Godkin v. Cohn

• Decision Date: 03 May 1897
• Docket Number: 307.
• Citation: 80 F. 458
• Parties: GODKIN v. COHN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

80 F. 458

GODKIN v. COHN et al.

No. 307.

United States Court of Appeals, Seventh Circuit.

May 3, 1897

This is a bill in equity, filed in the court below by John Godkin the appellant here, as complainant, which stated, in substance, the following facts: On June 10, 1896, Crosier Davidson, being the owner of military land warrant numbered 93,834, issued by the United States under the act of congress of March 3, 1895, applied at the United States land office at Stevens Point, in the state of Wisconsin, to locate in satisfaction of the warrant all that portion of section 12 in township 41 N., range 9 E., lying north of the east and west center line of the section, and east of the lake which indents the northern portion of the section (called for brevity the 'northeast quarter' of the section although the land covers all of that quarter section and some other land lying in the northwest quarter section between the northeast quarter section and the lake). The register of receiver, upon such application, caused to be written upon the plat of the lands in their office, and upon the lands so designated by Davidson, the following: 'Land Warrant No 93,834. Act. 1855. R. and R. No. 10,577. June 10 1869,'-- and thereupon filed an application for such location, signed by Davidson, certified and attested by the register and receiver in the usual form of such applications, and asserting that the location was correct, and in accordance with law and instructions (referring to the instructions of the commissioner of the general land office issued May 3, 1855, which, among other things, contained the following: 'Each warrant is to be distinctly and separately located upon a compact body of land '). The following is a plat of section 12:

(Image Omitted) The numbers of the lots as noted upon the plat in the general land office are marked in red ink; as they appear upon the plat in the local land office in blank ink. The land inclosed by the red lines is a compact body of land, upon which Davidson designed to locate under the land warrant, and the land which the register and receiver understood he had located under such warrant, and which they intended to describe in his application, and to certify as being located. These lands contained two full 40-acre lots, and, adjoining upon the west, two fractional lots, running westerly to the shore of the lake. The northerly fractional lot contained 35.50 acres and the southerly one 56.50 acres, according to the government survey. The whole of the land embraced within the red lines contained 172 acres, which, being 12 acres in excess of the quantity of land to which Davidson was entitled under the warrant, he was required to pay and did pay to the register and receiver, in cash, the government price for the excess of 12 acres, and took a receipt therefore. In the application made out by the receiver and signed by Davidson, the land was described as the 'east 1/2, northeast 1/4, and lots one (1) and four (4) of section No. 12, in township forty-one (41) north, of range nine (9) east, in district of lands subject to sale at the land office at Stevens Point, Wisconsin, containing 172 acres. ' The southerly one of the two fractional lots was described in the application as 'lot four,' instead of by its correct number, 'lot two,' through clerical error by the register of receiver, or by some clerk in their service. The application was forwarded to the general land office, and upon July 1, 1870, a patent was duly issued by the United States, conveying to Crosier Davidson lots 1 and 4, and the E. 1/2 of the N.E. 1/4 of section 12, in town 41 N., of range 9 E. The error in describing lot 2 as lot 4 arose from the error of the local land office in entering the location, and from mistakenly reporting the location and purchase as conveying lot 4 instead of lot 2. This patent has never been delivered to Davidson, or to those claiming under him, but still remains in possession of the government officers. The words, figures, and letters appearing upon the drawing are fac-similes of the original words, figures, and letters which the register and receiver caused to be written upon the government plat in their office at the time Davidson made his location; and such words, figures, and letters show that the lands embraced in the red lines were located under warrant No. 9,334, issued under act of 1855, and that the lands so located were intended to be described in the register and receiver's duplicate receipt No. 10,577, issued June 10, 1869. There is in section 12 a fractional lot 4, but it is not contiguous to or adjoining any lands in the N.E. 1/4 of the section, but appears in the drawing in the N.W. 1/4 of the S.W. 1/4 of the section; contains only 31.30 acres of land according to the government survey, and is separated from the E. 1/2 of the N.E. 1/4 lot 1 of the section by two fractional lots: so that, if the land warrant had been located in fact as described in the application and patent, the location would cover but 147.20 instead of 172 acres, and the land warrant in such case would not have been located upon a compact body of land according to the instruction of the commissioner of the general land office. By an error of some clerk in the service of the United States, lot 2 was erroneously numbered upon the government plat furnished by the United States to the register and receiver, and by them kept in the land office at Stevens Point, by entering thereon the figure 4 as its number, and a like error was made in numbering lot 4 by entering thereon the figure 2, and that appears upon the plat still preserved in the local land office now located at Wausau. Davidson and wife conveyed to Parry, Ross, and Cockburn, August 3, 1871, by warranty deed with the usual covenants. March 22, 1872, Parry, by like deed, and for a valuable consideration, conveyed his interest to Cockburn and Ross; and on August 28, 1875, Cockburn, by a like warranty deed with the usual covenants, and for a valuable consideration, conveyed his interest to Ross. On September 29, 1892, Ross likewise conveyed to Benjamin Godkin and John Godkin, and on March 17, 1891, Benjamin Godkin, by like warranty deed with the usual covenants, and for a valuable consideration, conveyed to John Godkin, the complainant and appellant. All the grantors, and grantees, intended to describe in their several deeds the land applied for and intended to be entered by Davidson, and intended that the same should be conveyed by each of these deeds; but, misled by the error and mistake charged, and following the description given to the lands by the receiver and register, described as lot 4 the southerly lot of the two lots west of the E. 1/2 of the N.E. 1/4, instead of describing it as lot 2. Assessors of the state of Wisconsin, whose duty it was to enter taxable real estate upon their assessment rolls in regular order as to lots and blocks, sections and parts of sections, up to and including the year 1877 (with the exception of the year 1876, assessed the property according to the description that appears in the deeds. In the year 1876 there was no lot 4 assessed as a part of the N.E. 1/4 of section 12; but a lot 2 was assessed, which Ross, the then owner of the N.E. 1/4, being misled by the error of the United States officers, did not recognize by that description as part of the N.E. 1/4 of the section, and through mistake, and by being misled, failed to pay the taxes levied in that year. For the same reason taxes assessed upon a portion of the N.E. 1/4 were unpaid in 1882; but Davidson and his grantee intended in good faith to pay the taxes in each year, and attempted so to do, and would so have done but for the fact that they did not recognize the entry of the lot in the assessment in the tax roll by any other description than lot 4. The defendant Cohn once claimed some title or interest in lot 2 under tax deed issued to one Gillett upon tax sales of lot 2 for the years 1875, in which years the legal title to lot 2 was still vested in the United States. Cohn obtained from Gillett a conveyance of lot 2 on December 29, 1891, but the complainant avers upon information and belief that Cohn did not intend to rely thereon as a title to lot 2, but bases his claim upon certain other conveyances, now to be stated. On October 20, 1885, one Dunfield applied to the local land office to purchase from the United States a fractional lot in section 12, being the N.W. 1/4 of the S.W. 1/4 of that section, the correct number of which lot is 4; but, Dunfield and the register and receiver believing that its number was 2, it was, through mistake, described as lot 2 in the entry, and purchase then made by Dunfield, and in the record of the register and receiver touching such entry and purchase, and in their report thereof to the government. The entry of Dunfield was noted upon the defective plat upon the N.W. 1/4, which upon the plat bears the number 2 instead of the correct number, 4. Dunfield designed to purchase, and in fact paid for, 31.70 acres of land,-- that being the number of acres charged against him by the register and receiver in the entry (which included other lands) as the acreage of the land erroneously described in the entry as lot 2; that amount being the correct area of lot 4 in the section according to the government survey. Thereafter, on July 30, 1886, a patent was issued by the government to Dunfield, conveying lot 2, which patent has never been delivered, but is still in possession of the government officers. Dunfield never claimed the ownership or title to any part of the N.E. 1/4 of the section, but always claimed the ownership and title to the N.W. 1/4 of the S.W. 1/4 of the section. On November 24, 1885, he sold the land to one Thomas B. Scott, since deceased, conveying it by...