Sullivan v. Damon

• Citation: 231 F. 916
• Decision Date: 20 March 1916
• Docket Number: 4505.
• Parties: SULLIVAN v. DAMON et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

231 F. 916

SULLIVAN v. DAMON et al.

No. 4505.

United States Court of Appeals, Eighth Circuit.

March 20, 1916

Rehearing Denied May 25, 1916.

Alfred Pizey, of Sioux City, Iowa (D. H. Sullivan, of Sioux City Iowa, on the brief), for plaintiff in error.

John E Stryker, of St. Paul, Minn., for defendants in error.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

ADAMS Circuit Judge.

This was a suit in ejectment, brought by defendants in error, who were the sole heirs of Myron H. Damon, deceased, to recover possession of a tract of land situated in O'Brien county Iowa, patented to their ancestor in 1901. After the issuance of the patent to him, some time in 1903 Sullivan (the plaintiff in error) commenced a suit in equity in the court below against the patentee, asserting that he, by his settlement upon the land in question under the homestead laws of the United States prior to the issuance of the patent to Damon, had acquired title to it, and that through error of law the patent had been issued to Damon, when it should have been issued to him, and his prayer was that Damon (the defendant in that suit) should be decreed to hold the legal title in trust for him (Sullivan). During the pendency of that suit Myron H. Damon died, and some time in 1912 the suit was revived against the defendants in error as his heirs at law. In 1913, after a full hearing, a final decree was entered dismissing the bill on the merits, and awarding the land to the defendants in error as the surviving heirs of the patentee. Sullivan v. Damon (D.C.) 202 F. 285.

The defendant Sullivan was in possession of the land during the pendency of the equity suit, and upon his refusal to surrender its possession plaintiffs brought this suit to recover it from him. In their petition plaintiffs set forth, among other things, the claim which Sullivan had asserted to the land, and the facts relating to the bringing of the equity suit by him, and the entry of the final decree therein. Defendant, Sullivan, in his substituted and amended answer, admitted that he brought the equity suit, contesting the validity of the Damon patent as against his homestead claim, and that final decree was entered therein against him; but he alleged that no issue relating to his claim of title by adverse possession was there tried, and that the only issue there involved was whether the land department of the United States had erred as a matter of law in issuing the patent to Damon instead of to him. He further alleged that his equity suit was commenced on February 20, 1901, and that he had been for years prior thereto in the actual, open, hostile, notorious occupancy and possession of the land adverse to and exclusive of any and every other right or claim; that his possession continued for more than 10 years after the commencement of that suit, during which period of time neither Myron H. Damon nor his heirs (plaintiffs herein) brought any action for the recovery of the real estate, or the possession thereof, nor took any steps to bring the equity suit to trial; that by such acquiescence and laches any right, title, or interest which plaintiffs may have had in the land has been abandoned and lost, and barred of remedy by the statute of limitations of 10 years. A demurrer filed to this answer was sustained by the trial court, and, defendant declining to plead further, judgment was rendered against him, for the reversal of which this writ of error is prosecuted.

The defendant makes these assignments of error:

'(1) That the court erred in sustaining the demurrer to the amended and substituted answer filed in this cause, for the reason that the statements and allegations contained in said answer pleading title in this defendant and plaintiff in error to the real estate in controversy by adverse possession and the statute of limitations, state a good and valid defense to the petition of the plaintiffs.'

'(2) That the court erred in entering final judgment

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