Rogers v. Clark Iron Co.

• Decision Date: 15 May 1908
• Citation: 104 Minn. 198,116 N.W. 739
• Parties: ROGERS et al. v. CLARK IRON CO. et al.
• Court: Minnesota Supreme Court

104 Minn. 198

116 N.W. 739

ROGERS et al.

v.CLARK IRON CO. et al.

Supreme Court of Minnesota.

May 15, 1908.

Appeal from District Court, St. Louis County; Wm. A. Cant, Judge.

Action by David Munro Rogers and others, by Daniel G. Cash, their guardian ad litem, and others, against the Clark Iron Company and others. The district court found that plaintiffs were entitled to no relief. From an order denying the usual alternative motion, plaintiffs appeal. Affirmed.

Syllabus by the Court

Plaintiffs, as heirs at law of James M. Rogers, of Arkansas, who died in 1896, brought this action to quiet title to an undivided interest in lands in St. Louis county against defendants in adverse possession under various claims of title. Plaintiffs' title rested in a United States patent issued to James M. Rogers in 1880, which remained in the Duluth land office. Among the preliminary proceedings on which it was based were: An application (in July, 1875) to make entry upon 120 acres, the description of which was left blank, as an additional homestead according to congressional laws for the benefit of honorably discharged Union soldiers and sailors; an affidavit, sworn to (at the same time) before Freed by J. M. Rogers, that he was entitled to the benefit of these laws as a Union soldier who had previously made entry for a homestead of 40 acres in Arkansas; and a location in the Duluth land office (in December, 1875) by means of soldiers' additional homestead scrip, upon the 120 acres here in controversy. Plaintiffs' ancestor was not an honorably discharged Union soldier, but had served in the Confederate army. Plaintiffs at one time during the trial asserted that he had signed the fraudulent application and sworn to the false affidavit, and afterwards, and finally, that these signatures were forgeries, and that the patent, a gift to him by the federal government, and all preliminary proceedings, were validated by the federal statute of limitation.

Defendants sought to show, inter alia, an outstanding title in Baker; that plaintiffs' ancestor in fact had made the application and had sworn to the affidavit; that at the same time he had executed a blank power of attorney, covenanting for further assurances, and sold through Freed a full set of soldiers' scrip to Gilmore; that Gilmore sold the scrip and executed a power of substitution to Baker, who located the land; that final receipts were delivered to him; and that he thus acquired the equitable title until the issuance of the patent, when the full beneficial ownership passed to him. Defendants did not, and were unable to, produce the original powers of attorney on which Baker's title rested. It is held that:

(1) The introduction of the patent made out prima facie title in plaintiffs, although it remained in the Duluth land office.

Title by patent from the United States is title by record, and delivery of the instrument to the patentee is not, as in a conveyance by a private person, essential to pass the title.

(2) It was competent for defendants, who were in adverse possession, by adequate pleading to defeat plaintiffs' action by showing a title outstanding in a third person, without connecting themselves with that title.

(3) Under the general denial, defendants were entitled to show an outstanding title in Baker, by proving facts on which it was based, and by invoking the rule that an interest which subsequently accrues may feed an estoppel, and other legal or equitable principles applicable to such facts.

(4) The burden of proof rested on defendants to establish such outstanding title by competent, strong, and satisfactory evidence.

(5) Rogers' soldiers' additional homestead scrip was personal property and assignable, notwithstanding the opposed practice of the federal land office.

(6) Four principles of evidence in particular apply to the testimony adduced to show the existence and contents of the missing powers through which title was transferred from Rogers to Baker, viz.:

(a) The acts of federal officials in allowing the location, executing the final receipts, and issuing the patent constitute evidence that all preliminary steps necessary thereto have been properly taken.

(b) The existence and contents of a lost or destroyed instrument of great age may be shown by the best evidence obtainable under the circumstances.

(c) Proof of business habit or custom is properly admitted in evidence in corroboration of the defective memory of a witness with respect to the existence and contents of such missing instruments.

(d) Proof of actual use of a definite and conventional form of a power of attorney justifies a satisfactory inference as to the contents of such powers.

(7) The finding of the trial court as to the genuineness of Rogers' signature to the fraudulent application and entry, the existence and contents of the lost powers of attorney, the location by Baker, and the delivery to him of the final receipts, were sustained by competent evidence, consisting in part of oral testimony, of documentary evidence, and of testimony as to the course of business and the use of conventional forms, and by the presumption of performance of official duty.

(8) Those powers were beneficial and irrevocable, and did not terminate with Rogers' death.

(9) They were adequate in terms and form to convey to Baker the interest of Rogers.

(10) After the location, Baker had a vested and substantial interest in the lands.

(11) Upon the issuance of the patent to Rogers, his heirs and assigns, the beneficial ownership of the lands passed to Baker, by the doctrine of relation or of enforced estoppel.

(12) That defendants were not in privity with Rogers did not prevent the application of those doctrines to vest title in Baker in furtherance of the patent. Gibson v. Chouteau, 80 U. S. 92, 20 L. Ed. 534, distinguished.

(13) Plaintiffs were estopped to use Baker's location as vesting title in their fraudulent ancestor and to repudiate it as conferring any interest in him as a bona fide purchaser for value. ‘Qui approbat, non reprobat.’

(14) The finding of the trial court that defendants had established an outstanding title in a third person should not be disturbed. D. G. Cash and J. B. Richards, for appellants.

John G. Williams, L. W. Wolcott, and Oscar Mitchell, for respondent Clark Iron Co.

Joseph B. Cotton and Frank D. Adams, for respondent American Mining Co.

W. R. Begg and C. O. Baldwin, for respondent Leonard Iron Mining Co.Plaintiffs, as heirs at law of James M. Rogers, deceased, brought this action against the defendants to quiet title to an undivided interest in lands situated in St. Louis county, Minn., to restrain the defendants from making claim thereto, or in any manner intermeddling therewith or trespassing thereon, or removing any iron ore or other products therefrom, for an accounting for ore previously removed therefrom by the defendants in possession, and for other relief. The land which was thus referred to and which is here in controversy is the W. 1/2 of the S. W. 1/4 and the S. W. 1/4 of the N. W. 1/4 of section 28, township 58 N., range 20 W., containing 120 acres, more or less. The answer included a general denial. The case was tried by the court.

Plaintiffs' claim of title involved this history: James M. Rogers, of Johnson county, Ark., their ancestor, on January 22, 1868, made a homestead entry in Arkansas upon 40 acres of land. Soldiers and sailors who had served in the War of the Rebellion and who had previously entered homesteads of less than 160 acres under the laws of the United States were entitled to enter additional area, which, together with the amount of the original homestead, would make 160 acres, under section 2306, Rev. St. U. S., Act June 8, 1872, c. 378, § 2, 17 Stat. 333 (U. S. Comp. St. 1901, p. 1415), and Act March 3, 1873, c. 274, 17 Stat. 605. Plaintiffs' ancestor, James M. Rogers, was not in fact an honorably discharged Union soldier, but had served in the army of the Confederacy. Pursuant to these provisions, application numbered 1,291, signed by ‘J. M. Rogers,’ was made for an additional entry, which in its final form as introduced into evidence was dated on December 14, 1875, recited that he was entitled to the benefits of the second section of the act of June, 1872, that he applied to enter the premises first herein described as additional to his original homestead in Arkansas, and that final proof of the original homestead had been made at Dardanelle, Ark., land office, August 4, 1873. On July 19, 1875, ‘J. M. Rogers,’ of Johnson county, Ark., made affidavit before M. M. Freed, receiver, referring by number to the previous application, and swore that he had previously made the homestead entry for 40 acres and had complied with the law in respect to that homestead, as appeared in the records of the land office at Dardanelle, Ark. The register of the land office certified that ‘J. M. Rogers' filed that application, No. 1,291, and that he paid the fee prescribed by law. Five months after, on December 14, 1875, the receiver of the land office at Duluth acknowledged the receipt on that day of the fee and compensation of the register and receiver for entering land accordingly, and the register of the land office at Duluth issued a certificate (No. 758) that pursuant to this congressional legislation, ‘James M. Rogers' made payment in full for the premises in St. Louis county previously described, and ‘that on presentation of this certificate to the Commissioner of the General Land Office the said James M. Rogers shall be entitled to a patent for the tract of land above described.’ The final patent to James M. Rogers, his heirs or assigns, dated April 15, 1880, in accordance with the additional homestead entry to the land in St. Louis county previously described, was filed for record February 26, 1892, and remained in the land office at Duluth. Plaintiffs' ancestor, James M. Rogers, died in 1896. The heirship of plaintiffs as his children was...