Castor v. Dufur

• Decision Date: 07 March 1907
• Parties: CASTOR v. DUFUR.
• Court: Iowa Supreme Court

133 Iowa 535

111 N.W. 43

CASTOR

v.DUFUR.

Supreme Court of Iowa.

March 7, 1907.

Appeal from District Court, Union County; H. M. Towner, Judge.

Action for breach of a covenant of warranty as to seisin made in a deed by one of plaintiff's remote grantors. Defendant interposed many defenses, some of which will be referred to in the body of the opinion. The case was tried to the court, a jury being waived, as a law action, resulting in a judgment dismissing plaintiff's petition, and he appeals. Affirmed.Temple, Hardinger & Temple, for appellant.

Jas. G. Bull and E. D. Samson, for appellee.

DEEMER, J.

Primarily the controversy is over the title to 40 acres of land in Clarke county, Iowa, known as the “S. E. 1/4 of the N. E. 1/4 of section 11, twp. 73, range 37.” There seem to be three separate and to some extent independent sources of title: One through tax deeds executed by the treasurer of Clarke county, Iowa, as early as the year 1872; another a quitclaim deed to one of plaintiff's remote grantors from the Chicago, Burlington & Quincy Railroad Company, of date March 27, 1887; and a third a homestead entry made by plaintiff some time in the year 1903, which has since been commuted, and plaintiff now holds a patent from the United States government for the land. At the time the plaintiff purchased the land in controversy, which was in the year 1902, defects were discovered in the title, and he withheld of the purchase price due his immediate grantor the sum of $92 to fix up the title, his grantor agreeing to perfect the same. It was discovered that there was no patent from the government; and, upon investigation, it was concluded for reasons hereinafter to be disclosed that plaintiff should make a homestead entry of the land, which he did in April of the year 1903, which has since been commuted, and plaintiff has received his patent from the government at an expense which amounted to less than the sum retained by him of the purchase price. No title to the land was acquired from the government until this patent was issued, and it is claimed that as defendant, Dufur, a remote grantor, made a deed containing covenants of warranty, he is liable to plaintiff thereon to the extent of the value of the lands. The Commissioner of the General Land Office, in recognizing plaintiff's right to make his entry, based it upon the ground that he (plaintiff) claimed to be a good-faith purchaser of the land under a chain of title commencing with a treasurer's tax deed dated April 23, 1872. It appears from the record that the land in controversy was supposed to be within the six-mile limit of the line of the Burlington & Missouri River Railroad Company, the predecessor in interest of the Chicago, Burlington & Quincy Railroad Company, and that it passed under the acts of Congress of the year 1856, supplemented by the acts of the Fifth General Assembly of this state. But upon investigation it was found that the land was not within these limits. It was then selected as indemnity land within the 15-mile limit under other congressional enactments; but claim under these grants was rejected April 11, 1903.

The Commissioner of the General Land Office in canceling the selection wrote the register at Des Moines, Iowa, “to hold the tract subject to entry by the first legal applicant.” Before the selection as indemnity land had been rejected, the Chicago, Burlington & Quincy Railroad Company, successor in interest to the Burlington & Missouri River Railroad Company, conveyed the land by quitclaim deed to one Hoffman, one of plaintiff's remote grantors; the expressed consideration being the sum of $100. The tax deed was issued, as before stated, but under the record it was void, for title to the land had not passed from the general government, and the land was not subject to taxation. But in the year 1875 Anderson, one of plaintiff's grantors, who held title under the tax deed, went into the possession of the land, fenced, improved, and cultivated it, and it has ever since been in the actual possession of plaintiff and his remote grantors back to Anderson. As soon as plaintiff discovered that the selection of the land by the railway company had been rejected, he was advised to make an entry thereof under the homestead act; and within a few days thereafter he made a homestead entry for said tract, which was granted by the Commissioner upon the ground heretofore stated, to wit, that he was a good-faith purchaser of the land. That he was such good-faith purchaser the record clearly discloses, although the only basis of his title at that time was a void tax deed and a selection by the railway company, which was afterward canceled. Of course, the tax deed was void and the selection by the railway company of the property as indemnity lands of no force because finally canceled; but some of the plaintiff's remote grantors thought they obtained title from the railway by deed, and others thought they held good title under the tax deed, and valuable improvements were made upon these lands in the belief that title had passed to the railway company. It has been the policy of the general government to favor actual settlers upon public lands, and, as said in Ard v. Brandon, 156 U. S. 543, 15 Sup. Ct. 409 (39 L. Ed. 524), “the law deals tenderly with one who in good faith goes upon public lands with a view to make a homestead.”

By acts of Congress approved January 13, 1881 (21 Stat. 315, c. 19 [U. S. Comp. St. 1901, p. 1594]), for the relief of settlers on restored railroad lands, special privileges are granted to settlers to purchase their lands from the government; and by act of September 29, 1890 (26 Stat. 496, c. 1040 [U. S. Comp. St. 1901, p. 1598]), providing for forfeiture of certain lands granted railroads, it is provided that settlers thereon “shall be entitled to preference in entering the same under the homestead law.” Now by act of Congress approved March 3, 1887 (24 Stat. 556, c. 376 [U. S. Comp. St. 1901, p. 1595]), providing for the adjustment of railway land grants, those who have purchased lands from railways the title to which had failed were given special privileges. The act contained these provisions: “Sec. 5. That where any said company shall have sold to citizens of the United States, or to persons who have declared their intentions to become such citizens, as a part of its grant, lands not conveyed to or for the use of such company, said lands being numbered sections prescribed in the grant, and being coterminous with the constructed parts of said road, and where the lands so sold are for any reason exempted from the operation of the grant to said company, it shall be lawful for the bona fide purchaser thereof from the said company to make payment to the United States for said lands at the ordinary government price for like lands, and thereupon patents shall issue therefor to the said bona fide purchaser, his heirs and assigns. Provided, that all lands shall be excepted from the provisions of this section which at the date of such sales were in the bona fide occupation of adverse claimants under the pre-emption or homestead laws of the United States, and since been voluntarily abandoned, as to which excepted lands the said pre-emption and homestead claimants shall be permitted to perfect their proofs and entries and receive patents therefor: Provided, further, that this section shall not apply to lands settled upon subsequent to the first day of December, 1882, by persons claiming to enter the same under the settlement laws of the United States, as to which lands the parties claiming the same as aforesaid shall be entitled to prove up and enter as in other like cases.” The Commissioner of the General Land Office issued the following circular with reference to the construction of the act: “Under this section, when the company...