McCord v. Hill

• Decision Date: 30 October 1900
• Citation: 84 N.W. 27,111 Wis. 499
• Parties: MCCORD v. HILL.
• Court: Wisconsin Supreme Court

111 Wis. 499

84 N.W. 27

MCCORD

v.HILL.

Supreme Court of Wisconsin.

Oct. 30, 1900.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by Warren E. McCord against John F. Hill to declare a trust on public land. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

This was an action asserting full equitable title from the government to the plaintiff, and seeking to charge a trust upon the defendant, who had received the patent. The complaint is very long, but may be abbreviated as follows:

On February 23, 1891, certain lands in the county of Bayfield were opened to entry. One Jacobus, under whom plaintiff claims. had settled on the land in question about January 28, 1891, and on the 23d day of February aforesaid made application to enter the same, which was rejected, for the reason that the defendant had already made application therefor by a soldier's declaratory statement. Jacobus contested, and, after a trial and a decision in his favor by the officers of the land office, on appeal a decision was rendered by the commissioner of the general land office on April 29, 1892, adjudging Jacobus to have been an actual settler prior to said 23d day of February, and prior to the filing of Hill's soldier's declaratory statement, and therefore entitled under the law to make homestead entry. Upon those hearings the character of Jacobus' settlement and residence from about February 1st to the trial, May 11, 1891, was investigated and decided as a matter of fact. Hill's soldier's declaratory statement was ordered canceled, and the register and receiver was directed to allow Jacobus to enter the land. Time for appeal from that decision having expired, Hill's declaratory statement was canceled, and on July 7, 1892, Jacobus' entry allowed. Up to 1891 the law allowed a homesteader, at any time before the expiration of the five years required for continuous residence, to make due proof of his entry, settlement, occupation, and improvement, and to commute his homestead entry into a cash entry by paying the government price of the land. This Hill did on the 20th of September, 1892, making proof of continued residence on the land for more than 19 months, which proofs were received, and the receiver's receipt acknowledging payment of $400 delivered to him, entitling him, on presentation, to receive a patent from the commissioner of the general land office. In the month of December, 1892, Jacobus sold the land outright to the plaintiff and one McLeod. Subsequent to Jacobus' settlement on the land, about February 1, 1891, but prior to his entry, on July 7, 1892, and to his attempted final proof, September 20, 1892, there had been enacted a law of March 3, 1891, providing, as a condition for commutation, that the proof must show residence and cultivation of the land for a period of 14 months from the date of the entry. This act had not come to the notice either of Jacobus or of the officers of the local land office, but on the 15th day of May, 1893, the commissioner of the general land office entered an order ex parte holding Jacobus' proofs of September 20, 1892, premature and insufficient, because only about two months had then elapsed from the date of his entry, and required that he then furnish supplemental proof, showing residence and cultivation for the 14-months period subsequent to July 6, 1892, which, of course, could not be done, no matter how complete the residence, until September, 1893. On receipt of this information, Jacobus consulted attorneys, and was advised by them to have reconveyance made to him from McCord and McLeod, and to resume his residence on the land, in order to be able to comply with the requirement of the land department. Such reconveyance was made on the 1st of September, 1893, and followed by a mortgage from Jacobus to McCord and McLeod for the amount of the purchase price which they had paid to him, and on or about September 20, 1893, the supplemental final proofs were offered. Thereupon, and about September 30, 1893, the defendant, Hill, in the language of the complaint, “filed in the general land office certain affidavits setting up and claiming that said Jacobus did not settle upon or enter said land in good faith for the purpose of making it his home, but for the purpose of speculation, and that after he had made final proof and commuted his homestead filing he sold the timber and the land, and had afterwards abandoned the land, and had abandoned the land for over six months prior to the date of said affidavits, to wit, September 30, 1893, and also filed with said affidavits the said deed from Jacobus and wife to said McCord and McLeod, and the said quitclaim deed from said McCord and McLeod to said Jacobus, and the said mortgage from said Jacobus to said McCord and McLeod, as hereinbefore stated. Thereupon, and on the 19th day of September, 1893, in accordance with a letter of the commissioner of the general land office of the 18th of November, 1893, a hearing was had on April 20, 1894, upon the questions raised by the contest and affidavits submitted by the said Hill, and said hearing having been had before the receiver and register at Ashland, Wis., the contestant, Hill, appearing in person and by his attorney, and the said Jacobus by N. B. Wharton & Sons, his attorneys. Upon said hearing the contestant called witnesses, and also was himself produced as a witness. None of such witnesses gave any testimony whatever except as to the possession, occupation, and improvement of said land by the said Jacobus and his family. No proof was given on the part of any of said witnesses or the said defendant upon said hearing in any way tending to impeach the good faith of the entry of said Jacobus, all of said testimony relating to the question whether said Jacobus had actually resided upon said land. The said Jacobus called numerous witnesses upon said hearing. All of the said testimony related entirely and exclusively to the character of the possession, occupation, and improvement of the said Jacobus upon said land, except the testimony of said Jacobus,” which was to the effect that the continuation of residence after the conveyance to McLeod was in order to protect, as far as he was able, the title which he had in good faith sold. The complaint then continues: “The plaintiff shows to the court that no evidence was given tending in any way possible to show that the said Jacobus, prior to his sale of said land to said McCord and McLeod, had any contract with them, or either of them, or with any other person or persons, to sell the said land, or tending in any way to show that he had made any contract or agreement that the title which he expected to acquire should inure to the benefit of any other person or persons except himself. No evidence was given that he had ever seen or known the said McCord or McLeod prior to about the time of his conveyance to them, and not the slightest evidence was given in any respect tending to impeach the good faith of his said entry.”

After hearing upon this contest, the register and receiver made his decision on August 9, 1894, of which the material part is as follows: “On October 6, 1893, Hill filed an application to contest Jacobus on the ground that the entryman never settled on the land in good faith, but for the purpose of speculation; that he did not reside on the land during the six months next preceding the making of his final proof, and that he had sold the land to one W. E. McCord. Letter H, of November 18, 1893, directed this office to order a hearing on the charges. The two questions to be passed upon are: (1) Did Jacobus abandon the land? (2) Was the sale of the land to McCord and McLeod a bar to the offering of supplemental proof? Upon the first point the testimony of the witnesses is extremely conflicting. It is admitted by Jacobus that he worked at his trade in Superior and Iron River most of the time during his occupancy of the land, but it seems also fairly well established by the testimony of Mrs. Jacobus and numerous other witnesses that her residence was upon the land, barring certain absences on account of sickness and visits. Their cabin and its housekeeping equipment were superior to those of most homesteaders, and the clearing, in extent and cultivation, compared favorably with that of others in the same neighborhood. After learning that supplemental proof would probably be required, Mrs. Jacobus returned to the land in February, 1893, where she remained about a week, when she returned to Iron River, and remained for some weeks while being treated for rheumatism. She made a brief visit to the cabin in March, went there again in the latter part of May, remaining two weeks, and returned for the same length of time in July. This was apparently her last stay upon the land until after supplemental proof was offered, September 20th. A small crop of vegetables and hay was raised that season as in the two years before. Upon the whole, the residence of Jacobus upon the land was fairly satisfactory until after the offering of his first proof, but it is clear that his subsequent residence was for the sole purpose of enabling him to make proof in order to secure title for his transferees. In December, 1892, about three months after making his premature proof, Jacobus sold the land to McCord and McLeod for a stated consideration of $4,250. September 1, 1893, the grantees named in the first instrument executed a quitclaim deed to same land and to Jacobus, the expressed consideration being $4,300. September 12, 1893, the day of making supplemental proof, Jacobus and wife executed a mortgage upon the land in favor of McCord and McLeod to secure a note for the amount of the stated consideration in the quitclaim deed from McCord and McLeod to Jacobus. The bare statement of facts points to the conclusion that the sale of the land in December, 1892, was absolute, and that the subsequent...