Robinson v. Jones

• Decision Date: 22 December 1890
• Citation: 47 N.W. 480,31 Neb. 20
• Parties: FRANKLIN ROBINSON, APPELLEE, v. A. D. JONES, APPELLANT
• Court: Nebraska Supreme Court

47 N.W. 480

31 Neb. 20

FRANKLIN ROBINSON, APPELLEE, v. A. D. JONES, APPELLANT

Supreme Court of Nebraska

December 22, 1890

APPEAL from the district court for Douglas county. Heard below before WAKELEY, J.

Judgment reversed and action DISMISSED.

C. A Baldwin, and J. M. Woolworth cited, to the contention that government land could not be pre-empted in trust for another St. Peter v. Bunker, 5 Minn. 153; Randall v Edart, 7 Id., 359; Hosmer v. Wallace, 97 U.S. 575; Bohall v. Dilla, 114 Id., 47; Harkness v. Underhill, 1 Black [U. S.], 316; Myers v. Croft, 13 Wall. [U. S.], 291; Smiley v. Sampson, 1 Neb. 56; Warren v. Van Brunt, 19 Wall. [U. S.], 646; Leggett v. Dubois, 5 Paige [N. Y.], 114; R. Co. v. Durant, 95 U.S. 576; Perry, Trusts, sec. 131; 2 Story, Eq. Jur., sec. 1201 b.

A. J. Poppleton, and John W. Lytle, contra, cited, contending that Jones pre-empted the land in trust for Robinson: Perry, Trusts, secs. 127, 128, 130, 217, 367; Russell v. Jackson, 10 Hare [Eng.], 209; McLarren v. Brewer, 51 Me. 402; Seaman v. Cook, 14 Ill. 505; Farmers, etc., Bank v. King, 57 Pa. 202; Persch v. Quiggle, Id., 247; Brush v. Ware, 15 Pet. [U. S.], 104; Smith v. Wright, 49 Ill. 403; Lyford v. Thurston, 16 N. H., 399; Wormley v. Wormley, 8 Wheat. [U. S.], 421; Oliver v. Piatt, 3 HOW [U. S.], 333; Caldwell v. Carrington, 9 Pet. [Id.], 86; Wright v. Dame, 22 Pick. [Mass.], 55; Murray v. Ballou, 1 Johns. Ch. [N. Y.], 566; Ryan v. Doyle, 31 Iowa 53; Smith v. Walser, 49 Mo. 250; Sayre v. Townsend, 15 Wend. [N. Y.], 651; Story, Eq. Jur. [13th Ed.], secs. 1257--61; Olcott v. Bynum, 17 Wall. [U. S.] 59; Natl. Bank v. Ins. Co., 104 U.S. 54; Silver v. Ladd, 7 Id., 228; Garland v. Wynn, 20 HOW [U. S.], 6; Lytle v. State of Ark. 22 Id., 193; Linsdey v. Hawes, 2 Black [U. S.], 559; Stark v. Starrs, 6 Wall. [U. S.], 402; Johnson v. Towsley, 13 Id., 85.

OPINION

NORVAL, J.

The plaintiff, Franklin Robinson, when eighteen years old, enlisted as a soldier in the Mexican war, serving as a private in Captain Stewart's company, battalion Missouri mounted volunteers. He was discharged at the close of the war and returned to his home in Gentry county, Missouri. In May, 1849, the plaintiff left for California, where he remained and resided until shortly before instituting this suit in the court below. Before leaving Missouri, Robinson made application for a land warrant, to which he was entitled for services as a soldier. It not having been issued when he started for California, he arranged with 'Squire Tolliver, of Gentry county, Missouri, to receive it when issued. On the 26th day of May, 1849, land warrant No. 58,547 was issued to Robinson, authorizing its location upon any 160 acres of government land subject to private entry. This warrant was received by Tolliver, by him turned over to Mrs. Elizabeth Reeves, and by her to the defendant Alfred D. Jones. The facts and circumstances surrounding the receipt of the warrant by Mrs. Reeves and Jones will be referred to hereafter.

On the 13th day of June, 1853, the defendant Alfred D. Jones made actual settlement upon the west half of the southeast quarter and the east half of the southwest quarter of section thirty-five, in township seventy-five north, of range forty-four west, in Pottawattamie county, Iowa, for the purpose of taking the same as a pre-emption.

On the 29th day of June, 1853, Jones, at the United States land office at Kanesville, Iowa, pre-empted the land and located the above described warrant thereon. On January 3, 1854, a patent was issued to Jones for the 160 acres of land. March 27, 1854, Jones sold and conveyed one-half of said tract to Samuel S. Fleming for $ 1,000, and the other half on the 23d day of April, 1868, to Sidney Dillon for $ 24,000. Of the proceeds arising from the sale of the land the sum of $ 3,000 was used and applied by Jones in the purchase of lot 6, in block 140, in the city of Omaha, which lot was subsequently sold by Jones for $ 3,000, and the money was applied on the payment of the purchase price of lot 8, in said block 140. The sum of $ 5,000 of the consideration received for the sale of the 160 acres was used by Jones to purchase lot 5, in block 165. The sum of $ 9,807 of the proceeds received by Jones from the sale of the quarter section was used by him in making improvements on said lot, and the sum of $ 7,193, being the remainder of the consideration received by Jones for the land, was, at the time of the trial, in Jones's possession. Jones received as rents and profits from the Omaha lots and buildings thereon the sum of $ 10,889.04, after deducting the total amount of expenditures made by him, and $ 5,000 additional for services in the care and management of the premises.

Upon the pleadings and the proofs the district court found subtantially that a trust resulted to Robinson in the above described quarter section of land by reason of locating the land warrant thereon; that Jones held the Omaha property, purchased with the proceeds of the sale of land, in trust for the use and benefit of the plaintiff; that Jones was liable to Robinson for the income received by him from the city lots and for the remainder of the proceeds arising from the sale of the land which had not been invested by Jones. A judgment was rendered in favor of the plaintiff and against the defendant Alfred D. Jones for the sum of $ 10,889.04, that being the net income received by Jones from the city lots, and for the sum of $ 7,193, being the invested proceeds derived from the sale of the land, with interest on said sums from the commencement of the suit until date of judgment, making, in the aggregate, the sum of $ 20,769.07. A conveyance was ordered made to the plaintiff for lot 5, in block 165, and lot 8, in block 140, was ordered sold to pay the sum of $ 3,000 declared to be a lien thereon in favor of the plaintiff. From this judgment Jones appeals.

The testimony relating to the manner in which the land warrant came into the possession of Jones is very conflicting. The substance of the testimony of the plaintiff Franklin Robinson, bearing upon this subject, is that when he went into the army his parents lived in Gentry county Missouri, and after his discharge in November, 1848, he returned to his home, where he spent the winter. That in August, 1848, while he was in the army, his mother died, and early the winter following Mrs. Elizabeth Reeves, who then resided in Iowa, an aunt of the plaintiff, went to Missouri after two minor children left by his mother, a half brother and sister to Robinson. She did not return home until spring, but spent the winter in Missouri. In April, 1849, Robinson helped his aunt take the children and some household goods, sheep, cattle, and horses to her home in Iowa, a few miles from the place where the town of Winterset now stands. While on this trip Robinson visits with Jones, who then resided near Mrs. Reeves. The plaintiff shortly after returning home from the army made application for a land warrant, and not having received it from Washington at the time he was visiting with the defendant Jones in Iowa, he claims to have made arrangement with Jones in regard to the disposition that should be made of it when issued. We quote from the plaintiff's testimony.

Q. State in full all the arrangements you made with him.

A. I made Mr. Jones agree when the warrant came to my place--that is the man that I would leave it with in Missouri--he was to get it and lay it for me, that is, in my name.

Q. Who was it you had made the arrangement with to receive the warrant if it came?

A. Came to Missouri?

Q. Yes.

A. Tolliver, a justice of the peace.

Q. Where did he live?

A. He lived a neighbor to us in Missouri, right adjoining to my step-father.

Q. In what place?

A. In Gentry county, Missouri.

Q. What is the name of the postoffice or town?

A. Athens was the postoffice then.

Q. It was to be sent to your address at the postoffice there?

A. Yes, sir.

Q. Did you make any arrangement with any one, and if so, whom, to receive the warrant when it should come to the postoffice?

A. I made arrangements with Tolliver--that is "old 'Squire Tolliver," that we called him--if the warrant came to my postoffice he was to get it and bring it home and to take care of it; if he got a chance, to forward it to Iowa to Mr. Jones, or let him know he had it; told him the arrangement I had made after I went back; he was to get the warrant and take care of it. * * * There was plenty of government land and I was calculating, when he got the warrant, he was to lay the warrant for me.

Q. In whose name?

A. In my name. I never saw the warrant.

Q. You never have seen the warrant?

A. Never have seen the warrant until to-day.

Q. Now, I will ask you to look at that warrant and see whether or not you ever saw the warrant until it was produced in court here this morning.

A. I saw the warrant this morning; yes, sir; in the hands of the officer; I never saw it before to-day.

Q. Just refer to the back part of the warrant and see whether you ever made any assignment of that warrant as appears upon the back here, or whether you ever authorized an assignment to be made.

A. No sir; neither one. I never saw the warrant until to-day in my life; I never authorized any assignment, in any way, shape, manner, or form.

Q. Did you ever appear before Mr. Jones and acknowledge an assignment of this warrant?

A. No, sir, I didn't.

The plaintiff also testified that he never authorized the delivery of the warrant to Mrs. Reeves, nor was she to keep it for him; that he did not inform Jones that the warrant was to be received by Mrs. Reeves and was to be assigned to her; that he never made any arrangements with Mrs. Reeves by which the warrant was to be received by her, for her...