County of Polk v. Hunter

• Decision Date: 09 January 1890
• Citation: 42 Minn. 312
• Parties: COUNTY OF POLK <I>vs.</I> JOHN HUNTER.
• Court: Minnesota Supreme Court

Page 312

42 Minn. 312

COUNTY OF POLKvs.

JOHN HUNTER.

Supreme Court of Minnesota.

January 9, 1890.

In proceedings in the district court for Polk county, to enforce payment of real-estate taxes remaining delinquent on the first Monday in January, 1888, the defendant Hunter filed an answer, and the cause was tried by Mills, J., who found the facts as stated in the opinion, and that defendant was entitled to judgment adjudging the tax on the land in question null and void, and thereupon, on application of the county attorney, the case was certified to this court.

Moses E. Clapp, Attorney General, and D. D. Williams, for the State.

P. C. Schmidt, for defendant.

COLLINS, J.

The defendant above named resists the entry of judgment in proceedings to enforce the collection of taxes remaining delinquent against certain real property, upon the ground that the same is public land, belonging to the general government, and therefore not taxable. Organic Act, § 6; Gen. St. 1878, c. 11, § 5, subd. 3. The finding of fact discloses that on or about April 23, 1886, prior to the assessment and levy of the tax involved, defendant made and filed with the officers of the proper local land-office the so-called "final proof," as a pre-emption claimant, under the laws of the United States, to the land in dispute, paid to said officers the requisite amount of money for the same, and that there was then issued and delivered to him the usual final receipt or certificate of entry; that thereafter, about January 1, 1888, said proof and proceedings thereunder were suspended, and new proof ordered to be made, by the commissioner of the general land-office, because the testimony of one of the claimant's witnesses was taken before a justice of the peace instead of before one of the local land-officers, and also because said testimony was taken on a day other and different from that named in the notice of the making of final proof; that no other irregularities or defects existed respecting said pre-emption; that no adverse claim had attached to the land; that said order for new proof had not been complied with; and that the order of suspension had not been revoked. The case is certified up as provided in Gen. St. 1878, c. 11, § 80.

Lands purchased of the general government, and paid for, are the property of the purchaser, and will descend to his heirs as real estate, upon the issuance of the final certificate. Technically, at law, the fee may be in the United States, but the equitable estate is with the purchaser. Carroll v. Safford, 3 How. 441, 450. Lands cease to be public when entered at the local offices, and a certificate of entry has been given. The government agrees to issue a patent as soon as it can, and in the mean time holds the naked legal fee in trust for the purchaser, who has the equitable title. Witherspoon v. Duncan, 4 Wall. 210. Lands sold by the United States may be taxed before it has parted with the legal title by issuing a patent, and this doctrine is applicable to cases where the right to the patent is complete, and the equitable title is fully vested in the party, without anything more to be paid, or any act to be done going to the foundation of his right. Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 Wall. 444. See, also, to the same effect, Wisconsin Cent. R....