Cornelius v. Kessel

• Decision Date: 25 September 1883
• Citation: 16 N.W. 550,58 Wis. 237
• Parties: CORNELIUS v. KESSEL.
• Court: Wisconsin Supreme Court

58 Wis. 237

16 N.W. 550

CORNELIUS

v.KESSEL.

Supreme Court of Wisconsin.

Filed September 25, 1883.

Appeal from circuit court, Sheboygan county.

Conrad Krez, for appellant, Charles Cornelius.

William H. Seaman, for respondent, Catharina Margaretha Kessel.

COLE, C. J.

On the former appeal--53 Wis. 403 [S. C. 10 N. W. REP. 520]--it was said the answer of the defendant showed strong equities to the land in controversy. The force of that remark was certainly not weakened by anything disclosed in the proofs on the second trial. The facts in the answer were fully established by the evidence, and it would seem almost a reproach upon the administration of justice if such a meritorious defense should fail. It is not claimed that the entry of this 40 by Davidson, in January, 1856, was in conflict with any state land grant or prior sale. The land was then subject to entry; it was purchased by him and paid for. There was no fraud or mistake in the transaction; the receiver took the price of the land and gave his receipt therefor. These are facts which cannot be successfully controverted. All the rights and interests which Davidson acquired by this entry became vested in the defendant's testator, who had been in continuous possession of the premises some years before he died, and had made improvements thereon. It is true, there was included in Davidson's purchase, and in the receiver's receipt, another tract of 80 acres which the United States did not own, but which belonged to the state under the swamp-land grant. But as respects this 40 the United States owned it and sold it for cash; parted with all its interests in it, except the mere naked legal title, which it held in trust for the purchaser or his assigns. We may well adopt, as regards this 40, the language of Mr. Justice MCLEAN in Carroll v. Safford, 3 How. (U. S.) 440, 460, and say: “When the land was purchased and paid for it was no longer the property of the United States, but of the purchaser. He held it for a final certificate, which could no more be canceled by the United States than a patent. It is true, if the land had been previously sold by the United States, or reserved from sale, the certificate or patent might be recalled by the United States, as having been issued through mistake. In this respect there is no difference between the certificate holder and the patentee.”

The learned counsel for the plaintiff insisted there was a distinction between the case where the purchaser obtains the register's final certificate and where he merely holds the receiver's receipt. But both instruments stand upon the same footing. The purchaser's rights are founded on the contract of purchase and payment of money, and the statutes of this state have always given the same effect to both instruments as evidence of title, (section 95, c. 98, Rev. St. 1849; section 103, c. 137, Rev. St. 1858; and section 4165, Rev. St. 1878;) and there is no earthly reason that we perceive for making a distinction between them, so far as the rights of the purchaser are concerned. Such being the case, it is clear that the order of the commissioner of the general land-office, made October 24, 1857, canceling the entry of this 40, was without authority in law and void. The commissioner had no authority whatever to cancel the entire entry because of a conflict as to one...