Phoenix Mut. Life Ins. Co. v. Brainard
| Decision Date | 03 March 1928 |
| Docket Number | 6245. |
| Citation | 265 P. 10,82 Mont. 39 |
| Parties | PH×NIX MUT. LIFE INS. CO. v. BRAINARD. |
| Court | Montana Supreme Court |
Appeal from District Court, Toole County; John J. Greene, Judge.
Action by the Ph nix Mutual Life Insurance Company against L. L Brainard, trustee and individually, in which defendant filed cross-complaint. From a judgment for defendant, plaintiff appeals. Affirmed.
Freeman Thelen & Frary, of Great Falls, for appellant.
Arthur F. Lamey, of Havre, and Carlton Fox, of Wallace, Idaho, for respondent.
The plaintiff, the Ph nix Mutual Life Insurance Company, has appealed from a judgment and decree quieting title to a certain tract of land, in Toole county, in defendant.
Plaintiff commenced action in July, 1926, to quiet title to the land in itself. The complaint filed alleged title in plaintiff by virtue of a foreclosure sale, followed by sheriff's deed and alleged that the defendant, L. L. Brainard, trustee and individually, claimed some right or title to the land, but has no right, title, or estate in the land. By answer and cross-complaint, defendant denied plaintiff's alleged title, and asserted title in himself, which allegation was denied by reply. The cause was tried to the court, sitting without a jury, and resulted in the judgment from which this appeal is prosecuted. Plaintiff makes but one assignment of error, to wit, that the court erred in entering the judgment, for the reason that it is contrary to and not supported by, the evidence, and, under the evidence adduced, is contrary to law.
The evidence adduced is chiefly documentary, and there is no conflict therein. The court made elaborate findings of fact, all of which are supported by the evidence. The only question before us, therefore, is as to whether, under the law applied to the facts found by the court, defendant was entitled to judgment.
From the pleadings, the evidence, and the findings of the court, the following chronological history of the tract of land in controversy is assembled:
In 1910, one J. A. Van Buskirk, a rancher and sheepman of Van, Montana, was desirous of obtaining title to the land in question and induced one Arthur F. C. Bushe, then in his employ, to make a desert land entry thereon in the United States Land Office at Great Falls, and in October of that year Bushe attempted to convey his rights therein to the wife of Van Buskirk, by quitclaim deed. Mrs. Van Buskirk thereafter filed on the land, but her entry was canceled in 1915 on the ground that she had already exhausted her rights under the Desert Land Act, and she thereupon requitclaimed to Bushe.
On April 21, 1917, Bushe received his "final certificate of entry," and, without waiting for patent, on June 16, 1917, executed and delivered to Van Buskirk a warranty deed to the land. Two days later Van Buskirk included this land in a mortgage executed to one Linke, who assigned it to this plaintiff. All of the instruments mentioned above were duly recorded in Toole county.
On this record and affidavits secured, the government instituted a contest against Bushe, Van Buskirk, and this plaintiff, for the cancellation of the "final certificate" and the entry. Plaintiff took an active part in protesting the cancellation, but without avail. The local land office declared that the transaction was a fraud upon the government and the deed to Van Buskirk but a subterfuge to accomplish that which the parties failed to accomplish by the quitclaim deed to Mrs. Van Buskirk, and thereupon rendered its decision of cancellation. From this decision Bushe and plaintiff jointly appealed to the General Land Office and from its decision to the Secretary of the Interior, where the decision was finally affirmed on May 17, 1919.
On July 5, 1919, Bushe filed upon this land as an additional homestead entry and proceeded to comply with the homestead laws.
On May 31, 1922, plaintiff commenced foreclosure proceedings on the Van Buskirk mortgage, and filed in the office of the county clerk a notice of the pendency of the action, but in neither the complaint nor the lis pendens was Bushe mentioned as a party defendant, and it does not appear that he had either notice or knowledge of the action.
On October 2, 1922, Bushe received his final certificate under his homestead entry.
On November 15, 1922, a decree of foreclosure and order of sale of the lands was entered in the foreclosure proceedings, followed, on December 15, by a sale of the property to one Moore.
Thereafter, on January 3, 1923, Bushe received patent to the land, and, in February, deeded it to defendant. Defendant, called by plaintiff, testified that he bought the land from Bushe through Van Buskirk, paying $1,800 therefor; that he did not have an abstract of title, but was an abstracter himself, and examined the records "as far back as the date of the issuance of the final certificate" on the homestead entry; that he had no knowledge that Bushe had ever made desert land entry on the tract, and did not discover the lis pendens filed in the foreclosure proceedings.
On January 11, 1924, Moore received a sheriff's deed to the land under the foreclosure sale and thereafter quitclaimed his interest therein to plaintiff. The action to quiet title in plaintiff followed, with the result above noted.
The argument of counsel for plaintiff on their assertion that the judgment is contrary to the evidence and against law falls under the following heads: (1) That the foreclosure decree is a final judgment, fair and valid on its face, and not subject to collateral attack, and is binding, "not only upon the parties of record," but also upon the respondent in this action, and thereby "any interest that Brainard * * * now claims was effectively foreclosed"; (2) that the Department of the Interior had no authority or jurisdiction to cancel the original final certificate of entry; (3) that the acts of Congress under which Bushe filed on the land do not expressly prohibit the alienation of lands prior to patent or the issuance of the final certificate; (4) that the deed from Bushe to Van Buskirk was valid; and (5) that, under our statutes, which are controlling, the after-acquired title under the Bushe patent inured to the benefit of this plaintiff.
1. The first contention is based upon res adjudicata or estoppel by judgment; no authorities are cited in support of it.
The true test of the plea of once adjudicated is identity of issues. In re Pomeroy, 51 Mont. 119, 151 P. 333. It must be made to appear that precisely the same point was in issue upon the former trial, and, although rights, even between the same parties, have once been adjudicated, the judgment is not a bar to a subsequent suit to establish title on a different claim of right. Meyendorf v. Frohner, 3 Mont. 282. Unless it clearly appears that the precise question involved in the second case was raised and determined in the former, the judgment is no bar to the second action. Russel v. Place, 94 U.S. 606, 24 L.Ed. 214; Fehringer v. Martin Drug Co., 56 Colo. 445, 138 P. 1007.
The main issue in this case, to wit, whether, under the facts adduced and the law, the title acquired by Bushe under a new filing and under a different act, after his original desert land entry had been canceled and his deed to Van Buskirk had been declared void, inured to the benefit of Van Buskirk's mortgagee, was not raised or determined in the foreclosure proceedings, and could not have been there raised, as Bushe was not made a party to the foreclosure proceedings. On this question Bushe was entitled to his day in court, and, if the foreclosure decree can be said to determine this question, Bushe's rights were determined without due process of law and in violation of the Fourteenth Amendment to the Constitution of the United States. Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 915; Scott v. McNeal, 154 U.S. 34, 14 S.Ct. 1108, 38 L.Ed. 896.
Without questioning the validity of the decree, it was not a bar to the assertion of defendant's rights in this action.
2. In support of their contention that the Department of the Interior has no jurisdiction to cancel a final certificate issued by the land office, counsel cite only the federal case of Wilson v. Fine (C. C.) 40 F. 52, 5 L. R. A. 141, in which it is said that, if the government wishes to have a certificate set aside for fraud, it must ask redelivery in the court. This decision followed Smith v. Ewing (C. C.) 23 F. 741. Certain other federal courts of like standing took the opposite view (United States v. Steenerson [C. C. A.] 50 F. 504), and in American Mortgage Co. v. Hopper (C. C.) 56 F. 67, Smith v. Ewing and Wilson v. Fine were expressly disapproved, an appeal was taken, and the decision affirmed by the Circuit Court of Appeals for the Ninth Circuit (64 F. 553), and this same Court of Appeals again upheld the jurisdiction of the Land Department in this respect in Northern Pacific Ry. Co. v. United States, 176 F. 706.
On consideration of the question raised here, under fact conditions strikingly similar to those under which the Land Department canceled Bushe's desert land entry and declared his deed to Van Buskirk void, the Department of the Interior, in 1889, through its Secretary, maintained the authority and jurisdiction of the Department to cancel such entries and certificates, and declared that it had been exercised for half a century, recognized by Congress "and its existence abundantly adjudged by the Supreme Court of the United States." 9 Dec. Dep. Int. 269. This declaration is justified by the authorities. Section 7, Act of March 3, 1891, chapter 561, 26 Stat. at Large, 1095, 1099; Comp. Stat. 1916, § 5113 (43 USCA § 165); Quinby v Conlan, 104 U.S. 420, 26 L.Ed. 800; Lee v. Johnson, 116 U.S. 48, 6 S.Ct. 249, 29...
To continue reading
Request your trial