Martinson v. Marzolf
| Decision Date | 09 July 1906 |
| Citation | 15 N.D. 471,108 N.W. 801 |
| Parties | MARTINSON v. MARZOLF et al. |
| Court | North Dakota Supreme Court |
A decision by the Commissioner of the General Land Office, in a former contest between the occupying claimant of public land and a contestant, canceling the claimant's homestead entry for alleged abandonment, which decision became final by reason of the entryman's failure to appeal, is not a conclusive adjudication that the defeated occupying claimant had no right to the land as against a subsequent homestead applicant, who was not a party to the first contest or in privity with the successful contestant.
It appearing that the decision canceling the occupying claimant's entry for alleged abandonment was erroneous, and that the entryman had in fact in all things complied with the requirements of the law, and had not in fact abandoned his claim, and the successful contestant not having exercised his preference right, a stranger to that contest proceeding whose application to enter the land as a homestead had been accepted while the occupying claimant's entry appeared canceled of record, acquired no equitable right to the land by such entry.
Appeal from District Court, McLean County; W. H. Winchester, Judge.
Action by Martin Martinson against George Marzolf and others. Judgment for defendants, and plaintiff appeals. Affirmed.
See 103 N. W. 937.Hanchett & Wartner, for appellant. Gooler & Goer, for respondents.
The court below sustained a demurrer to the complaint on the ground that no cause of action was stated therein. The plaintiff declined to amend, and judgment was entered dismissing the action. This appeal is from that judgment.
The defendant Marzolf is in possession of the quarter section of land in suit, and has the legal title thereto by virtue of a patent issued to him by the United States. The plaintiff asserts that he was rightfully entitled to receive the title from the government, but that Marzolf wrongfully secured the patent through the erroneous rulings of the federal land office officials as to the relative rights of the parties. The relief prayed for is that plaintiff be adjudged to be the equitable owner of the land, and that the legal title acquired by Marzolf be conveyed to plaintiff. We think the complaint shows affirmatively that the plaintiff has no right to the land. The complaint is too long for repetition. We shall state only those facts alleged therein which, in our opinion, show that the plaintiff has no cause of action. On January 12, 1898, Marzolf filed a homestead entry for said land at the Devils Lake land office. In August, 1899, one Malinda Lind instituted a contest against Marzolf's entry, charging abandonment by the entryman. Marzolf appeared personally and by attorney in that contest, and evidence in his behalf was submitted. When the contest reached the Commissioner of the General Land Office, that official ordered that Marzolf's entry should be canceled, holding that the evidence showed abandonment. Marzolf's attorney was notified of the commissioner's decision. Marzolf did not appeal from that decision, and the entry was canceled on October 29, 1901. On November 25, 1901, this plaintiff's application to enter the land as a homestead was accepted at the local land office. Marzolf was living on the land and cultivating it when Martinson filed his application therefor, and “had been residing thereon and cultivating the same continuously for a period of six months or more prior thereto.” Marzolf continued his said residence and cultivation after defendant's entry, and on June 6, 1902, instituted a contest against Martinson, praying for the cancellation of the latter's entry, on the ground that he (Marzolf) had a prior right thereto by reason of his continuous residence upon the land for four years last past and his cultivation and improvement thereof during that time. Nothing was said in the contest affidavits as to the entry which had been previously canceled; and reinstatement of such entry was not prayed for. After the evidence had been taken in the local land office in that contest, the register and receiver held that the contest should be dismissed. Marzolf appealed to the Commissioner of the General Land Office. Then for the first time an application was made to the commissioner to reinstate Marzolf's former entry, notwithstanding the decision canceling it in the Malinda Lind contest. The grounds urged for such reinstatement were that Marzolf had never been informed by his attorney in that contest of the commissioner's decision therein; that the proceedings were irregular, and that Marzolf's testimony which had been given through an interpreter, had been...
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