Judd v. Randall

• Decision Date: 08 October 1886
• Citation: 36 Minn. 12,29 N.W. 589
• Parties: JUDD v RANDALL AND ANOTHER.
• Court: Minnesota Supreme Court

36 Minn. 12

29 N.W. 589

JUDDvRANDALL AND ANOTHER.

Supreme Court of Minnesota.

October 8, 1886.

Appeal from a judgment of the district court, Nobles county.

Geo. W. Wilson and J. A. Town, for appellant, R. M. Judd.

Daniel Rohrer, for respondents, Joseph S. Randall and another.

DICKINSON, J.

This action is for the recovery of damages for alleged breach of a covenant of seizin in a deed of conveyance from the defendants to the plaintiff. The important facts shown by the findings of the court are as follows:

In November, 1876, one Andrews entered the land as a homestead at the proper local land-office of the United States; the land being public land, subject to such entry. In November, 1878, two years after the entry, Andrews made final proof, as required by law, before the officers of the local land-office, and received the receiver's final receipt, which was then recorded in the office of the register of deeds. The ground upon which the final proof was accepted, after less than five years' residence and improvement, does not appear; but provision has been made for the commutation of homestead entries, and also for deducting from the prescribed period of five years the term of service or of enlistment of the occupant in the army or navy, and we are to presume that the final proof was sufficient, and the final certificate or receipt authorized.

On the same day on which Andrews made such final proof, and received the proper receipt, he conveyed the land to the defendant Randall, and in 1880 the defendants, who are husband and wife, sold and conveyed to this plaintiff, Judd, with covenants. In February, 1882, Judd sold and conveyed to one Tuttle, with covenants. In June, 1882, upon an affidavit and application of one Graf, presented to the commissioner of the general land-office, a hearing was ordered by that officer to be had before the register and receiver, upon the point as to whether the entry and final proof of Andrews had been fraudulent, or obtained by perjury. Such a hearing was had, and the evidence then produced was reported to the commissioner of the general land-office by the register and receiver, with a recommendation by them that the entry be canceled; and in February, 1883, the commissioner ordered Andrews' entry and final receipt to be canceled. Upon a claim by Tuttle, the plaintiff's grantee, of a failure of title, and a breach of the covenants in his deed, the plaintiff repaid Tuttle the consideration paid by the latter for the land.

The conclusion of the learned judge now under review, denying a right of recovery, is based upon his decision that the action of the officers of the land department, assuming to annul and cancel Andrews' entry, and the proceedings resulting...