Hensen v. Merton
| Decision Date | 09 February 1920 |
| Docket Number | 4091. |
| Citation | 187 P. 1017,57 Mont. 231 |
| Parties | HENSEN v. MERTON. |
| Court | Montana Supreme Court |
Appeal from District Court, Blaine County; John W. Tattan, Judge.
Action by William R. Hensen against Lawrence Merton. Judgment for plaintiff, and defendant appeals. Reversed.
John W Stanton, of Great Falls, for appellant.
Norris & Hurd, of Great Falls, for respondent.
The complaint herein is entitled "Bill in Equity," from which it appears that respondent made application, at the United States land office at Havre, Mont., for 120 acres of land, on what is familiarly known as "soldiers' scrip," which he secured by mesne conveyance from Darius Walton, Jr., and John Walton, the sole heirs at law of one Darius A. Walton. The complaint alleges:
That by virtue of section 2306 of the Revised Statutes of the United States (U. S. Comp. St. § 4594) the said Darius A. Walton became entitled to a soldier's additional bounty land right, which was assignable; that Walton had not been heard of for more than seven years, and is believed to have died about 1890, and left surviving him "no widow, and the aforesaid John and Darius A. Walton, Jr., as his sole and only heirs at law"; that the Department of the Interior refused to give force and effect to the assignments, which action of the department was illegal; and that appellant knew of the rights of the respondent, but was permitted to enter the land, and finally to receive a patent therefor. The complaint further alleges that respondent is the equitable owner of the land by reason of his filing, and that appellant holds the naked legal title as trustee for respondent. This appeal is from a judgment in favor of respondent.
Appellant urges that the complaint does not state facts sufficient to constitute a cause of action, for two reasons:
Section 6532 of the Revised Codes provides that the complaint must contain:
"A statement of the facts constituting the cause of action, in ordinary and concise language."
That facts are to be pleaded, and not conclusions, nor evidence from which facts might be inferred, is an elemental rule of pleading. The allegations of paragraphs III and IV, quoted, are not statements of fact at all, but merely a recitation of what the pleader says is disclosed in the records of the General Land Office.
The complaint must be verified by the affidavit of the party to the effect that the pleading is true of his own knowledge, except as to matters alleged on information and belief. In this instance the affidavit of respondent, as to matters vital to his case, is merely that "the records of the General Land Office show" certain things, of the truth or falsity of which, as a matter of fact, he asserts neither knowledge nor belief.
Respondent was seeking to establish equitable title in himself and to require the execution and delivery to him of a deed for the property. In order to prevail it was incumbent upon him to show such equities in himself as would control the legal title in the hands of appellant. Gebo v. Clarke Fork Min. Co., 30 Mont. 90, 75 P. 859. The complaint, then, must allege such facts as will connect respondent with the original title from the government. In order to do so, he must therein state such facts as will bring Darius A. Walton, and those holding under him, within the provisions of sections 2304 to 2307 of the Revised Statutes of the United States (U. S. Comp. St. §§ 4592-4594, 4602). Section 2304 (section 4592) provides:
"That every private soldier and officer who has served in the army in the United States during the recent Rebellion for ninety days and who was honorably discharged and has remained loyal to the government" is entitled to enter homestead...
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