Knight v. Leary

• Decision Date: 14 March 1882
• Citation: 11 N.W. 600,54 Wis. 459
• Parties: KNIGHT v. LEARY.
• Court: Wisconsin Supreme Court

54 Wis. 459

11 N.W. 600

KNIGHT

v.LEARY.

Supreme Court of Wisconsin.

Filed March 14, 1882.

Appeal from circuit court, La Fayette county.

Ejectment to recover the S. E. 1/4 of the N. E. 1/4 of section 27, township 2, range 3 east, in the county of La Fayette. Complaint in the usual form. The answer of the defendant contains-- First, a general denial; second, averments that the defendant holds the legal title to the land claimed in trust for the widow and three minor children (naming them) of Timothy Leary, deceased, who are in possession of the land; and, third, that there is a defect of parties defendants in that the said widow and her children are not made parties to the action. The answer also contains a counter-claim in which it is alleged that the defendant, his grantors, and the beneficiaries for whom he holds the land in trust, have been in the peaceful adverse possession continuously from 1852 to the present time under claim of title founded upon an entry from the United States, and of absolute deeds of conveyance duly of record in the register's office of the proper county, all which was well known to the plaintiff before he acquired the pretended title under which he claims the land.

It is further alleged that in 1878 the plaintiff, conspiring with persons unknown to the defendant, and with intent to cheat and defraud the defendant and said prior purchasers and beneficiaries, fraudulently obtained and placed on record in said county a deed of such land. Also, without like knowledge, conspiracy, and intent, the plaintiff, in 1879, fraudulently made an entry of and procured a patent for the land from the United States, and placed the same on record in said register's office. The relief demanded in the counterclaim is that the pretended entry, patent, and deed be adjudged fraudulent and void as against the defendant and said beneficiaries; that the same be cancelled and annulled; and that the defendant be adjudged the owner of the land in trust as aforesaid. A reply denying the allegations contained in the counter-claim was interposed by the plaintiff. The undisputed evidence given on the trial proves that when the action was brought the defendant was in the possession of the land claimed, and that he held such possession under a deed executed by one Doty and his wife in 1865, purporting to convey the land to him in fee. Also that Timothy Leary paid the consideration expressed in the deed, and occupied the land until his death, in 1873. After his death the defendant cultivated the land, and from time to time delivered or paid to the widow of Timothy portions of the proceeds thereof. Neither the plaintiff nor any person through whom he claims title to the land was ever in the possession of it. The evidence of title is stated in the opinion. The circuit judge directed the jury to find for the defendant, and they returned a verdict accordingly. The plaintiff appeals from the judgment entered pursuant to the verdict.Orton & Osborne, for appellant.

Magraw & O'Keefe, for respondent.

LYON, J.

The following facts relating to the title to the land in controversy are established by the proofs: December 1, 1852, one Jefferson Cutler located military land-warrant certificate No. 19,610 on 160 acres of land in section 27, township 2, range 3 east, in the county of La Fayette. This location was originally entered in the tract book kept in the proper local United States land-office as being upon the E. 1/2 of S. E. 1/4, the S. W. 1/4 of S. E. 1/4, and the S. E. 1/4 of S. W. 1/4 of that section. The certificate of such location issued to Cutler by the register of such land-office, and the monthly abstract for December, 1852, of such location, contains the same descriptions of the land thus located, as does also the patent issued by the United States to Cutler two years later. Subsequently to the making of the original entry in the tract book, the same was altered by erasing “south-west,” where it last occurs in the description, and interlining over the same “north-east,” so that the description of the last tract read “the south-east qr. of the north-east qr.,” which is the land in controversy. When this alteration was made, by whom, under what circumstances, or by what authority, does not appear. The tract book remained in this altered condition until April 5, 1878, when it was again altered by restoring the original description of the lands located by and patented to Cutler.

At some time, probably intermediate the first alteration of the tract book and the last alteration thereof, a document, purporting to be a certified copy from the records of the United States local land-office above-mentioned, showing by whom each tract of land in the county of La Fayette was entered from the United States, was recorded in the office of the register of deeds of that county, in a volume known as the United States entry book. This record shows that on December 1, 1852, Jefferson Cutler entered the S. E. 1/4, (160 acres,) the N. E. 1/4 of S. W. 1/4, and S. E. 1/4 of N. E. 1/4 (80 acres) of said section 27. The last description is the land in controversy.

The defendant put in evidence this record in the office of the register of deeds, and it is the only evidence in the case tending to show that Cutler, or any grantee of his, ever acquired title to the land from the United States. In January, 1864, Cutler and wife conveyed the land in controversy to one Doty, and in November, 1865, Doty and wife conveyed the same to the defendant. Both conveyances contain the usual covenants of seizin, and of warranty against encumbrances.

The plaintiff's claim of title is founded upon the following facts: January 10, 1878, one John Nance executed to Charles D. Gilmore a power of attorney, irrevocable, authorizing the latter to locate the additional homestead of Nance, under certain acts of congress, on the land in controversy, and to sell and convey the same for such sum as he might deem proper, and to execute deeds therefor in the name of Nance and wife, with or without covenants of warranty. The instrument also contains the usual power of substitution. By a writing indorsed on such power of attorney and dated March 13, 1878, Gilmore substituted Wendel A. Anderson in his place to execute the intendments of such instrument. On May 3, 1878, Nance and wife, by Anderson, as their attorney in fact, conveyed the land in controversy to the plaintiff by deed of warranty containing all of the usual covenants. January 23, 1879, the United States patented the land to Nance. This patent is headed “Homestead certificate No. 3,871--application 7,816,” and contains the following recital: “Whereas, there has been deposited in the general land-office of the United States a certificate of the register of the land-office at La Crosse, Wisconsin, whereby it appears that, pursuant to the act of congress approved twentieth of May, 1862, ‘to secure homesteads to actual settlers on the public domain,’ and the acts supplemental thereto, the claim of John Nance has been established and duly consummated in conformity to law for the S. E. 1/4 of the N. E. 1/4 of section 27,” etc.

After the above general statement of the various conveyances and instruments affecting the title to the land in question, we proceed to consider and determine the questions presented in the record, and argued by the respective counsel.

1. The defendant's claim of title will first be considered. It is scarcely necessary to say that the alleged adverse possession of the land by the defendant and his grantors, or by Timothy Leary and his heirs, does not strengthen the defendant's claim of title, for no adverse possession is operative against the government. The defendant can be in no better position to assert title by virtue of an adverse possession for 10 or 20 years, founded upon the deed from Cutler to Doty, and from Doty to himself, than he would have been had the land remained vacant and unoccupied until entered or located by Nance. The defendant's claim of title, therefore, is founded alone upon the record in the office of the register of deeds of La Fayette county of the alleged transcript from the United States land-office, which shows on its face that the land in controversy was entered by Cutler. It is supposed that there is some statute which authorizes this record, and makes it competent evidence, although we have not been referred to it, and have been unable to find it. No objection for incompetency was made against the admission in evidence of that record, and it is assumed that it was properly admitted.

The date of the alleged entry by Cutler, contained in that record, and the fact that the entry covers portions of the same land upon which Cutler located his bounty land-warrant, satisfactorily show that the transcript so recorded was intended to be a transcript from the tract book in the land-office of Cutler's location of his land-warrant No. 19,610. By the introduction of the certified copy of the tract book, the transcript recorded in the office of the register of deeds is proved erroneous in several particulars. Of course the entries in the tract book must control when it is made to appear that the recorded transcript therefrom is inaccurate. But, in respect to the land in question, the recorded transcript is a correct copy of the tract book as the same was after the first alteration thereof, above mentioned, had been made. Hence the effect of that alteration upon the title must be determined. The evidence leaves no room to doubt that Cutler located his warrant upon the S. E. 1/4 of the S. W. 1/4 of section 27, and not upon the S. E. 1/4 of the N. E. 1/4 of that section, which is the land in controversy. Undoubtedly such was the original entry in the tract book. This is abundantly, indeed conclusively, proved by the descriptions in the certificate of location issued at the time, in the monthly abstract, and in the patent issued to Cutler.

In the absence of any...