Rogers v. Clark Iron Co.
| Decision Date | 15 May 1908 |
| Docket Number | Nos. 15,324-(95).<SMALL><SUP>2</SUP></SMALL>,s. 15,324-(95).<SMALL><SUP>2</SUP></SMALL> |
| Citation | 104 Minn. 198 |
| Parties | DAVID MUNRO ROGERS and Others v. CLARK IRON COMPANY and Others.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
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, Minnesota, to restrain the defendants from making claim thereto, or in any manner inter-meddling 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 west one half of the southwest one quarter and the southwest one quarter of the northwest one quarter of section 28, township 58 North, range 20 West, containing one hundred twenty 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, Arkansas, their ancestor, on January 22, 1868, made a homestead entry in Arkansas upon forty acres of land. Soldiers and sailors who had served in the War of the Rebellion and who had previously entered homesteads of less than one hundred sixty 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 one hundred sixty acres, under section 2306, R. S. U. S. (Act June 8, 1872, c. 338, § 2), 17 St. 333, and (Act March 3, 1873, c. 274), 17 St. 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, Arkansas, land office, August 4, 1873. On July 19, 1875, "J. M. Rogers," of Johnson county, Arkansas, 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 forty acres and had complied with the law in respect to that homestead, as appeared in the records of the land office at Dardanelle, Arkansas. 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 admitted. On March 3, 1891, congress prohibited any action to vacate any patent previously issued unless such action should be brought within five years after the passage of the act. Act March 3, 1891, c. 561, § 8, 26 St. 1099. Plaintiffs relied upon the patent to the land, as will subsequently appear — at one time upon that patent as executed in pursuance of the application and location by their ancestor; at another time upon it as issued upon forged signatures of their ancestor to the instruments of entry — and upon the statute of limitation which had rendered that patent incontestable after March 3, 1896.
The defendants asserted, for one defense, that they owned the land in fee. One basis of this claim of title was that they were at the time of bringing the action in possession, and had been in continuous possession under claim of adverse title since 1892; that they made valuable improvements without objection on the part of the plaintiffs or any one else; and that they had paid the taxes levied on the land, whereas none of the plaintiffs had directly or indirectly paid taxes.
Another claim of title was a deed to the premises, executed to one of the defendants for a valuable consideration by one James M. Rogers, whom the trial court found not to be, in fact, the James M. Rogers who made the homestead entry.
The third claim of title was through a deed executed by the probate court of St. Louis county on behalf of plaintiffs (minors) for $14,000 in cash and $50,000 in stock in the Clark Iron Mining Company, conveying to defendants all the interest of plaintiffs in these premises.
The final claim of title by defendants was under a tax deed issued by the state of Minnesota, on which notice to eliminate the right of redemption had been given, as defendants claimed, in strict accordance with the statute.
Defendants' further defense, as considered in this opinion, was that plaintiffs' ancestor had sold all his rights in the premises. On the day that plaintiffs' ancestor, James M. Rogers, applied for the soldiers' additional scrip, he sold it through M. M. Freed to Charles D. Gilmore, of Washington, District of Columbia. At the time of the sale Rogers executed and delivered to Freed (1) a power of attorney, beneficial to the donee, who was not named, irrevocable and sufficient in law to pass title to the land to the remote donee in the usual form used for that purpose; (2) the application; (3) the affidavit; (4) proof of military service. These four papers constituted what was known as a "full set of soldiers' additional homestead scrip." This scrip did not contain a description of the land. That description was, in accordance with recognized practice, to be thereafter filled in on location. Gilmore sold the scrip to General J. H. Baker, of Mankato, Minnesota, and executed to General Baker a substitute power of attorney similar to that previously described, whereby Baker, thus authorized and empowered to locate the land, located the land at the land office in Duluth December 14, 1875, by means of the scrip. The patent was thereafter issued in the name of Rogers in accordance with a ruling in the land office which the supreme court of the United States afterwards held to be erroneous. In consequence the beneficial ownership in the property passed to and remained in Baker. In the view here to be taken of these transactions, the controversy concerns this outstanding title.
Only an undivided interest of the plaintiffs is involved in this controversy. The remaining undivided interest, for present purposes, as appears to have been conceded, passed to defendants by a deed from the widow and other heirs of James M. Rogers. The trial court, inter alia, found that the application for additional entry and the affidavit in connection therewith were made by the father of the plaintiffs, that plaintiffs' ancestor sold the beneficial interest to Baker, and concluded that plaintiffs were entitled to no relief. This appeal was taken from an order denying the usual alternative motion.
It will be assumed in this decision that the deed to the defendants executed by James M. Rogers of Arkansas was not executed by plaintiffs' ancestor, who actually made the application and affidavit, and in whose name the patent was issued, but by another person of the same name, known as "Uncle Jimmy." It will also be assumed that the sale of plaintiffs' interest to defendants made by the probate court, and the tax title, were void, and that the Baker claim operated, if at all, to defeat plaintiffs' recovery only as an outstanding title because of which defendants had no interest in the land.
Baker is not a party to the controversy. What his rights may be as against the defendants is not properly before us on this appeal. No power of attorney from Rogers or any assignee of Rogers was produced. Defendants' inability to produce such power was shown. The testimony on which defendants rely to show the transfer to Baker of the rights of plaintiffs' ancestor may be summarized — as favorably to plaintiffs as reasonably may be — as follows:
In 1875 Freed was receiver of the land office at Dardanelle, Arkansas. He testified that the application and affidavit (Exhibits 38 and 39, respectively), on which the patent to Rogers was based, was in his own handwriting, with certain named exceptions, especially that the description therein inserted was in another writing. In the original application the description of the lands to be located was left blank. The applicant was required to furnish proof of military service, of former homestead, and of honorable discharge. The affidavit for additional homestead was sworn to in his presence by James M. Rogers. To the best of his knowledge and belief, and not relying merely on memory of custom and practice, "James M. Rogers was the Rogers...
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