Braun v. Mathieson
| Decision Date | 06 June 1908 |
| Parties | JOHN BRAUN, Appellant, v. ALFRED MATHIESON |
| Court | Iowa Supreme Court |
REHEARING DENIED TUESDAY, SEPTEMBER 29, 1908.
Appeal from Woodbury District Court.-- HON. JOHN F. OLIVER, Judge.
ACTION to quiet title. A demurrer to plaintiff's petition being sustained, judgment was rendered for the defendant, from which plaintiff appeals.
Reversed.
Edwin J. Stason and Alfred Pizey, for appellant.
Henderson & Fribourg, for appellee.
From the allegations of the petition it appears that in 1882 one Ludwig Braun entered the land in controversy as a timber culture claim pursuant to Act of Congress, June 14, 1878 chapter 190 (20 Stat. 113), and in 1893, Ludwig Braun having in the meantime died without receiving the patent to the land under his claim, patent thereto was issued by the United States unto the "heirs of Ludwig Braun, deceased"; it being recited that the claim of said heirs had been established and duly confirmed in conformity to law. Ludwig Braun left surviving him his widow, Matilda, and his son, John, the plaintiff in this action. In 1902 the undivided two-thirds of the land was sold at guardian's sale as the property of plaintiff and conveyed to the defendant. On the same date Matilda Braun, as widow, made a pretended conveyance to the defendant of an undivided one-third interest in the premises. Under these conveyances the defendant claims to be the owner in fee simple of the land as patented to the heirs of Ludwig Braun as aforesaid, while plaintiff claims that the conveyance by the widow was ineffectual to pass any interest, as no interest had vested in her, and that he is still the owner of an undivided one-third of the land.
Under the timber culture act, already referred to (Act June 14, 1878, since repealed by Act March 3, 1891 [U. S. Comp. St. 1901, page 1535], with a saving clause as to claims already initiated), the entryman was entitled to a patent at the expiration of eight years from the date of entry if the conditions of the act had been complied with, or at any time within five years thereafter on compliance with such conditions; and it is contended for the appellee that, as eight years after the date of the original entry by Ludwig Braun had expired before his death, he had become vested with equitable title requiring only the formal issuance of a patent to convert it into a legal title, and that his widow had a vested right of dower in the premises under this equitable title on her husband's death. But, as there is no evidence that Ludwig Braun had, prior to his death, complied with all the conditions of the act so as to be entitled to a patent, it must be presumed that there was no right to a complete title under the act until the patent was issued to his heirs.
It is to be observed that the act contemplates the possibility that its conditions may not be complied with during eight years, but that the entryman or his heirs may acquire the right to a patent by compliance with such conditions within the following five years, and there are no allegations in the petition indicating that the right to a patent had accrued and become perfect prior to the time when such patent was in fact issued. The interest of the widow is therefore to be determined under the patent to the heirs. Such a grant is not in proesenti, but the entryman acquires as against the United States only the right to occupy the land entered and perform the conditions which will enable him to acquire the title. He has no vested right until the conditions have been fully complied with. Frisbie v. Whitney, 76 U.S. 187, 9 Wall. (U.S.) 187 (19 L.Ed. 668); The Yosemite Valley Case, 82 U.S. 77, 15 Wall. (U.S.) 77 (21 L.Ed. 82); Hall v. Russell, 101 U.S. 503 (25 L.Ed. 829).
The statute provides that, if the person making such entry at the time when the right to a patent accrues is dead, the "heirs or legal representatives" of the entryman may prove compliance with the provisions of the act; and accordingly the patent to the land in question was issued to the "heirs of Ludwig Braun, deceased." It has uniformly been held that such a patent under the timber culture act or other statute containing similar provisions passes title directly to the heirs as substituted beneficiaries, who take by purchase, and not by descent, and that the title vests in such heirs by the grant, and not as successors to the interest of the deceased entryman. Hall v. Russell, 101 U.S. 503 (25 L.Ed. 829); Hershberger v. Blewett (C. C.) 55 F. 170; Haun v. Martin, 48 Ore. 304 (86 P. 371); Walker v. Ehresman (Neb.) 79 Neb. 775, 113 N.W. 218; Warner Valley Stock Co. v. Morrow, 48 Ore. 258 (86 P. 369); Gould v. Tucker, 20 S.D. 226 (105 N.W. 624); Wittenbrock v. Wheadon, 128 Cal. 150 (60 P. 664, 79 Am. St. Rep. 32); Cooper v. Wilder, 111 Cal. 191 (43 P. 591, 52 Am. St. Rep. 163); Aspey v. Barry, 13 S.D. 220 (83 N.W. 91). The widow of the deceased entryman acquires no interest as such; no title having passed to the entryman in which she can take a right of dower. Quinn v. Ladd, 37 Ore. 261 (59 P. 457); Maynard v. Hill, 125 U.S. 190 (8 S.Ct. 723, 31 L.Ed. 654).
The sole question for determination, then, is whether under the description of the grantees in the patent as Ludwig Braun's "heirs" his widow acquired any interest. As there is no law of descent under the statutes of the United States, the term "heirs" is to be construed in accordance with the local law. Hall v Russell, 101 U.S. 503 (25 L.Ed. 829); Wittenbrock v. Wheadon, 128 Cal. 150 (60 P. 664, 79 Am. St. Rep. 32); Caldwell v. Miller, 44 Kan. 12 (23 P. 946); Hutchinson Inv. Co. v. Caldwell, 152 U.S. 65 (14 S.Ct. 504, 38 L.Ed. 356). But the local law is resorted to, not for the purpose of determining the distribution of the estate of a deceased person, but only to determine who are the grantees under such description in the patent. When the persons coming within the description of "heirs" are...
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