Parsons v. Venzke
| Decision Date | 12 December 1894 |
| Citation | 61 N.W. 1036,4 N.D. 452 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Lauder, J.
Action by Octavia J. Parsons against Gustav Venzke and others. From a judgment for defendants, plaintiff appeals.
Affirmed.
J. E Robinson and S. B. Pinney, for appellant.
When a patent for land is issued by mistake, inadvertance or other cause to parties not entitled thereto, they will be declared trustee's of the true owner. Johnson v. Towsley, 13 Wall. 72; Stark v. Stars, 6 Wall. 402; Lindsey v. Hawes, 2 Black. 554; Cornelius v Kessell, 128 U.S. 456; Widdcombe v. Childers, 124 U.S. 400; Moore v. Robbins, 96 U.S. 530; Bernier v. Bernier, 147 U.S. 242. An executive officer does not have power to forfeit land, when a qualified person makes final proof, purchase and payment therefor, in the form and manner prescribed by law, and when the land is subject to pre-emption. Smith v. Ewing, 23 F. 741; Wilson v. Fine, 40 F. 52; United States v White, 17 F. 561; Smith v. Camp, 2 Minn. 155; Ames v. Grimes, 2 Ia. 1; Sillyman v. King, 36 Ia 307; Cady v. Eighmey, 54 Ia. 618; Brill v. Stiles, 35 Ill. 305; Aldrich v. Aldrich, 37 Ill. 32; Norton v. Blankenship, 5 Mo. 346; Mayer v. McCollough, 1 Ind. 339; Guynne v. Niswauger, 15 Ohio 368; Cornelius v. Kessell, 58 Wis. 237, 128 U.S. 456; Carroll v. Safford, 3 How. 460; Witherspoon v. Duncan, 4 Wall. 210. By entry, which includes a purchase and payment the emptor acquires a vested interest in the property. Hutchings v. Low, 15 Wall. 77; Cornelius v. Kessell, 128 U.S. 461. It is contended that under the constitution and laws of the United States, judicial power to declare penalties and forfeitures rests in the courts and not in officers of the land department. Section 536, R. S.
The pre-emption right was a preference right to purchase a quarter section of land. In the absence of congressional inhibition it was assignable. Treadgall v. Pintard, 12 How. 24; Myers v. Croft, 13 Wall. 291; Proof was made in the form and manner required by law and the rules of the land department, and to the satisfaction of the register and receiver, the land was paid for and the usual duplicate receipt obtained. After such payment Simpkins title was that of a purchaser in possession. It may have been voidable but it was not void. Brumley v. Goodrich, 40 Wis. 134; Crocker v. Balangee, 6 Wis. 643; Graham v. Ry. Co., 102 U.S. 157. Until divested of title the entry man or his grantees had a vested interest in the land. Frisbie v. Whitney, 9 Wall. 187; Hutchins v. Low, 15 Wall. 77; Risdon v. Davenport, 57 N.W. 482. A party cannot by his misconduct so forfeit a right, that it may be taken from him without judicial proceedings in which the forfeiture shall be declared in due form of law. Cooley's Const. Lim. 444; Leck v. Anderson, 57 Cal. 251; Boorman v. Santa Barbara, 65 Cal. 313.
Against a bona fide purchaser a fraudulent sale cannot be avoided. Thurston v. Blanchard, 33 Am. Dec. 700.
S. H. Snyder and Curtiss Sweigle, for respondent.
The inquiry here should be, had the commissioner or secretary the power to cancel the final certificate issued to Simpkins under the facts as disclosed by the record in the case? Vantongeren v. Hefferman, 5 Dak. 180; Swigart v. Walker, 30 P. 162; Dorcey v. McCarthy, 12 P. 104; Jones v. Meyers, 26 P. 215; Sorrenson v. Meyers, 26 P. 218; Judd v. Randall, 29 N.W. 589; Gray v. Stockton, 8 Minn. 529; Hosmer v. Wallace, 47 Cal. 461; Figg v. Hensley, 52 Cal. 299; Hestus v. Breman, 50 Cal. 211; Bellows v. Todd, 34 Ia. 31; McLane v. Bovee, 35 Wis. 27; United States v. Steenerson, 50 F. 504; Carr v. Fife, 44 F. 713; Lee v. Johnson, 116 U.S. 48; Knight v. United Land Ass'n, 142 U.S. 160; American Mortgage Co. v. Hopper, 56 F. 67. The forfeiture provided for by statute is a forfeiture of the money paid. There is no such thing as a forfeiture of the land, since the title does not vest until the final action of the land department determines the existence of the conditions necessary to that result. American Mortgage Co. v. Hopper, 56 F. 74. Plaintiff is not a bona fide purchaser, she was charged with knowledge of the law, that the final certificate did not vest the title to the land in Simpkins, and was thereby put upon inquiry to ascertain whether or not the final proof of Simpkins was made in good faith. 1 Warvelle on Vendors, 266; American Mortgage Co. v. Hopper, 56 F. 67; Randall v. Edert, 7 Minn. 359. The purchaser of an equitable title, takes at his peril and acquires the property burdened with every prior equity charged upon it. Shoupe v. Griffiths, 30 P. 93. Where the matters to be determined by the department are questions of fact, or mixed questions of law and fact, the decision of the department is final and cannot be reviewed by the court. Ard v. Pratt, 23 P. 646; Jeffords v. Hine, 11 P. 351; Ferry v. Strutt, 11 P. 571; Porter v. Bishop, 6 So. 863; Keane v. Riggers, 28 P. 653; Puget Mill v. Brown, 54 F. 987; Johnson v. Towsley. 13 Wall. 73; Shepley v. Cowan, 91 U.S. 330; Moore v. Robbins, 96 U.S. 330; Lee v. Johnson, 116 U.S. 48.
The plaintiff's theory of action, as disclosed by his complaint, is not the one that was developed upon the trial. The complaint is framed under § 5449, Comp. Laws, to try an adverse claim to plaintiff's alleged title. The pleading contains an allegation that the plaintiff is the owner in fee simple of the land in question. On the trial it appeared that the plaintiff was not the owner in fee simple; that he did not pretend to hold the legal title; but that, on the contrary, he was seeking by this action to have the defendant, who held the legal title, adjudged to be a mere trustee for the plaintiff as to such title, and to procure a decree directing defendant to convey the same to the plaintiff. The pleadings and the proof are not in harmony; but, as no point has been made touching the failure of the plaintiff to establish the cause of action he had alleged, we will consider the pleadings as amended to conform to the evidence, and turn to the latter for our guidance in determining whether the theory on which the case was tried below and argued in this court can be sustained.
The defendant holds a patent for the land. The plaintiff claims under a pre-emptor whose certificate was canceled by the commissioner of the general land office before defendant made the entry on the land under which he obtained his patent. The question which confronts us at the very threshold relates to the power of the commissioner to cancel entries which have been allowed by the officers of the local land office. In this connection a more particular reference to the facts is advisable. The entry under which plaintiff claims was made by Willis B. Simpkins, January 11, 1883. In less than a month after he had received his patent certificate, he conveyed the land to Charles J. Wolfe, who sold the land to Jessie J. Russell, by whom it was mortgaged. The plaintiff claims as a purchaser under the sale on foreclosure of this mortgage. These transfers and this mortgage were all executed prior to the cancellation of Simpkins' entry. After the cancellation of this entry, the defendant entered the land as a pre-emptor, and ultimately obtained a patent. It is the legal title under this patent which the plaintiff seeks to secure by this action. If he is correct in his premise that the commissioner had no power to cancel the entry, or, assuming his power, that we can inquire whether it was properly exercised in this case, and from that inquiry conclude that it was not properly exercised, then it follows that the defendant must be deemed to hold the legal title in trust for him, and ordered to convey such title to him. Said the United States circuit court of appeals in a recent case: "No principle is more firmly established in American jurisprudence than that, after the title has passed from the United States to a private party, it is the province of the courts to correct the errors of the officers of the land department which have resulted from fraud, mistake, or erroneous views of the law; to declare the legal title to the lands involved to be held in trust for those who have the better right to them; and to compel their conveyance accordingly." Bogan v. Mortgage Co., (May term 1894; 8th Circuit) 11 C.C.A. 128, 63 F. 192. To same effect, see Bernier v. Bernier, 147 U.S. 242, 13 S.Ct. 244, 37 L.Ed. 152; Silver v. Ladd, 74 U.S. 219, 7 Wall. 219, 19 L.Ed. 138; Johnson v. Towsley, 80 U.S. 72, 13 Wall. 72, 20 L.Ed. 485.
The first inquiry is whether this power of cancellation exists. The authorities are divided upon this question, but the great weight of the adjudications supports the power, and so does the better reason. Holmes v. State, 100 Ala. 291, 14 So. 51; Judd v. Randall, 36 Minn. 12, 29 N.W. 589; Mortgage Co. v Hopper, 56 F. 67; Lewis v. Shaw, 57 F. 516; Jones v. Meyers, 3 Idaho 51, 26 P. 215; Swigart v. Walker, 49 Kan. 100, 30 P. 162; U. S. v. Steenerson, 1 C.C.A. 552, 50 F. 504; Stimson v. Clarke, 45 F. 760; Bogan v. Mortgage Co., supra; Freese v. Scouten, 53 Kan. 347, 36 P. 741; McLane v. Bovee, 35 Wis. 27; Vance v. Kohlberg, 50 Cal. 346; Hosmer v. Wallace, 47 Cal. 461; Figg v. Hensley, 52 Cal. 299; Fernald v. Winch, 50 Kan. 79, 31 P. 665; Bellows v. Todd, 34 Iowa 18. See, also, Harkness v. Underhill, 66 U.S. 316, 1 Black 316 at 316-325, 17 L.Ed. 208; Barnard v. Ashley, 59 U.S. 43, 18 How. 43, 15 L.Ed. 285; Cornelius v. Kessel, 128 U.S. 456 at...
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