Suessenbach v. First National Bank

CourtUnited States State Supreme Court of North Dakota
Citation41 N.W. 662,5 Dakota 477
Decision Date13 October 1889

41 N.W. 662

5 Dakota 477

SUESSENBACH et al., Appellants,

FIRST NAT. BANK, Respondent

Supreme Court of North Dakota

October 13, 1889

Argued October 8, 1888

Opinion Filed February 4, 1889

Appeal from district court of Lawrence county; HON. CHARLES M. THOMAS, Judge.

Judgment affirmed.

McLaughlin & Steele, for appellants.

That the court erred in admitting in evidence the proceedings had in the land-office, and admitting the rules and regulations of the mining district, see Silver Mining Co. v. Brown, 10 Sawy. 246; Smelting Co. v. Kemp, 104 U.S. 640, 641; Steele v. Smelting Co., 106 U.S. 450-455; Quinby v. Conlan, 104 U.S. 420; Tilton v. Cofield, 93 U.S. 163; Uligh v. Garrison, 2 Dak. 71, 2 N.W. 99; French v. Lancaster, 2 Dak. 346, 9 N.W. 716; Golden Terra M. Co. v. Smith, 2 Dak. 462, 11 N.W. 97; Kendall v. San Juan Silver M. Co., 9 Colo. 349, 12 P. 198; Golden Fleece Co. v. Cable Con. Co., 12 Nev. 324; North Noonday M'g Co. v. Orient M'g Co., 6 Sawy. 299; Jupiter Mining Co. v. Bodie Con. M. Co., 7 Sawy. 112; section 2119, Civil Code.

Any interest, legal or equitable, constitutes an adverse claim. Hamilton v. Southern Nev. G. & S. M. Co., 33 F. 562; Butte City Smoke-House Lode Cases, 12 P. 858; Richmond M. Co. v. Rose, 114 U.S. 576-584, 5 S.Ct. 1055; Lee v. Stahl, 11 P. 77.

There are no less than nine distinct allegations in the defendant's answer that its claim of title and that of its grantors, Stebbins and Hoffman, is a title adverse to the plaintiffs and their grantors.

The grantor of the defendant neglected to file with the register and receiver of the land-office at Deadwood, during the period of publication, an adverse claim to the lot in controversy. This was a waiver of any claim that he had, legal or equitable, against the applicants, for the lot in question. The answer fails to allege in any of its defenses or counter-claims that such an adverse claim as the law makes obligatory was filed with the land-officers at any time, or that any action was commenced by Stebbins or the defendant to determine the right of possession to the premises in dispute, within the time and in the manner provided by the United States law relating to mineral lands; and both he and the defendant were thereafter concluded from disputing plaintiffs' right to recover possession of the disputed premises. Rev. St. §§ 2325, 2326.

The policy of the mining act to compel parties to settle or litigate their disputes relative to adverse claims to mining ground before entry and payment is made manifest by the subsequent portion of section 2326. No similar proceedings are known to any of the other land laws. As the United States supreme court say in Mining Co. v. Consolidated Mining Co., 112 U.S. 167: "The system of law adopted for the sale and regulation of its mineral lands is 'totally different' from that which governs other public lands." See, also, Meyendorf v. Frohner, 3 Mont. 322; Eureka Cons. Co. v. Richmond Cons. Co., 4 Sawy. 318; 12 Nev. 320-323; Smelting Co. v. Kemp, 104 U.S. 636-655; Steele v. Smelting Co., 106 U.S. 447, 1 S.Ct. 389; Talbot v. King, 9 P. 438; Raunheim v. Dahl, Id. 892; Montana Copper Co. v. Dahl, Id. 894; Gwillim v. Donnellan, 115 U.S. 45, 5 S.Ct. 1110; Wolverton v. Nichols, 119 U.S. 485, 7 S.Ct. 289; Nessler v. Bigelow, 60 Cal. 101.

From the foregoing decisions, whatever were the rights and equities of Stebbins in the lot in controversy in July, 1878, he waived them by not filing his adverse claim, if he had any, with the register and receiver of the Deadwood land-office within the 60-days period of publication of the application for the patent for placer claim No. 15.

When a statute confers a right, and prescribes adequate means of protecting it, the proprietor of that right is confined to the statutory remedy. Almy v. Harris, 5 Johns. 175; McCowen v. Coherty, 3 Wend. 494; Stafford v. Ingersoll, 3 Hill, 38; Dudley v. Mayhew, 3 N.Y. 15; Cofield v. McClellen, 1 Colo. 374; City of Denon v. Kent, Id. 344; Denning v. Smith, 3 Johns. Ch. 345.

Courts of equity do not assist those whose condition is attributable only to want of due diligence, nor lend their aid to parties who, having had a plain, adequate, and complete remedy at law, have purposely omitted to avail themselves of it. Hendrickson v. Hinckley, 17 How. 604.

This was a legal action, triable by a jury. The issue between the applicant for a patent and the adverse claimant is necessarily narrowed down to the one question, who is entitled to the possession of the premises in controversy? Act of Congress, 1881, (Statutes at Large 1881, p. 565,) amendatory of section 2325; Burke v. McDonald, 13 P. 351; Quimby v. Conlan, 104 U.S. 420; Estrada v. Murphy, 19 Cal. 248; Webber v. Marshall, Id. 447; Clark v. Huber, 25 Cal. 597; Lestrade v. Barth, 19 Cal. 600; Phenix Ins. Co. v. Doster, 106 U.S. 30, 1 S.Ct. 18; Killian v. Ebinghaus, 110 U.S. 572, 4 S.Ct. 232; Bradstreet v. Huntington, 5 Pet. 408.

This is strictly a legal action, and the neglect of the defendant and its grantor to adverse the application for patent did not convert it into an equitable one.

It is a rudimental principle in equity, says Chief Justice GIBSON, "that he who purchases an imperfect title must stand or fall by the case of his vendor; and this rule has never been shaken." Kramer v. Arthurs, 7 Pa.St. 170; Sergeant v. Ingersol, Id. 345; Stewart v. Granley, 18 P. 621. "A deed is to be tested by making reference to the authority recited in it for making the sale." Moore v. Brown, 11 How. U.S. 414; 2 Kent, 484, 485; Denning v. Smith, 3 Johns. Ch. 332. "But a quitclaim deed does not pass more title than the grantor has, and does not give the one who claims under it the rights of a bona fide purchaser, without notice." 3 Washb. Real Prop. 356; May v. Le Claire, 11 Wall. 232; Touchard v. Crow, 29 Cal. 161; Miller v. Boggs, 25 Cal. 187; Thorpe v. Keokuk Canal Co., 48 N.Y. 253; Gress v. Evans, 1 Dak. 400; Morrison v. Wilson, 30 Cal. 344; Cadiz v. Majors, 33 Cal. 289; Barrett v. Bridge, 50 Cal. 658. "Covenants in a deed are only co-extensive with the grant." Rawle, 198, 199, 415; Herman, Estoppel, § 289; Brown v. Jackson, 3 Wheat. 452; Kimball v. Semple, 25 Cal. 440; Cadiz v. Majors, 33 Cal. 288.

The defendant has no equity. The occupation of mineral land as and for the purpose of a town lot is of no effect as against a valid mining claim location, and no rights or equities flow therefrom. The statutes expressly forbid the acquisition of title by virtue of such occupation. Talbot v. King, 9 P. 437; Butte City Smoke-House Lode Cases, 12 P. 859; Meyendorf v. Frohner, 3 Mont. 322; Hawke v. Deffebach, 22 N.W. 480; Pierce v. Sparks, Id. 491, 115 U.S. 400-411, 11 P. 78; Richmond Mining Company v. Rose, 114 U.S. 584, 585, 5 S.Ct. 1055; Eureka Case, 4 Sawy. 318.

To charge the holder of the legal title to land under a patent of the United States as trustee for another, it must appear that by the law properly administered in the land department the title should have been awarded to the latter. It is not sufficient to show that there was error in adjudging the title to the patentee. Bohall v. Dilla, 114 U.S. 47, 5 S.Ct. 782; Boggs v. Merced Mining Co., 14 Cal. 364, 365; Nessler v. Bigelow, 60 Cal. 101, 102; Aurrechoechea v. Sinclair, Id. 545-549; Drew v. Valentine, 18 F. 712; Stark v. Starr, 6 Wall. 418; Simmons v. Ogle, 105 U.S. 277, 278.

The occupation of the defendant is worthless when opposed to the federal title. Couchaine v. Bullion Mining Co., 4 Nev. 818, 819. See, also, Gardner v. Miller, 47 Cal. 370; Oaksmith v. Johnston, 92 U.S. 347, 3 Washb. 331; Frisbie v. Whitney, 9 Wall. 187; Yosemite Valley Case, 15 Wall. 77; Shepley v. Cowan, 91 U.S. 330.

At the time of the application for the patent respondent was not in a position to demand title to the premises from the government. No right is derived from purchasing the claim of a prior settler, unless he has, by an actual entry at the proper land-office, acquired a transferable interest in the land. Quinby v. Conlan, 104 U.S. 420; Hutton v. Frisbie, 37 Cal. 490-495; Whitney v. Frisbie, 9 Wall. 187; People v. Shearir, 30 Cal. 648; Doll v. Meador, 16 Cal. 326; Manning v. San Jacinto Tin Co., 7 Sawy. 426.

Right of possession is not an interest in the soil. Section 2322, Rev. St.; Chapman v. Toy Long, 4 Sawy. 34-35; Forbes v. Grocey, 94 U.S. 766; Table Mt. Tunnel Co. v. Stranahan, 20 Cal. 209; Mining Co. v. Taylor, 100 U.S. 42; Belk v. Meagher, 104 U.S. 283.

The plaintiffs are not trustees for the defendant. There is no privity between them. They are also strangers to each other's title, claiming the premises in question by reason of adverse claims of title. See sections 921, 279, and 293, Civil Code; Big. Estop. 294-302; Blight's Lessees v. Rochester, 7 Wheat. 335; Society v. Town of Paulet, 4 Pet. 406; Watkins v. Holman, 16 Pet. 53; Osterhaut v. Shoemaker, 3 Hill, 518; Averill v. Wilson, 4 Barb. 180, 185; Herm. Estop. §§ 263, 266, 270, 2823. Rawle, Cov. 454; Robertson v. Pickerell, 109 U.S. 613, 4 S.Ct. 407; Collins v. Bartlett, 44 Cal. 380; Walkins v. Holman, 16 Pet. 25; San Francisco v. Lawton, 18 Cal. 465; Sparrow v. Kingman, 1 N.Y. 242; Willison v. Watkins, 3 Pet. 43; Jackson v. Huntington, 5 Pet. 402; Voorhees v. White's Heirs, 2 A. K. Marsh. 27; Winlock v. Hardy, 4 Lit. 474.

There could be no trust under the provisions of section 279, C. C.

But we go further, and maintain that no trust can be created in the mineral lands of the United States by a locator that can affect or burden the title of the United States, or attach to it by reason of any adverse claim made by a third party. See Warren v. Van Brunt, 19 Wall. 646.

G. C. Moody and Edwin Van Cise, for respondent.

The mining claim of which the lot in controversy is a part was located by the defendant bank's "grantors." At the time of the grant to the defendant said mining claim was a valid, complete, and subsisting...

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