Empey v. Plugert

• Decision Date: 01 December 1885
• Parties: EMPEY v. PLUGERT.
• Court: Wisconsin Supreme Court

64 Wis. 603

25 N.W. 560

EMPEY

v.PLUGERT.

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Langlade county.Grace & Alban, for appellant, William James Empey.

Neal Brown, for respondent, Ernest Plugert.

ORTON, J.

It is substantially alleged in the complaint that the plaintiff settled upon the land in dispute as a homestead claimant under the laws of the United States, paid the amount required by law, and complied with the requirements of the law by continued residence and cultivation, so as to entitle him to the final certificate therefor, and that he presented to the land-office authorities due proof of the same; and that by a final decision of the secretary of the interior upon such proof he was denied the right to said certificate; but that he has remained and still is in the possession and occupancy of said land. In respect to the defendant it is alleged that he entered upon said land by force, regardless of the right of the plaintiff as aforesaid, and paid the amount required to be paid by a homestead claimant of said land, and obtained a certificate therefor, and now claims that he is entitled to all the rights of a homestead claimant thereof, and that at the proper time he will be entitled to a patent of the United States to the same. It is further alleged that when the said plaintiff presented his proofs for the purpose of obtaining the final certificate for said land as aforesaid, the said defendant contested his right to the same, and by perjury and fraud in his evidence caused the secretary of the interior to decide against the claim of the plaintiff so made and proved, and to declare said claim void, and to cancel the same, and thereupon made said forcible and fraudulent entry upon said land, and by fraud and perjury obtained a certificate therefor as aforesaid. This land belongs to the United States, and was subject to homestead settlement under the laws thereof, and the title still remains in the United States, subject to the claim of the plaintiff as aforesaid; and the plaintiff in effect alleges that he has done everything, and performed every requirement of the law, to entitle him to a patent therefor. The prayer is that the defendant be adjudged to release to the plaintiff all his claim to said land, and that the plaintiff have judgment that he has complied with the homestead law, and that he is entitled to said land. The circuit court sustained a general demurrer to the complaint, as we suppose, although other causes of demurrer than that the complaint does not state facts sufficient to constitute a cause of action are stated therein; such as a want of parties, and that there is an adequate remedy at law. From the order sustaining such demurrer this appeal is taken.

If the courts of this state have jurisdiction in such a case, it is not perceived what effectual remedy could be administered. There has been an adjudication of the land-office department against the claim of the plaintiff; and the defendant has settled on the land as a homestead claimant, and obtained the first certificate as such. That certificate gives the defendant no right to the land, and he must thereafter perform all of the conditions of the homestead law before he will be entitled to a certificate upon which the patent can be issued. The law does not provide for issuing any certificate upon such entry, but probably the rule of practice of the land-office provides for a certificate of some sort, as evidence that the homestead claimant has paid the money required, and entered on the residence and cultivation of the land preparatory to such continued residence for five years, and such cultivation as the law makes a prerequisite to the certificate upon which the patent is to issue. Section 2290, Rev. St. U. S., prescribes how the applicant may make his first entry. He makes an affidavit that he is the head of a family, or 21 years of age, or has performed service in the army or navy, and that his application is for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not for the benefit of any other person. Upon filing such affidavit with the register or receiver of the land-office, and upon payment of the money required, he is then permitted to enter the land. This is the preliminary step and the commencement in the performance of the future acts of continued residence upon, and the cultivation of, the land, and the proof thereof, as the conditions of the issuing to him of the certificate at the end of five years; or, if he has been a soldier, at the end of that time deducting his time of service in the army. Section 2291 provides that “no certificate shall be given, or patent issued therefor, until the expiration of five years from the date of such entry,” etc.

The defendant has made and filed such affidavit, and paid the initiation fee, and entered upon the settlement of the land. He is yet to secure a homestead therein by residence and cultivation. He has yet secured no right to the land, but a mere privilege or permission to enter upon it for the purpose of obtaining title to it by the performance of such conditions. He may never secure or be entitled to the land. The title still remains in the government and may so remain. First. What right or claim to said land or interest in it has he that he could release to the plaintiff according to the prayer of the complaint? Has he the possession? So has the plaintiff. If he is an intruder or trespasser without legal right, (and he has no legal right if the plaintiff is entitled to the patent of the United States, as he claims,) then the plaintiff's remedy, if he has any, is in the proper possessory action at law. The defendant's right of entry upon the land is a legal right if he has any. If he has none, then he has no right or title to release. If he has a legal right to so enter, then neither a court of equity nor of law can extinguish or cancel it, or adjudge its release to another. But if all the right the defendant claims is released to the plaintiff, it would not make his title or right any better. It is apparent that the remedy sought by this part of the prayer would be ineffectual and of no benefit to the plaintiff. If the defendant should release to the plaintiff whatever right or claim he may have, it would not give the plaintiff any better right than he had before by his settlement and cultivation of the land for the requisite time. The law does not provide for any action or adjudication upon such a preliminary entry. The land-officer decides nothing. The land may or not be subject to such entry. That is the risk of the applicant. Second. The other part of the prayer is for “judgment that the plaintiff has complied with the homestead law, and is entitled to said land.” At the proper time the plaintiff attempted to make and present his proofs of the requisite residence and cultivation of the land in order to obtain the final certificate and the patent of the United States to said land; and then it seems that his right thereto was contested, and proof was offered that he had changed his residence and abandoned said land more than six months at one time during such period, and the secretary of the interior...