Love v. Flahive

• Decision Date: 18 December 1905
• Citation: 83 P. 882,33 Mont. 348
• Parties: LOVE v. FLAHIVE et al.
• Court: Montana Supreme Court

83 P. 882

33 Mont. 348

LOVE v. FLAHIVE et al.

Supreme Court of Montana

December 18, 1905

Appeal from District Court, Missoula County; F. C. Webster, Judge.

Action by Edward H. Love against Annie Flahive and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Toole & Bach and Chas. E. Pew, for appellant.

E. E Hershey and Woody & Woody, for respondents.

BRANTLY C.J.

This action was brought to obtain a decree declaring the defendant Annie Flahive trustee for the benefit of the plaintiff of the legal title to the E. 1/2 of the S.E. 1/4 of section 22 township 20 N., of range 26 W., in Missoula county. The defendant Lansing is made a party because he appears of record as a holder of a mortgage upon the property from his codefendant. The debt secured by this mortgage is alleged to have been paid, except a small balance. The district court sustained a general demurrer to the complaint, and, plaintiff declining to amend, entered judgment for the defendants. Plaintiff has appealed from the judgment.

The complaint is prolix, and contains much matter that is immaterial. The pertinent facts, as they appear from its allegations and the exhibits attached to and made a part of it, are substantially as follows: In May, 1882, the plaintiff, being a citizen of the United States and qualified to acquire a homestead upon the public domain under the federal homestead laws, settled upon the E. 1/2 of the N.E 1/4 of section 27, township 20 N. of range 26 W., and built a house thereon. He claimed this land, and also the land in controversy immediately to the north. He fenced it all except the north 20 acres of the disputed portion. One Michael Flahive, the husband of the defendant Annie Flahive then worked for him and built the fence. The land had not been surveyed. In October, 1884, Michael Flahive made settlement on the N.W. 1/4 of the S.E. 1/4 of section 22. He built a house thereon, and thereafter claimed the whole of that quarter of the section as his homestead. He was also qualified to acquire a homestead under the laws of the United States. He retained possession of the west half of the quarter section, and also of the unfenced portion of the east half, and cultivated it. The official survey was made in 1886, but the plat was not approved and filed in the local land office until December 11, 1888. On January 2, 1889, the plaintiff executed the papers necessary to enter the land claimed by him. On January 16th Flahive executed the papers necessary to enter the S.E. 1/4 of section 22. It does not appear distinctly from the allegations of the complaint when the applications were tendered to the officers of the local land office. However the fact may have been, in the subsequent controversy between the parties as to which of them was entitled to enter the land in dispute, these officers found and declared that the entries were tendered simultaneously, and by a decision made on August 20, 1890, fixed the date as June 14, 1889, and, inasmuch as the plaintiff appeared to have been the first settler, recognized his claim, permitted him to make the entry, and rejected Flahive's application as to the disputed portion. This decision was, upon successive appeals to the Commissioner of the General Land Office and the Secretary of the Interior, affirmed; the decision of the Secretary of the Interior being rendered on January 12, 1894. In the meantime Flahive died. The defendant Annie Flahive, his widow, thereupon filed a motion for a rehearing; the ground alleged being that subsequent to his settlement in 1882 the plaintiff had, by a sale, parted with his interest in the portion of section 22 in controversy to one Rundall, who in turn had sold to Flahive, with the result that the plaintiff's right to entry was subject to that of her husband, Flahive. The rehearing was granted, and the matter referred to the local officers for proof. Again the decision of these officers was in plaintiff's favor. Upon final appeal to the Secretary of the Interior this decision was reversed, and the rights of the defendant Flahive held superior to those of the plaintiff. This decision was rendered on December 26, 1896. A motion for rehearing by the plaintiff on the ground that the records of the local land office showed that his application for entry was in fact made prior to that of Flahive, and as early as April 5, 1889, was denied on March 15, 1897. Thereupon Flahive's entry was allowed, and patent issued to Annie Flahive. In making the decision of December 26, 1896, the Secretary of the Interior had before him evidence from which he found that subsequent to the date of plaintiff's entry in 1882 he had sold his interest, whatever it was, in the land in dispute to one Rundall, who in turn sold it to Flahive, and held that, such being the case, and the two entries having been tendered simultaneously, the Flahive application should be givn preference. By the motion for rehearing by plaintiff there was submitted the question whether, upon the records, the application for entry by the plaintiff had not in fact been made prior to June 14, 1889, and as early as April 5, 1889. It does not appear from the allegations of the complaint that such was the case, nor that the finding by the officers of the local...