Error
from Reno District Court.
ON the
30th day of June, 1885, John Caldwell brought his action to
have his title established to and recover possession of the
northeast quarter of section 12, township 23 south, range 6
west, in Reno county. On January 24, 1887, the case was
submitted to the court, a jury being waived. The court was
requested by both parties to find separately the facts and
law. After hearing all the testimony the court took the case
under advisement until the 6th of April, 1887. At that time
the court made and filed the following findings of fact:
"1.
On January 1, 1809, one Robert Titus, mentioned in
plaintiff's petition, was lawfully married, at Sudbury
in Rutland county, Vermont, to one Phoebe Thomas; and that in
October, 1810, there was born as the issue of that marriage a
son, Alden Wheeler Titus, who was the only issue of that
marriage.
"2.
After the birth of said son, Alden Wheeler Titus, the said
Robert Titus abandoned his said wife and son and went into
the war of 1812, and never lived with them any more.
"3.
Said Robert Titus went from said war to East Bloomfield, in
Ontario county, in the state of New York, and on July 14
1818, without having been divorced from said Phoebe, married
Miriam Lee, by whom he had five children thereafter born
viz.: Benjamin, a son, Betsey, a daughter, Rachel, a
daughter, Delight, a daughter, Lois, a daughter.
"4.
Said Robert Titus thereafter, about the year 1832, removed
from Ontario county, New York, to Lenox, Macomb county
Michigan.
"5.
Defendant Lois Miller is the wife of the defendant D. B.
Miller, and is the youngest daughter of said Robert Titus and
Miriam Lee.
"6.
Robert Titus, in the year 1850, came to live with said D. B.
Miller and Lois Miller, his wife, and continued to live with
them from that date until his death, in 1871.
"7.
D. B. Miller and his wife Lois and said Robert Titus came to
Reno county, Kansas, from Will county, in the state of
Illinois, and settled there in the year 1871.
"8.
Robert Titus on July 10, 1871, made a preemption settlement
upon the land in controversy in this suit, viz.: N.E.1/4 sec.
12, township 23, range 6 west, Reno county, Kansas; and
thereafter, on September 8, 1871, died, not having completed
his preemption as required by act of Congress of March 3,
1843. (Rev. Stat. U.S. of 1878, § 2269.)
"9.
Robert Titus died intestate and utterly without any money or
property whatever. Upon his death said D. B. Miller was by
the probate court of Reno county, Kansas, appointed
administrator of said Robert Titus, deceased, and with his
own money caused said preemption to be completed, paying the
double-minimum price for said land to the government, viz.: $
400. This was done in the year 1871.
"10.
On the completing of said preemption by said D. B. Miller as
administrator, a patent for said land was issued by the
United States under and in accordance with the section 2269,
Revised Statutes U.S., a copy of which is hereunto annexed,
marked 'Exhibit A,' and made a part of these
findings.
"11.
Robert Titus died in Reno county, Kansas, intestate, on
September 8th, 1871.
"12.
Miriam Lee died intestate, in the year 1853.
"13.
His said wife, Phoebe Thomas Titus, died in Rutland county,
Vermont, in the year 1860.
"14.
Alden W. Titus, son of Robert and Phoebe Titus, died in
Charlestown, Mass., in the year 1876, intestate, leaving
heirs."
"16.
Defendant D. B. Miller has purchased from said heirs of Alden
W. Titus, and under proper conveyances from them is the owner
of all the rights, title and interest in said land which
inured to the said Alden W. Titus's benefit as the heir
of said Robert Titus under said patent.
"17.
Plaintiff has conveyances from the following aforesaid named
children of said Robert Titus and Miriam Lee, viz.: Delight,
intermarried with one Caldwell, the father of plaintiff, and
Rachel, intermarried with Crandall, conveying to him whatever
title they had in said land in controversy.
"18.
Said Betsey, intermarried with Nathan Hicks, died, to wit, on
the day of , and left surviving her, and who are still
living, Nathan Hicks her husband, her son Volney Hicks, her
daughter Melissa West, her daughter Ada Wade, and her
daughter Arabel Snyder.
"19.
Said plaintiff has procured and has from said Volney,
Melissa, Ada, Arabel, deeds of conveyance, conveying to him
all their several interests in the land in controversy, and
from James and Joseph Miller.
"20.
D. B. Miller has procured from said Nathan Hicks and has a
deed of conveyance conveying to him all the right, title and
interest which said Nathan Hicks had in said premises, as the
surviving husband of said daughter Betsey.
"21.
Benjamin Titus died in the year 1852, and left his widow, who
is still living, and three daughters, two of whom are still
living. The other daughter, Elmira, married Amos Miller, and
had seven children; said Elmira died in the year 1885,
leaving surviving her her said husband and the said seven
children, all of whom are still living."
"23.
Defendant D. B. Miller has proper conveyance of the land in
controversy from said Amos Miller, and from three of the said
sons of Elmira, viz.: William, conveying to him all the
right, title and interest in said land of which they were
respectively entitled to as heirs of said Benjamin Titus,
deceased.
"24.
Said children of Robert Titus and Miriam Lee were notoriously
recognized by Robert Titus as his own, and no question was
ever raised as to their legitimacy, until in this suit.
"25.
Plaintiff demanded to be let into possession March 4, 1885.
"26.
If the Miriam Lee children of Robert Titus are heirs within
the meaning of the act of Congress, § 2269, U.S. Revised
Statutes 1878, then the plaintiff is entitled to receive an
undivided 13/28 of the said land, and damages for its
detention since that time at the rate of $ 41.67 per year.
"The
said D. B. Miller claims all of the land under the said act
of congress and under the conveyances of the legitimate heirs
of Robert Titus to him; and if legitimate children only are
heirs under said act of congress, then the defendants are
entitled to recover."
EXHIBIT
A.
"The
United States of America, to all to whom these presents shall
come -- Greeting: (Certificate No. 593.) Whereas, D. B.
Miller, administrator for the heirs of Robert Titus,
deceased, of Reno county, Kansas, has deposited in the
general land office of the United States a certificate of the
register of the land office at Wichita, Kansas, whereby it
appears that full payment has been made by the said D. B.
Miller, administrator, according to the provisions of the act
of Congress of the 24th day of April, 1820, entitled 'An
act making further provisions for the sale of the public
lands,' for the northeast quarter of section 12, township
23, range 6 west, in the district of lands subject to sale at
Wichita, Kansas, containing one hundred and sixty acres
according to the official plat of the survey of the said
lands returned to the general land office by the surveyor
general, which said tract has been purchased by the said D.
B. Miller, administrator:
"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 cases made and provided, have given and
granted, and by these presents do give and grant unto the
said heirs of Robert Titus, deceased, and to their heirs, the
above tract above described, to have and to hold the same,
together with all the rights, privileges, immunities and
appurtenances of whatsoever nature belonging, unto the said
heirs of Robert Titus, deceased, and to their heirs and
assigns forever.
"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
hereunto affixed.
"Given
under my hand, at the city of Washington, the 20th day of
April, 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.
By A.
WILLIAMSON, Secretary.
"L.
K. LIPPENCOTT, Recorder of the General Land Office.
Recorded
in volume I, page 386.
(Seal.)
General Land Office U.S."
And
thereon the court made the following conclusion of law:
"From
the foregoing findings of fact the court finds for the
defendants; to all of which plaintiff excepts."
The
court then rendered judgment for D. B. Miller, adjudging him
the owner in fee simple of the northeast quarter of section
12, township 23 south, range 6, in Reno county, and entitled
to the lawful possession of the same; and further rendered
judgment that he and D. B. Miller were in the lawful
possession of the property at the commencement of the action.
The plaintiff filed a motion for a new trial, which was
overruled. He excepted, and brings the case to this court.
Judgment reversed and cause remanded.
