Brygger v. Schweitzer
| Decision Date | 24 January 1893 |
| Citation | 5 Wash. 564,32 P. 462 |
| Parties | BRYGGER ET AL. v. SCHWEITZER ET UX. |
| Court | Washington Supreme Court |
Appeal from superior court, King county; I. J. Lichtenberg, Judge.
Action by Anna Sophia Brygger, executrix, and Ole Schillestad executor of John Brygger, against John Schweitzer and Nancy Schweitzer, his wife. Judgment dismissing the action. Plaintiffs appeal. Reversed.
Jenner, Legg & Williams, Jacobs & Jacobs, and W Lair Hill, for appellants.
Thompson Edsen & Humphries, for respondents.
Appellants brought this action to have the defendants declared to hold the title to certain property described in the complaint as their trustees, and to have the title decreed to and quieted in them. The court below, after hearing, dismissed the action, and plaintiffs have appealed.
The respondents' first contention is that the complaint is insufficient to support the case made by the proofs, if one is made. It is no doubt true that the complaint is not as full in some respects as it should have been, but, after a somewhat careful examination of all the pleadings and of the proofs, we are satisfied that the respondents were not misled to their prejudice in the presentation of their case, or in meeting that of the plaintiffs, by any errors or omissions in the complaint; and, such being the fact, and this being a suit in equity, we shall disregard any technical errors in the pleadings, and proceed to determine the rights of the parties upon the proofs.
Plaintiffs claim under a university selection, made by the territory of Washington under the act of July 17, 1854, and by virtue of the provisions of the act of March 14, 1864; and the first question to be determined is as to whether or not they have any standing in court by virtue of such selection. If they have not, of course they must fail in their action, however erroneous may have been the action of the land department in issuing the patent to the respondents. A stranger could not interfere to protect the rights of the United States or any other person. Do the facts shown by the proofs establish a prima facie claim upon the part of the plaintiffs, independent of any questions growing out of the claim of the respondents? As to this question, it is not necessary for us to say more than that it seems to have been decided in favor of the rights of the plaintiffs by this court in the case of Keane v. Brygger, 3 Wash. 338 28 P. 653. From what was said in that case, and from the action of the general land office in regard to the rights of a person holding under a university selection in all respects similar to this, it follows that, if no rights had interfered to prevent such action, the title of the plaintiffs would have been affirmed and made perfect by the action of the secretary of the interior as to the piece of land in controversy in this action, as it was to that involved in the case above cited. But for the intervention of the claim of the respondents, the title of the plaintiffs would have been made perfect by the action of the land department, and that which would have had the force of a patent would have been granted to them. They are, therefore, in a condition to assert their rights as against the United States if the title was still vested in it; and, the title having passed to the respondents, they are in a situation to likewise assert their rights as against them; and if, from all the facts in the case, it appears that their rights are superior to those of the respondents, so that, but for mistake or inadvertence on the part of the land department, the title would have passed to them, instead of to the respondents, it will be the duty of the court to give them the benefit of such title as they would have obtained from the United States but for its error in wrongfully passing the title to the respondents.
The first question above suggested having been determined in favor of the plaintiffs, we must enter upon an examination of the rights of the respondents, and see whether or not they are superior to those of the appellants. Respondents claim by virtue of a homestead entry made in 1879, and if at that time, under all the facts shown in the record, the land was a part of the public domain, unoccupied and unappropriated, the respondents' rights, founded upon such homestead entry, would, in the regular course of business, have rightfully culminated in the passage of the legal title to them. The important question, therefore, is as to whether or not the land in question was covered by the university selection at the date of the said homestead entry. It is objected upon the part of the respondents that much of the proof introduced by the appellants to establish the regularity of the university selection was of a date subsequent to the issuance of the patent, and that as, by the issuance of said patent, the jurisdiction of the land department over said land was terminated, such proofs were incompetent and could in no manner affect the rights of the respondents under said patent. This would doubtless be true if the patent had issued regularly, and not in fraud of the rights of the plaintiffs, or those under whom they hold. But such was not the case. Prior to the issue of said patent, a contest had been waged in the land office on behalf of the university selection, and the entry of the respondents at one time held for cancellation. It was afterwards, by the action of the commissioner of the general land office, reinstated, and the university selection held for cancellation. From the action of the commissioner in thus holding the university selection for cancellation, an appeal to the secretary of the interior was duly taken and perfected, and under a uniform course of practice in the department of the interior no action could properly be taken in regard to said homestead entry until such appeal had been heard and decided. Notwithstanding such practice, by some inadvertence on the part of the commissioner of the general land office, final proof was authorized to be taken as to the homestead entry of respondents, and upon the return of such proofs to his office the patent was issued. Under these circumstances the issue of the patent was clearly irregular, and could in no manner affect the rights of those who, at the date of its issue, were duly prosecuting such appeal from such decision of the commissioner of the general land office. The only effect of the issuing of the patent under these circumstances was to transfer the legal title to the respondents, and make it necessary for those who otherwise would have been entitled to have their adverse claims adjudicated in the land office, to have them adjudicated in the courts; and if in the courts they are able to establish such a state of facts as would have entitled them to the patent, if not already issued, at the hands of the United States, then the courts must see that they get the same benefit by decreeing the title held by the respondents to be so held for the use and benefit of such adverse claimants.
It is further objected upon the part of the respondents that neither the plaintiffs nor any one else made any objection to the taking of such final proofs on the part of the respondents. But, in view of...
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