Prentice v. Duluth Storage & Forwarding Co., 252.

• Decision Date: 02 October 1893
• Docket Number: 252.
• Citation: 58 F. 437
• Parties: PRENTICE v. DULUTH STORAGE & FORWARDING CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F. 437

PRENTICE v. DULUTH STORAGE & FORWARDING CO. et al.

No. 252.

United States Court of Appeals, Eighth Circuit.

October 2, 1893

Statement by SANBORN, Circuit Judge This is an appeal from a decree quieting the title to certain lots in the city of Duluth, Minn., in the appellees, and enjoining the appellant from asserting his adverse title.

The treaty of September 30, 1854, which was approved January 29 1855, between the United States and the Chippewa Indians of Lake Superior and Mississippi river, contained this stipulation: 'It is agreed that the chief Buffalo may select one section of land at such place in the ceded territory as he may see fit, which shall be reserved for that purpose and conveyed by the United States to such person or persons as he may direct.' Immediately after the treaty was signed, and on the same day, Chief Buffalo signed a written instrument, which, after reciting this clause of the treaty, contains the following declaration: 'I hereby select a tract of land one mile square, the exact boundary of which may be defined when the surveys are made, lying on the west shore of St. Louis bay, Minnesota territory, immediately above and adjoining Minnesota point; and I direct that patents be issued for the same according to the above recited provision to Shaw-Bwaw-Skung or Benjamin G. Armstrong, my adopted son; to Matthew May-Dway-Gon, my nephew; to Joseph May-Dway-Gon and Antoine May-Dway-Gon, his sons, one quarter section to each.'

This instrument was deposited in the office of the commissioner of Indian affairs, February 20, 1856. On September 17, 1855, the other beneficiaries under this instrument conveyed all their right, title, and interest therein or thereunder to Benjamin G. Armstrong, and directed that all patents for lands to which they might have been entitled according to the directions of Chief Buffalo should issue to him. On September 11, 1856, Armstrong and his wife made a deed to the appellant of the undivided half of a tract of land described thus 'Beginning at a large stone or rock at the head of St Louis river bay, nearly adjoining Minnesota point; commencing at said rock and running east one mile, north one mile, west one mile, south one mile, to the place of beginning, and being the land set off to the Indian chief Buffalo at the Indian treaty of September 30, A. D. 1854, and was afterwards disposed of by said Buffalo to said Armstrong, and is now recorded with the government documents.'

The deed was executed in the state of Wisconsin. It was acknowledged before a justice of the peace. The statutes of Minnesota territory required a deed thus executed to have attached to it a certificate of the clerk or other proper certifying officer of a court of record of the county or district where the deed was executed that it was executed and acknowledged according to the laws of the state in which it was executed, in order to entitle it to record. Rev. St. Minn. 1851, c. 46, §§ 8-10, 23. This deed had no such certificate, but it was recorded in the office of the register of deeds of St. Louis county, November 4, 1856. On the day the deed was made, the appellant, Prentice, made a written agreement with Armstrong that in consideration of this deed to would furnish the latter what money or provisions might be necessary to enable him to go upon and erect a house on this land, to furnish what provisions should be necessary for his family while he was employed on the land, to take the general supervision of the whole tract, to pay all expenses of litigation about, and to do all in his power to perfect, the title of said land, and, when the title should be perfected, to get the land platted, and assist Armstrong in selling his interest. Armstrong agreed on his part to remove into the house and reside there as long as should be required to make such improvements as they thought necessary. This contract contains the same description found in the deed. Armstrong never built the house or resided on the land, and there was a substantial failure of both parties to do anything concerning the land or its title in accordance with this contract.

That portion of the description in the deed which gives the metes and bounds was written by the scrivener at the dictation of Armstrong, and the remainder of it at the dictation of the appellant. The rock mentioned in this description is well identified. It stood near the west shore of St. Louis bay, a short distance southwesterly from the base of Minnestota point, and was a well-known landmark. The mainland at the base of Minnesota point rises rapidly for the distance of a mile. The mile square bounded by the courses and distances given in the deed would extend across the base of Minnesota point and 'adjoin' it, but it would not cover any of the lots here in dispute, or any of the land subsequently patented to the beneficiaries under the treaty, and nearly one-half of it would be under the waters of Lake Superior. If the first course read west and the third course east in this description, a mile square would be described which would not 'adjoin' Minnesota point, which would depart from the shore of the bay except at one corner, but which would cover about half the land subsequently patented to the beneficiaries, and the lots involved in this suit. All these lands were situated in St. Louis county, Minnesota territory, and Armstrong had no interest in any other land than that to which he was entitled under the treaty when he made this deed. He then supposed the mile square specifically described in his deed was the section Buffalo had selected. The government survey of these lands was not then made, and, when made in 1857, the surveyed lines did not correspond with the courses named in this deed, and the lands adjoining Minnesota point and extending up the hill from it were claimed by traders who were in possession of them. Thereupon the officers of the department of the interior selected 662.62 acres of land in four tracts adjoining each other, and all lying east, and within two miles, of a north and south line passing over the rock. These tracts did not form a mile square in compact form, and none of them adjoined Minnesota point, but on October 23, 1858, the United States issued patents to these four tracts in severalty to the four beneficiaries named by Chief Buffalo in satisfaction of the treaty stipulation.

On March 13, 1859, the patentees of these lands, other than Armstrong, executed deeds of conveyance of the lands respectively patented to them to Charlotte Armstrong, the wife of Benjamin G. Armstrong, and these deeds were recorded in St. Louis county, May 17, 1859. On October 22, 1859, Armstrong and his wife conveyed an undivided half of all these lands to Daniel S. Cash and James H. Kelly, by warranty deed. On August 31, 1864, Armstrong and his wife 'remised, released, and quitclaimed' the undivided half of all these lands to John M. Gilman by a deed which was duly recorded in St. Louis county, September 12, 1864. Mr. Gilman paid a valuable consideration for this conveyance, and had no actual notice of the deed to appellant, or that he claimed any of this land, until 1870. The appellees are immediate or remote grantees of Mr. Gilman. Their lots are either occupied by them, respectively, or are vacant, and they are not held by them jointly, but in severalty. The lands described in the deed to Mr. Gilman are in the city of Duluth. More than 500 buildings, including railroad depots, hotels, wholesale houses, and residences, stood upon this land when this action was commenced. The appellant was never in possession of any of this land, never demanded possession of any of it until 1883, and never paid any taxes upon it. On August 27, 1872, Armstrong and wife assigned and quitclaimed all their right, title, and interest in these lands to the appellant. In 1883 he brought an action of ejectment for the undivided half of part of these lands which were held by the defendants in that action under the deed to Mr. Gilman, and after a trial of the merits Mr. Justice Miller ordered judgment for the defendants. Prentice v. Stearns, 20 F. 819. This judgment was affirmed by the supreme court in 1885. 113 U.S. 435, 5 S.Ct. 547. In 1890 another action of ejectment for another portion of these lands held under the same title was tried before Mr. Justice Miller with the same result. Prentice v. Railroad Co., 43 F. 270.

In 1890, two of the appellees filed the bill in this case on behalf of themselves and all others similarly situated who should become parties to the suit to quiet the title of their common grantor, Mr. Gilman, to the lots the appellees held and to enjoin the appellant from prosecuting any claim to said lots by suit or otherwise. The bill alleged the jurisdictional facts, the title of Mr. Gilman to the undivided half of the 662.62 acres, and that the appellees had succeeded to his title to certain lots which are a part of those lands, and that they held these lots in severalty. It also set forth the deed to the appellant, alleged that none of the lands conveyed to Mr. Gilman were described in that deed, but that the appellant claimed to be the owner of the undivided half of them under it; that he had never taken possession of any of the lands, and that they were all in the possession of those claiming under Mr. Gilman, or vacant and unoccupied. The bill then set forth the actions of ejectment the appellant had brought, and that he threatened to bring a large number of separate actions against different persons claiming to own lots in severalty under the Gilman deed. After the commencement of this suit more than 500 persons similarly situated to the complainants became parties complainant. The defendant demurred to the bill, and his demurrer was overruled. The...