Harmon v. Clayton

• Citation: 50 N.W. 541,51 Iowa 36
• Parties: HARMON v. CLAYTON ET AL.
• Decision Date: 26 April 1879
• Court: United States State Supreme Court of Iowa

51 Iowa 36

50 N.W. 541

HARMON

v.CLAYTON ET AL.¹

Supreme Court of Iowa.

April 26, 1879.

Appeal from circuit court, Dallas county.

This action was originally brought at law to recover possession of the N. 1/2 of the N. W. 1/4 of section 23, township 81, range 28. Upon the answer and cross-petition of the defendants, the cause was transferred to the equity docket. The court found that the plaintiff is the owner of the land in controversy, and quieted his title thereto. The defendants appeal. The material facts are stated in the opinion.I. N. Kidder, for appellants.

D. W. Woodin and Nourse & Kauffman, for appellee.

DAY, J.

The plaintiff claims the land in controversy in virtue of a patent from the United States. The defendants claim it in virtue of an act of congress approved May 15, 1856, making a grant of lands to the state of Iowa to aid in the construction of certain railroads and an amendment thereof approved June 2, 1864. The land is without the 15-mile limit of the act of 1856, but is within the 20-mile limit of the act of 1864. The facts relating to the claims of the respective parties are as follows: On the 5th day of July, 1855, Thomas Jones located the entire N. W. 1/4 of section 23, township 81 N., of range 28 W., with military bounty land-warrant No. 7,687. On the 8th day of February, 1856, this entire entry was canceled because the S 1/2 of said quarter section had previously, to-wit, June 15, 1855, been sold to Alfred Frost. On the 8th day of August, 1857, Thomas Jones applied to the register of the land-office at Des Moines to enter or locate the N. 1/2 of said quarter section. The facts being reported to the commissioner of the general land-office, he directed that Jones be permitted, within 60 days from the receipt of notice to that effect, to locate the N. 1/2 of said quarter with a land-warrant duly assigned, or to enter it with money. On the 31st day of August, 1857, J. B. Stewart, as the agent of Thomas Jones, and pursuant to instructions from him, presented at the office of the register of the United States land-office, at Des Moines, military bounty land-warrant No. 34,261, for the purpose of locating the land in controversy for Jones, and received a register's certificate of location in the usual form. In the presence of Stewart, at this time, there was entered upon the platbook, over the tract in controversy, the following: “L. L. W 34,261.” These letters and figures indicate that the tract was located with military bounty land-warrant No. 34,261. It is the duty of the officer to make an entry upon the platbook when the location is made. Afterwards the location is placed upon the land-warrant abstract, and is posted upon the tract-book. The register and receiver make monthly returns, with the landwarrants located, to the commissioner of the general land-office. From some neglect or omission in the office of the register, no entry of the location was made, except that upon the plat-book, and the warrant was never received at the office of the commissioner of the general land-office, so that the books of that office showed nothing as to the location of the land in controversy. On the 31st day of August, 1857, J. B. Stewart advised Thomas Jones of the location in question, and transmitted by letter the register's certificate. On the 1st day of April, 1858, Thomas Jones conveyedthe land in controversy to Martha Simmons. On the 18th day of August, 1869, Martha Simmons conveyed said land to the plaintiff. The plaintiff and his grantors have paid the taxes on the land from the year 1856 to 1876, both inclusive. J. B. Stewart had the transaction relative to the location of the warrant in question with one Moore, the register's clerk, in the absence of the register, Moore being in charge of the office, and it being, as the testimony shows, his duty to perform the duties usually performed by the register. On the 23d day of October, 1867, the register transmitted to the commissioner of the general land-office lists of the lands selected for the Cedar Rapids & Missouri River Railroad, under the act of June 2, 1864, containing the land in controversy, and accompanied the lists with a memorandum showing the entry made on the plat-book over the land in question. On the 2d day of January, 1873, the commissioner of the general land-office advised the register and receiver at Des Moines that the tract...