Elliott v. Thompson

• Decision Date: 31 December 1941
• Docket Number: 6922
• Citation: 120 P.2d 1014,63 Idaho 395
• Parties: NORMAN ELLIOTT, Appellant, v. RICHARD A. THOMPSON and BESSIE B. THOMPSON, husband and wife, Respondents
• Court: Idaho Supreme Court

120 P.2d 1014

63 Idaho 395

NORMAN ELLIOTT, Appellant, v. RICHARD A. THOMPSON and BESSIE B. THOMPSON, husband and wife, Respondents

No. 6922

Supreme Court of Idaho

December 31, 1941

Rehearing denied January 31, 1942

COVENANTS-BREACH-ACTION FOR DAMAGES-NOTICE TO GRANTOR-PUBLIC LANDS-TITLE-SECRETARY OF THE INTERIOR-JURISDICTION-CONCLUSIVENESS OF FINDINGS-ESTOPPEL-LIABILITY OF PARTIES.

1. Where title to realty is in the federal government or in the state, a suit by grantee against grantor for damages on grantor's warranty to "warrant and forever defend" may be brought though there has been no actual eviction.

2. Where a grantee advises his grantor of litigation pending and the litigation results in a determination that title conveyed is invalid as against other outstanding adverse title, the grantee, immediately on such determination, has a cause of action for "breach of warranty" to "warrant and forever defend," and the grantor who fails to aid in the previous litigation, after such notice, is conclusively bound by such determination.

3. The Secretary of the Interior has original, exclusive jurisdiction to pass on questions concerning the title to public lands as passing from the United States.

4. Decisions by the Secretary of the Interior on matters relating to public lands are the equivalent of a "judgment" of a court.

5. The Secretary of the Interior may exercise discretion in determining matters relating to public lands.

6. The findings of fact of the Secretary of the Interior on matters relating to public lands are conclusive, but his conclusions of law are not and may be reviewed in courts of competent jurisdiction and in appropriate actions.

7. Decision of the Secretary of the Interior that realty was not within terms of congressional grant to the state of Oregon for the Dalles Military Road, because realty had never been listed with the land office, and that the secretary had no authority to issue a patent or recognize title as in grantee who held under claim of title from the Dalles Military Road Company, entitled grantee to damages from grantor for "breach of warranty" to "warrant and forever defend" unless the decision was set aside, reversed, or otherwise modified.

8. Before the courts will assume jurisdiction over public lands the land department must have acted, and the party seeking relief must have exhausted his remedies in the land department.

9. Where grantee under deed containing warranty of grantors to "warrant and forever defend" notified the grantors of proceedings in the land department to obtain a patent decision of the Secretary of Interior that realty was not within terms of congressional grant to the state of Oregon for the Dalles Military Road, because realty had never been listed with the land office, and that the secretary had no authority to issue a patent or recognize title as in grantee was conclusive though not tested in courts of law, and rendered grantors liable for "breach of warranty," since it was the duty of the grantors to take appropriate action if they desired to have the Secretary's decision changed.

10. The rule that, where one of two persons must suffer loss, the loss should fall on the one who is must culpable, who could most easily have avoided its consequences, and on whom the greater duty to discover the cause and defect rested requires a grantor rather than a grantee to suffer loss in case of a breach of a covenant of warranty or of a covenant for quiet and peaceable possession.

11. Where there was a breach by grantors of public lands of warranty to "warrant and forever defend," grantee was entitled to judgment for purchase price of lands and interest and also the costs and expenses of proceedings before the land department to obtain a patent to the lands or recognition of title.

Rehearing denied January 31, 1942.

APPEAL from the District Court of the Seventh Judicial District, in and for the County of Washington. Honorable O. A. Sutton, Judge.

Action for damages for breach of covenant of warranty of title. Judgment for defendant. Reversed and remanded with instructions.

Judgment reversed. Judgment entered for the costs, expenses, purchase price, and interest, of the land necessarily incurred. Costs awarded to appellant.

George Donart and Blaine Hallock, for Appellant.

All matters concerning the administration and disposition of public lands are exclusively within the jurisdiction of the Commissioner of the General Land Office and the Secretary of the Interior, and their decisions may not be made the subject of collateral attack through the courts. (Knight v. United Land Association, 142 U.S. 161; 12 Sup. Crt. 258; Pierce v. France, (Wash.) 26 P. 192; Orchard v. Alexander, (Wash.) 26 P. 196; 157 U.S. 372; 15 Sup. Crt. 635; Hawley v. Diller, 178 U.S. 476; 20 Sup. Crt. 986.)

Appellant is entitled to judgment against respondents for the full amount of his damages including attorneys fees, costs and interest. (27 R. C. L. p. 636 Sec. 394; 66 C. J. p. 1549 Sec. 1648; 14 Am. Juris. p. 582 Sec. 154 to 159; 21 C. J. S. p. 917 Secs. 47 and 142 to 150; Hammond v. O. & C. R. R. Co. 117 Ore. 244; 243 P. 767; Dillathunty v. Little Rock 27 S.W. 1002; 28 S.W. 657; McGary v. Hastings 39 Cal. 360.)

No title to Section 33 passed or could pass to The Dalles Military Road Company or any of its successors in interest for the grant had been fully supplied, and the amount of the same would be exceeded if additional lands were patented under the grant. (Act of March 3d, 1887, Sec. 7; 25 Stat. 556; Altschul v. Clark, 39 Ore. 315.)

Frank D. Ryan and Ed. R. Coulter, for Respondents.

That the steps taken by plaintiff and appellant to obtain a patent from the Federal Government to the lands in controversy were wholly useless and without any legal purpose or effect because the title to these lands, ever since the passage by Congress of the Act of Congress approved February 25, 1867 (14 Stat. Lg. p. 409) and the acceptance of said road by the Governor of the State of Oregon and the filing of the map thereof in the office of the Secretary of the Interior, General Land Office, divested the Federal Government of all interest in and title to said lands, and vested the title to the same in the State of Oregon, and by mesne conveyances has descended to and now rests in the plaintiff and appellant in this action. That the Federal Government had no jurisdiction to issue said patent and the expenditures for no part of which respondents are liable to the plaintiff. (Gulf Coal and Coke Co. v. Musgrove, 70 A. 179; Brooks v. Winkles, 78 SE. 129; Tiffany on Real Property, Vol. 2, p. 1697; Van Wyck v. Knevals, 27 Law Ed. 202-203; Wright v. Roseberry, 121 U.S. 500, 30 Law Ed. 1039; Wisconsin Railroad Co. v. Price County, 133 U.S. 496, see page 510 of the opinion; United States v. Oregon and Cal. Railroad Co., 186 F. 861.)

GIVENS, J. Budge, C.J., Morgan, Holden, and Ailshie, JJ., concur.

OPINION

GIVENS, J.

Appellant sued respondent, his grantor, under the covenant of warranty of fee simple title ^[1] in the warranty deed of May 15, 1936, conveying, among other lands, Section 33, Township 14 South, Range 41 East Willamette Meridian, in Malheur County, Oregon, for a consideration of $ 2,000.

The controversy emanates from this historical setting, as appears from the stipulation and abstract of title: February 15, 1867, Congress (Vol. 14, U.S. Statutes at Large, p. 409, Ch. 77 of the 2d Session of the 39th Congress) granted to the state of Oregon for the Dalles Military Road from Dalles City, on the Columbia River, to a point on the Snake River opposite Fort Boise (quite evidently the fort established in 1834 at the mouth of Boise River and not the one established in 1863 at the present site of the city of Boise), alternate, staggered, opposed sections of public lands, designated by odd numbers, to the extent of three sections in width on each side of said road, with lieu sections within ten miles on each side, the lands to be disposed of by the legislature of the state and the proceeds used solely for the construction of said road, title to the land so sold to pass upon certificate by the governor to the secretary of the interior of completion of each ten miles of continuous construction. ^[2]

The legislature of Oregon, October 20, 1868 (Laws of Oregon, 1868, p. 3) accepted the grant, ^[3] and by said act transferred the granted lands to the Dalles Military Road Company, which had filed its articles of incorporation March 9, 1868. June 23, 1869, the Honorable George L. Woods, then governor of the state of Oregon, made his certificate of completion of the road, ^[4] certifying to the route thereof as shown on a map, certified by the general land office. ^[5] June 18, 1874, Congress passed a statute providing for the method of transfer of title under such grants as the above (Vol. 18, U.S. Statutes at Large, p. 80, Ch. 305, of the 1st Session of the 43rd Congress, 43 U.S.C. A. sec. 862), ^[6] which evidently applied only partially herein, because prior to the date of the enactment of this statute the state of Oregon had by public act transferred its interest in said lands; in other words, by this statute as to this grant, patents would issue from the general land office to such corporation instead of from the state of Oregon, thereby necessarily contemplating subsequent transfer by the company to the individual occupants, purchasers therefrom.

May 31, 1878, the Dalles Military Road Company transferred all of the above granted lands to Edward Martin, who together with his wife, in turn, by quitclaim deed, transferred the specific section in question, February 27, 1878, to John M. Marden, whence by mesne conveyances it was transferred to respondent, who, in turn, with his wife,...