Bangs v. Stephenson

• Citation: 30 N.W. 317,63 Mich. 661
• Court: Supreme Court of Michigan
• Decision Date: 17 November 1886
• Parties: BANGS and others v. STEPHENSON and others.

30 N.W. 317

63 Mich. 661

BANGS and others v. STEPHENSON and others.

Supreme Court of Michigan

November 17, 1886

Appeal from Menominee. In chancery.

Bill in chancery in the county of Menominee, to determine title to certain lands in said county. On demurrer, the bill was dismissed, and complainants appeal.

Olds & Robson and Isaac Marston, for complainants.

B.J Brown, for defendants.

MORSE, J.

Margaret B. Bangs is the widow, and the other complainants are the sons, of Anson Bangs, who died in Virginia in 1880. By his will, probated in Kings county, New York, and in Menominee county, in this state, they receive and are entitled to his whole estate, share and share alike.

It is shown by the bill of complaint filed in this cause in March 1886, that on the third of August, 1858, one John Quimby then of Menominee, Michigan, under the provisions of section 8, act 31, Laws 1858, purchased several parcels of land in said county of Menominee, and paid to the state therefor one-quarter of the purchase price, $80.11; that the balance of the purchase money was to draw interest at 7 per cent said interest to be paid on or before the first day of March in each year, or within 60 days thereafter. He received in evidence of his purchase a part-paid certificate, numbered 2,486, issued to him by the commissioner of the state land-office, August 3, 1858. These parcels constituted one continuous body of land.

January 12, 1859, for a valuable consideration, Quimby conveyed a portion of these lands, described as lot No. 1 of section 26, township 32 N., of range 27 W., with other lands, to John N. Thereault, by warranty deed recorded April 23, 1859. Thereault, on the ninth of July, 1859, in consideration of $134, conveyed, by a good and sufficient deed, the said lot 1, with other lands, to the said Anson Bangs, which deed was recorded August 8, 1859. And it is averred that these conveyances vested in said Bangs all the title of John Quimby, under said certificate 2,486, to said lot 1, and the recording of said deeds was due notice to all of his interest in said land. The certificate was turned over to said Bangs, which, together with the receipts of the state treasurer up to and including March 1, 1868, for interest, are now in the possession of complainants; that the payment of interest aforesaid was made by said Bangs to protect his interest in said certificate, which has never been divided or surrendered to the state; and that some time in 1860 the said Quimby assigned to said Bangs the entire balance of his remaining interest in said certificate, and thereupon Bangs paid to the state all the interest due thereon, and the penalty which had accrued, within the time prescribed by law; and that on or about the twenty-ninth day of November, 1864, the said Quimby filed a bill in the circuit court for the county of Menominee, in chancery, against the commissioner of the state land-office and said Anson Bangs, alleging fraud and misrepresentation by Bangs in obtaining the balance of Quimby's interest in said certificate, and praying for an order vacating the assignment to Bangs, and decreeing that Quimby was entitled to a patent for the other parcels of land; but complainants aver, on information and belief, that Bangs was never informed of said suit, that no personal service was made upon him, but he was brought in by publication, the bill taken as confessed against him, and a decree entered August 7, 1865, in accordance with the prayer of such bill.

In pursuance of said decree the other lands embraced in this certificate were patented to said Quimby, July 15, 1867. But said certificate has never been divided, surrendered, altered, or changed, and, at the time of the issue of the patent of the other lands to Quimby, the state of Michigan did not question but that the terms and requirements of the said certificate had been fully met and complied with in every respect. The said Anson Bangs paid the entire amount of the annual interest due upon said certificate up to and including the year ending March 1, 1868. In the month of July, 1869, he applied by letter for a statement of the amount due upon the certificate, principal and interest; it being his intention to pay the same, and take a patent therefor from the state, as he stated in said letter. The deputy commissioner of the state land-office wrote in reply as follows: "STATE LAND-OFFICE, LANSING, July 12, 1869.

"Anson Bangs, Esq.--SIR: Inclosed I send you the amount due on swampland certificates Nos. 2,486 and 3,964, up to date, July 12, 1869. If you should pay all up on this land, it would be impossible for this office to issue to you a clear deed or patent for the land. It is held by parties that the law has not been complied with, and application has been made for a portion of the land contained in these certificates. This office has been notified not to issue deeds for the land until the matter is settled by the courts.

"Respectfully yours, E.H. PORTER, Dep. Com."

July 7, 1869, Bangs directed his attorneys, Longyear & Seager, at Lansing, by letter, to make a tender upon such certificates, and take all necessary steps to protect his rights in the premises; and complainants aver, upon information and belief, that said attorneys did tender to said commissioner $132.31, in full of the amount due upon said certificate, July 12, 1869, accompanying said tender with a demand for a full-paid certificate, which was refused. No steps were ever taken, however, by the state, to forfeit such certificate, as against Bangs, or any notice given him to return the same for cancellation, or any other purpose. But March 10, 1875, an application was made by the defendant Samuel M. Stephenson to purchase said lot 1 at private sale, which was accepted, and filed, together with the sum of $31.27, to cover the purchase price. March 13, 1875, a patent was issued to said Stephenson of said lot 1, who subsequently, his wife joining with him, conveyed a half interest in the same to the defendant Joseph Fleshiem.

Complainants further allege that they are advised that said certificate has never been forfeited; that Anson Bangs, up to the time of his death, always asserted his interest in said land by virtue of such certificate, and that he never had any notice of the pretended sale to Stephenson; and that, as the sale to him was private, there has been no declaration of forfeiture or judicial determination of the same, or any public offering of said lot in order to restore it to market, and therefore it was not subject to private entry. They further aver that by such sale to Stephenson, Bangs was deprived of...