Dale v. Turner

• Decision Date: 04 October 1876
• Citation: 34 Mich. 405
• Court: Michigan Supreme Court
• Parties: Gilbert Dale v. James M. Turner and another

34 Mich. 405

Gilbert Dale v. James M. Turner and another

Supreme Court of Michigan

October 4, 1876

Heard June 20, 1876 [Syllabus Material]

Appeal in Chancery from Eaton Circuit.

Decree reversed, with costs of both courts, and one entered perpetually enjoining the ejectment suit and requiring the defendants to release to complainant all claim to the lands depending on the state patent.

I. H Corbin, John M. Corbin, E. A. Foote and P. T. VanZile, for complainant, to the point that complainant's title was such only as the locator, Britton, acquired by his entry and location, and this was an equitable title, cited: 4 Wall 210; 11 Wheat. 200; 3 How 441; as to complainant's right to come into equity for relief: Comp. L. 1871, § 5072; 1 Doug. 546; 9 Mich. 381; 16 Mich. 135; 13 Peters 436; 11 Wheat. 380.

This case is not within the ruling of Grant v. Smith, 26 Mich. 204, or Bush v. Donahue, 31 Mich. 481, or R. R. Co. v. Smith, 9 Wall. 95; the swamp land grant of 1850 is to be construed as only an agreement to convey: 5 Wend. 26; and the state, by the action of its legislature in 1853, waived its claims as against intervening purchasers from the United States; a grant by congress should have operation according to its intent: 20 Mich. 304; as to construction of government grants: 11 Peters 589; 15 Ib. 215; 16 Ib. 411; 1 Black 377; 24 Ark. 440; 17 How. 558; that this was not a grant in presenti: 63 Ill. 359; 66 Ib. 450; 67 Ib. 281.

The equitable title of the locator, confirmed by congress, is the highest evidence of title: 2 How. 319.

A defendant can only defend on the grounds set up in his answer: 2 Mich. 144, 161; Walk. Ch., 267; facts proved but not put in issue by the pleadings cannot be regarded at the hearing: 2 Mich. 381; 6 Ib. 133; 8 Ib. 395; 9 Ib. 213; 10 Ib. 453; 11 Ib. 284, 529; 16 Ib. 223; and therefore the defense of estoppel cannot avail in this case.

Crane & Montgomery, for defendants, relied mainly upon Bush v. Donahue, 31 Mich. 481. They argued that no state court could make a decree in a collateral proceeding declaring that the government exceeded its powers in issuing a patent, or invalidating or setting aside such patent, or holding the government equitably estopped by a transaction of one of its agents from patenting its lands: Bruckner v. Lawrence, 1 Doug. 37; Bruner v. Manlove, 1 Scam. 161; Jackson v. Ingraham, 4 Johns. 181; Mansey v. Drake, 10 Johns. 23; 2 Wash. R. P., 524, § 24; Jackson v. Hart, 12 Johns. 81; Boggs v. Mercer Mining Co., 14 Cal. 361; Field v. Seaburg, 19 How. 333; that the grant of 1850 was a grant in presenti and the title then passed to the state, so that the lands were no longer subject to private entry: 31 Mich. 481; R. R. Co. v. Fremont Co., 9 Wall. 89; 2 Wash. R. P., 525, 526, §§ 26-30; R. R. Co. v. Smith, 9 Wall. 95; Johnson v. Ballou, 28 Mich. 383; 24 Ark. 437; that if the patent were necessary to transfer the title, it took effect by the doctrine of relation from the time when the state became entitled: 13 Wall. 100; that if it were necessary to make the grant definite and certain in its application to particular parcels, this was accomplished by the designation on the maps of survey, and the subsequent acceptance by the legislature; and the act of 1850 was as effectual to transfer the title as a patent: Enfield v. Perruit, 8 N. H., 512; Enfield v. Day, 11 N. H., 520.

OPINION

Graves, J.

This cause comes before the court by appeal on complainant's part from a decree dismissing his bill on pleadings and proofs.

The parties holding hostile claims to two forty-acre parcels of swamp land, and complainant being in possession, the defendants brought ejectment, and thereupon complainant filed the present bill to enjoin the law proceedings and to subject the question of right underlying the controversy to decision in equity.

The complainant claims through several mesne grants from one Britton, who in 1852 made an entry at the United States land office at Ionia under a military bounty warrant, and received from the office a certificate of purchase in the usual way. And the defendants claim as purchasers from the state under its patent regularly issued to them in 1873.

The facts connected with the final question do not appear to be disputed, and of course the acts of congress and of the legislature are recognized by the court.

On the 28th of September, 1850, congress passed the act commonly known as the "swamp land act," and thereby granted for the purposes specified the swamp and overflowed lands, "made unfit thereby for cultivation." The act required the secretary of the interior, as soon as practicable, to make out an accurate list of the plats of such lands and transmit the same to the governor, and on request of that officer to cause a patent to be issued to the state therefor; and it declared that on that patent the fee simple to said lands should vest in the state subject to the disposal of the legislature. Prior to the transmission of any lists to the governor by the secretary, and nine months after the passage of the act of congress, namely, on the 28th of June 1851, the legislature passed the act entitled, "An act to provide for the sale and reclaiming of swamp lands granted to the state, and for the disposition of the proceeds," and the first section declared that the legislature adopted "the notes of the surveys on file in the surveyor general's office, as the basis upon which they will receive the swamp lands granted," etc.

The third section declared that "the commissioner of the state land office shall have the control and supervision of said lands, and of the sale thereof, and shall, as soon as the title vests in the state, cause the same to be sold," etc.; and the sixth section declared that "said lands shall only be sold in the same legal subdivisions in which they shall be received by the state."--L. 1851, p. 322.

The lands in question belonged to the class of lands described in the act of congress, and were designated as swamp or overflowed lands on the official plats of the United States survey.

Subsequent to this act of the legislature, but prior to any further proceedings by authorities at Washington, and on the 17th of March, 1852, Britton entered the land at the United States land office at Ionia, by means of a military land warrant, and the officers there regularly recognized him as purchaser, and gave him a certificate of purchase in due form and according to the practice of the office.

Possession was at once taken by Britton as purchaser, and it has remained since in those holding his right, of whom complainant is the last. Sometime after his purchase, but at what precise time does not appear, except that it was prior to sale by the state to defendants, the land warrant and an application for a patent to Britton were filed in the general land office at Washington, and have since remained there.

We have the most conclusive evidence from departmental and judicial records that between the passage of the swamp land act and the formal identification of the parcels appropriated and the practical transfer of their administration to state authority, the cases in this and other states of purchase of the United States, or of entry under their laws by private parties, were very numerous, and we also know that the existence of this state of things was matter of common notoriety at the time; moreover, during the period in question, there was grave difference of opinion as to whether the act of congress of its own force worked an instantaneous transfer, or merely devoted the lands to eventual transfer, and contemplated that they should be catalogued by the secretary of the interior, and perhaps patented in order to consummate conveyance. Many able men were of the latter opinion, and our own legislature appears to have taken this view in framing the act of June 28, 1851, and to have continued it for some time afterwards. The phraseology of the act of 1851, and of some other acts can hardly be accounted for on any other theory.

Seeing that the purpose of congress was to make a donation, and not a conveyance for consideration, and believing that the act did not of its own force immediately transfer the lands in absolute property to the state, and naturally wishing to act in the same spirit of liberality which had actuated the general government, the legislature were of opinion that measures should be taken to protect the rights of intervening purchasers from the United States, and enable the state and the United States to settle in an amicable, fair and practical way as between themselves in all cases where the rights of such purchasers might be involved. The very nature of the subject, and all the circumstances, were adapted to incline the legislature to act on broad views of right and policy, and to abstain from all extreme pretensions and all attempts to gain technical advantage. In its origin and development the matter was not one of negotiation and diplomacy, nor one stimulated or directed by national or personal greed. The occasion was not one of haggling between eager and exacting adversaries. It was an affair between governments of the same system, intimately connected by the ties of interest and of friendship. The lands were to be a gift. Moreover, the purchasers in question were likely to be inhabitants of the state, and their interests might naturally be thought to merit on that account a particular solicitude by the legislature. As we have seen, Britton, the complainant's predecessor in right, was one of these purchasers. These considerations naturally conduct us to the act of the legislature of February 14, 1853. It was entitled, "An act to authorize the state treasurer to receive from the general government certain moneys...