted to by the plaintiff. Other'grounds were stated not material here. The court, in the opinion by Chief Justice Van Devanter, held that the first and fourth grounds of the motion were too general and indefinite for the reason that the irregularity charged in the first and the error complained of in the fourth should have been clearly designated. That, however, was not said of the second or other grounds of the motion, 'but they were considered and held not well taken, for the reason that the petition was fatally defective, and the evidence conflicting. And it is fi> be observed that the language of the second ground was the same as the first ground of the motion in this case. In Adams v. Smith, 11
Cases are cited from other states as holding to the contrary. But most of them were evidently decided under a statute different from our own, and in some the reasons given would not apply under our statute. The California case cited (Crow v. Crow, 168 Cal. 607, 143 Pac. 689) is not much in point, but it cites the statute, which is also referred to and quoted in the earlier case of DeMolera v. Martin, 120 Cal. 547, 52 Pac. 825. It provides that when the ground of the motion is the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient, and that if no such specification is made, the statement shall be disregarded on the hearing of the motion. The Indiana cases cited do not hold it necessary to state the particulars wherein it is claimed that a verdict or decision is contrary to law or not sustained by the evidence, but the adjudged defect of the motion in those cases was in the use of the words “finding” or “judgment,” or both, instead of “decision”; thus differing from the Ohio case of Buckeye v. Fee, supra, in that respect. In most of the other cases cited the general charge that the verdict or
In our view of the case it is unnecessary to consider the sufficiency of the evidence to show the alleged fraud in the cancellation of the Dean entry and certificate or. whether upon the facts then before the land department the law was misapplied. That might have been necessary if the right of the defendant depended upon establishing the invalidity of the cancellation as against Dean, or that he was not concluded thereby. But his equitable title evidenced by the certificate had passed from him to' another by his conveyance aforesaid before any action or proceeding to cancel the entry. The report of the special agent, the order thereon holding the entry for cancellation, the hearing and the commissioner’s decision, all occurred after Dean had sold and conveyed the land to Wilkins, and thé latter had mortgaged
As declared and settled by the Supreme Court of the United States, the rule is that where such a final certificate has been cancelled by the land department without notice to the entryman’s transferee or mortgagee, the cancellation, though it may be binding and conclusive upon the entryman, if upon notice-to him, is not conclusive upon such transferee or mortgagee so as to bar him from showing the validity of the entry, either by a proper proceeding in the land department before the issuance of a patent, or a proper proceeding before a judicial tribunal against one to whom a patent has been issued ;■ but such cancellation, 'binding upon the en-tryman, destroys the effect of the cancelled certificate as prima facie evidence of the right to a patent, and it cannot be used by the transferee or mortgagee as prima facie evidence of such right. He is, however, permitted to show the validity of the entry by other evidence. (Guaranty Savings Bank v. Bladow, 176 U. S. 448, 20 Sup. Ct. 425, 44 L. Ed. 540; Thayer v. Spratt, 189 U. S. 346, 23 Sup. Ct. 576, 47 L. Ed. 845.) In the case last cited the court said:
“It has been held in this court, in Guaranty Savings Bank v. Bladow, 176 U. S. 448, 20 Sup. Ct. 425, 44 L. Ed. 540, and Hawley v. Diller, 178 U. S. 476, 488, 20 Sup. Ct. 986, 44 L. Ed. 1157, that a cancellation of a certificate of entry was not conclusive as against a transferee who had no notice and no opportunity to be heard upon the question of the original validity of the entry, but that it left the transferee without the right to use the entry certificate as prima facie evidence of the validity of the entry or of his subsequent
And in that case a defendant holding under a certificate transferred before its cancellation, who had not been notified of the proceeding to cancel it, was held entitled to a decree declaring that the plaintiffs holding under a patent issued upon a subsequent entry held the legal title in trust for the defendant and directing them to issue a deed conveying such title to the defendant, or in default of such deed that the decree should stand and be treated in place thereof, the evidence offered by the transferee being held sufficient to show the validity of the original entry. The right of a mortgagee without notice of the proceedings in the land department was considered in Guaranty Savings Bank v. Bladow, and the court said that, although conclusive as to the entryman upon all questions of fact, if made after notice to him, the cancellation would not be conclusive upon a mortgagee, if made without notice to him and with no opportunity on his part to be heard: “That is, it would not prevent the mortgagee, before the issuance of a patent, from taking proceedings in the land department, and therein showing the validity of the entry, or from proceeding before a judicial tribunal, against the patentee, if a patent had airead)'- issued, and therein showing the validity of the entry; such proof in each case would, however, have to be made by evidence other than the certificate which had been cancelled.”
That the land had been conveyed to Wilkins by Dean was made known to the commissioner and the land department by the report of the special agent and also by his testimony
But if that view as to the effect of the actual knowledge of Wilkins of the proceedings to cancel the Dean entry should be incorrect, it is clear that Lewis, his mortgagee, who was without any notice whatever, was not concluded by those proceedings, so as to prevent him from showing the validity of the entry and his claim, and that the original defendant holding under a warranty deed from the purchaser at the foreclosure sale, thereby succeeding to the equitable title and right of the mortgagee, would not be prevented in a proper proceeding against the patentee to show the validity of the entry, and thus that the patent title was held in trust for him.
We think the evidence in this case sufficiently shows the • validity of the entry, and without substantial conflict. That the land was originally desert in character and was reclaimed by Dean is clearly established by the evidence. The
Although not in the evidence in this case, defendants in error by their brief have called our attention to the fact, as shown by a decision of the Secretary of the Interior, on April 12, 1890 (10 L. D. 446), that the bank applied for the reinstatement of Dean’s desert land entry, and that said application was denied. We doubt whether the matter is presented in form to be considered. B'ut, in our opinion,
It is contended that the defendant’s right to equitable or other relief was lost through laches and the running of the statute of limitations, and these matters are pleaded in the plaintiff’s reply. The argument as to the statute of limitations is directed chiefly to its effect upon the question of laches, but we understand it to be also insisted upon as a bar to defendant’s alleged cause of action and the consideration of the facts alleged as a defense. The provisions of the statute relied on are found in Sections 4295 and 4303, Compiled Statutes, 1910. The period of limitation provided by each section is ten years after the cause of action accrues; Section 4295, relating to an action for the recovery of the title or possession of lands, and Section 4303, to
But assuming either section to be applicable, directly or by analogy, it would not bar the right to equitable relief or the defense upon the facts, for the ten-year period of limitation had not expired when the original answer was filed, January 17, 1905, alleging the facts aforesaid, nor, indeed, when the amended answer was filed, February 10, 1906. Plaintiff did not have the legal title until December 15, 1897, the date of the patent, less than eight years prior to the filing of the original answer and less than nine„ years prior to the filing of the amended answer. And his final certificate upon making homestead proof was not issued until April 20, 1897, also less than ten years before either the original or amended answer was filed.
The rights of the parties upon the facts existing prior to the issuance of said certificate, if not also prior to the patent, including Steinhoff’s original homestead entry, were involved and determined in the action brought by the bank in 1890 resulting in the judgment of March 21, 1892, adjudging the title and right of possession in the bank and enjoining Steinhoff from interfering with such possession. And Wolbol, the bank’s grantee, protected by that judgment, having continued in possession thereafter until the patent was issued, there was no necessity or reason for a subsequent action while the legal title remained in the United States. It appears, inferentially at least, that he continued in possession after the patent was issued and until a short time before the present suit was commenced, except for a comparatively brief period during which his possession was interrupted or interfered with by Steinhoff, who, upon receiving his patent, went on the land seeking to regain and hold possession, whereupon, by a proceeding in the former action, he was cited for contempt, found guilty, ordered to make restitution, and enter into a personal obligation by bond that he would not again violate the injunction.. The action of Steinhoff to vacate said judgment was
The judgment was vacated to the extent that it decreed title in the bank, on the ground that the legal title was then' in the United States, and further vacated so far a.s it enjoined Steinhoff from interfering with the possession of the premises, because of his having subsequently acquired the legal title and to enable him to assert the same. But the judgment was not disturbed so far as it determined the right of possession and enjoined interference therewith prior to the issuance of patent conveying the legal title.' On the contrary, it was held by this court in disposing of the matter that the District Court had power to try and .determine the right of possession and to make the necessary orders to enforce its judgment; that it had the parties to that controversy regularly before it, and, so far as the judgment found the right of possession and enjoined the defendant from interfering with such possession, that it was clearly within the court’s jurisdiction. (See Laramie National Bank v. Steinhoff, 11 Wyo. 290, 71 Pac. 992, 73 Pac. 209.)
The fact that the bank or Wolbol did not contest the Steinhoff homestead entry in the land office is not important on the question of laches. Their right as against that entry was asserted and sustained in the action aforesaid, and until it became necessary to challenge the legal title in another after passing from the United States, or the alleged and adjudicated right of possession under the Dean certificate was interfered with, there could be no laches on defendant’s part in relying upon the judgment in the absence of further proceedings questioning or endangering his alleged title or right to possession. The matter was again contested in the action to vacate the judgment, wherein the bank, the sole defendant, defended on the ground that the validity of Steinhoff’s original homestead entry had been submitted to the court in the former action and determined adversely to him, and that his patent was based
It is further contended that the court had no right to separate the legal. and equitable issues for trial, and, for that reason, that the proceeding in error should be dismissed. If. that method of procedure was erroneous it would not, in our opinion,’ justify a dismissal of the error proceeding. Nor do we understand that the defendants in error are in a position here to complain of that action, although they objected and excepted to it in the trial court; they have filed no cross-petition in error and are not complaining of- the judgment. (Johnson v. Golden, 6 Wyo. 537, 48 Pac. 196; Hanna v. Barrett, 39 Kan. 446, 18 Pac. 497; and see Shinkle v. Bank, 22 O. St. 516; Bundy v. Ophir Iron Co., 35 O. St. 80.) But we think it was within the power of the court to first try and determine the issues upon the equitable defense and cross-petition, and that it was proper in this case. (38 Cyc. 1270; 7 Ency. Pl. & Pr. 810; Quinby v. Conlan, 104 U. S. 420, 26 L. Ed. 800; Cornelius v. Kessel, 128 U. S. 456, 9 Sup. Ct. 122, 32 L. Ed. 482; Massie v. Stradford, 17 O. St. 597; Taylor v. Leith, 26 O. St. 426; Sheeful v. Murty, 30 O. St. 50.) If such issues were friable by a jury, as suggested in the brief of defendants in error, the record does not show a demand for a jury trial as required by statute to avoid a waiver thereof (Comp. Stat. 1910, Sec. 4514)4 and the objection could not therefore be considered even if the-parties were in a position to complain of the failure to call a jury.
The only other question necessary to consider is the effect upon the equitable issues of the defendant’s acquirement of the legal title after filing his answer and before the trial. It is contended by defendants in error that such issues were thereby eliminated, and that the proceeding in error should be dismissed on that ground. Although the conveyance of the legal title to the defendant before the trial made unnecessary a decree declaring such title to be held in trust for him and directing that it be conveyed to him, it does not follow that he was entitled to no equitable relief
But, upon the facts alleged and established, the specific relief declaring the trust and ordering a conveyance of the title is not the only affirmative relief that might have been granted by a court of equity, under the former practice when a purely equitable right could not be alleged as a defense to an action at law. The facts would have justified a decree in equity enjoining the further prosecution of the action for damages. Their effect as defensive matter under the present practice is substantially the same, for they deprive the plaintiff of his right to recover upon his alleged cause of action. If defendant had not acquired' the legal title and should be granted a decree directing its conveyance to him, his right to defeat the action for damages would remain based upon his equitable title and the right to possession as the equitable and beneficial owner during the period covered by the claim for damages. The fact that there is no further necessity for directing the title to be conveyed, or declaring the trust upon which the legal title was held by the plaintiff, should not prevent the defendant from insisting upon his equitable title and right of possession thereunder in defense of the action, and, in our opinion, it does not.
As against the original plaintiff, the holder of the patent, the original defendant, before as well as after the patent, was entitled to possession, by virtue of his equitable title. The District Court therefore erred in deciding upon the equitable issues in favor of the plaintiffs. As this disposes of the entire case, a trial of the other issues becomes unnecessary. And there seems to be no substantial reason for ordering a new trial upon the equitable issues, instead of directing a judgment. The judgment will'be reversed, and the cause remanded with directions to enter a judgment
Rehearing
ON PETITION ROR RRHRARING.
Counsel for defendant in error has filed an application for a rehearing in this case and assigned thirty-five reasons or alleged errors in the decision of this court, accompanied by an elaborate brief. There seems to be but two points alleged why a rehearing should be had, or the opinion handed down November 1, 1917, in this case withdrawn or modified, that were not fully gone into and presented in the original briefs, viz.: First, that the writer hereof had taken his seat as a member of this court since the hearing and decision, and should take part in the application for a rehearing; and, second, that a four-year period of limitation applies to the matters set up in the equitable defense of the answer under Section 4300, Wyoming Compiled Statutes, 1910, instead of a ten-year period under Sections 4295 and 4303, as held in the opinion.
A change of membership in the court is not in itself sufficient reason to grant a rehearing. (4 C. J. 625.) And counsel recognizes this in his brief. The writer not being present at the argument and presentation of this case, has read the pleadings, original briefs of the parties, and the brief filed on behalf of the defendant in error with the application for rehearing, and carefully gone over the entire ‘voluminous record and can see no good reason for disagreeing with the conclusions stated in the exhaustive opinion by Chief Justice Potter in this case.
In regard to the statute of limitations, counsél for defendant in error seems to have changed his mind as to which statute applies since the submission of the case to this court on the hearing. His pleadings, as far as they apply to any statute of this state, states a ten-year period and in his original brief he relies only on Sections 4295 and 4303, Wyo
One other matter which was presented in the original brief is so emphasized in the brief for rehearing as to warn rant mention, and that is the contention that the judgment of the District Court of Albany County in the case of Laramie National Bank v. Steinhoff, rendered May 21, 1892, was void in tota, and did not protect the possession of Wolbol. This matter was disposed of and settled in the case of Laramie National Bank v. Steinhoff, 11 Wyo. 290, 312, adversely to counsel’s contention, as stated in the opinion in this case, although the same counsel made the same contention in his brief on rehearing in that case (11 Wyo., p. 302); and in the opinion on rehearing, Judge Corn (11 Wyo. on page 312) said: “Counsel contends * * * * that, therefore, the judgment itself was void in toto and must give way. But the conclusion does not follow. The court had jurisdiction to determine the question of the right of possession between these parties and had them before it.” Arid the mandate in that case to the District Court plead and introduced in evidence in this case by defendant in error distinctly shows that the judgment in the original case, as far as it decreed the right of possession in the Bank prior to the issue of the United States patent, was valid and subsisting. Defendant in error having plead in the supplemental answer to the cross-petition that the plaintiffs’ title had been acquired by the defendants below by purchase, thus eliminating the necessity of declaring that the legal title was held in trust for defendants below, the case stood, as far as plaintiffs were concerned, simply as a case for damages on account of possession by Wolbol during the same period that he held possession under the judgment of March 21, 1892, and the plaintiff having plead very fully the plead
The original briefs in this case were very elaborate, as is the brief for counsel for defendant in error on application for rehearing, and we can hardly see that oral argument would illuminate them or enlighten the court further. The original opinion very carefully and fully considered'all the matters and points that had been raised and we believe they were rightly determined and no useful purpose would be served by a rehearing. Counsel for defendant in error, in his brief on the hearing, says: “Owing to the lapse of time, and the inexorable laws of nature, most of the judges and lawyers, as well as the litigants, have ‘passed over the Range’.” Now that all of the titles to the land in controversy, both legal and equitable, have become merged in the heirs of Wolbol, and all necessary matters have, as we believe, been rightly decided, it is meet that this long and vexatious litigation should be brought to a close before those judges and lawyers still connected with it have followed their predecessors “over the Range.” Requiescat in pace. Rehearing denied. Rehearing denied.
