Baldwin v. Boyd

• Decision Date: 25 November 1885
• Citation: 25 N.W. 580,18 Neb. 444
• Parties: EDGAR A. BALDWIN, APPELLEE, v. SAMUEL M. BOYD AND MARY L. BOYD, APPELLANTS
• Court: Nebraska Supreme Court

25 N.W. 580

18 Neb. 444

EDGAR A. BALDWIN, APPELLEE, v. SAMUEL M. BOYD AND MARY L. BOYD, APPELLANTS

Supreme Court of Nebraska

November 25, 1885

APPEAL from the district court of Lancaster county. Heard below before POUND, J.

AFFIRMED.

Sawyer & Snell, N. S. Scott, and M. L. Easterday, for appellants.

Plaintiff claims under a patent issued under act of 1870, and he introduces a patent issued under act of 1820. Then proceeds by extrinsic evidence to show that the land department erred in judgment. The decisions are uniform, that the records of the proceedings of the land office, to impeach the validity of a patent, are not admissible, unless the patent is absolutely void upon its face, or the issuance thereof was without authority, or was prohibited by statute, or the state had no title to the lands patented. Ferry v. Street, 7 Pac. Rep., 712. Smelting Co. v. Kemp, 104 U.S 636. Patterson v. Winn, 11 Wheat., 380. Clark v Lancaster, 36 Md. 196. Mann v. Mann, 14 Johns 1. Wade on Notice, Div. IV., Chap. 2. A purchaser from one holding under a patent is not bound to look behind the patent to learn if it was properly issued to the one properly entitled to it. Warville on Abstracts, 132, § 5. Schnee v. Schnee, 23 Wis. 377. On second point, cited: Forgy v. Merryman, 14 Neb. 515. Howland v. Fuller, 8 Minn. 30. Richards v. Haines, 30 Iowa 574.

Mason & Whedon, for appellee, cited: Perry v. Ashby, 5 Neb. 293. Smelting Co. v. Kemp, 104 U.S. 647.

OPINION

MAXWELL, J.

This is an action to cancel a sheriff's deed to the defendants for "thirty-five acres off the west end of the north half of the north-west quarter of section 19 in township 10 north, of range 7 east of the 6th principal meridian," and to quiet the plaintiff's title. The court below found the issues in favor of the plaintiff, and rendered a decree in his favor.

It appears from the record that in May, 1871, one Charles E. Van Pelt entered as a homestead, under the laws of the United States, the N. 1/2 of the S.W. 1/4 and the N. W. 1/4 of the N. E. 1/4 of section 19, T. 10 N., R. 7 E. of 6 P. M., containing 118 72/100 acres; that Van Pelt was the head of a family and over the age of twenty-one years, and had served as a soldier in the army of the United States, during the rebellion, for ninety days and upwards, and had ever been loyal to the United States; that on the 15th of February, 1872, said Van Pelt having cultivated and improved said homestead, and resided thereon as required by law, in pursuance of the act of congress, paid to the receiver of the land office at Lincoln the sum of $ 2.50 per acre, with proper proof of settlement and cultivation, and obtained the receiver's receipt, etc., and a patent was duly issued to him on the 15th of June, 1874. On the 23d day of June, 1873, Van Pelt and wife conveyed said premises by warranty deed to the plaintiff, which deed was not filed for record until the 7th day of May, 1874. On the 16th of July, 1873, the defendant, Samuel M. Boyd, recovered two judgments in the probate court of Lancaster county against Charles E. Van Pelt, one of said judgments being for the sum of $ 148.75 and costs, and other for the sum of $ 467.92 and costs. Transcripts of said judgments were duly filed in the office of the clerk of the district court on the 17th day of July, 1873, and executions issued thereon and the thirty-five acres of land in controversy sold to the defendants, and in January, 1874, the sale was confirmed and a deed ordered and made to the purchaser, and this is the cloud on the plaintiff's title complained of.

The first objection made by the appellant is, that it appears from the patent that "full payment has been made by Charles E. Van Pelt according to the provisions of the act of congress of April 24, 1820, entitled 'An act making further provisions for the sale of public land.'"

The following is a copy of the patent:

"THE UNITED STATES OF AMERICA.

"To all to whom these presents shall come, greeting:

"CERTIFICATE NO. 2525.

"Whereas Charles E. Van Pelt, of Lancaster county, Nebraska, has deposited in the GENERAL LAND OFFICE of the United States a certificate of the register of the land office at Lincoln, Nebraska, whereby it appears that FULL PAYMENT has been made by the said Charles E. Van Pelt according to the provisions of the act of congress of the 24th of April, 1820, entitled 'An act making further provision for the sale of the public lands,' for the north half of the north-west quarter and the north-west quarter of the north-east quarter of section nineteen in township ten north, of range seven east, in the district of lands subject to sale at Lincoln, Nebraska, containing one hundred and eighteen acres and seventy-eight-hundreths of an acre, according to the official plat of the survey of the public lands returned to the GENERAL LAND OFFICE by the SURYEYOR GENERAL, which said tract has been purchased by the said Charles E. Van Pelt.

"Now know ye that the UNITED STATES OF AMERICA, in consideration of the premises and in conformity with the several acts of congress in such case made and provided, HAVE GIVEN AND GRANTED, and by these presents DO GIVE AND GRANT, unto the said Charles E. Van Pelt and to his heirs, the tract above described, TO HAVE AND TO HOLD the same, together with all the rights, privileges, immunities, and appurtenances of whatsoever nature thereunto belonging, unto the said Charles E. Van Pelt.

"In testimony whereof, I, Ulysses S. Grant, PRESIDENT OF THE UNITED STATES OF AMERICA, have caused these letters to be made patent, and the seal of the GENERAL LAND OFFICE to be hereto affixed.

"Given under my hand at the city of Washington the fifteenth day of June in the year of our Lord one thousand eight hundred and seventy-four, and of the independence of the United States the ninety-eighth.

"By the President, U.S. GRANT.

...