Swigart v. Walker

• Decision Date: 11 June 1892
• Citation: 49 Kan. 100,30 P. 162
• Parties: WILLIAM B. SWIGART v. WILLIAM WALKER
• Court: Kansas Supreme Court

30 P. 162

49 Kan. 100

WILLIAM B. SWIGART v. WILLIAM WALKER

Supreme Court of Kansas

June 11, 1892

Error from Sherman District Court.

ACTION brought by Swigart to quiet the title to real estate in Sherman county, against Walker, who claimed an adverse interest in the same. The case was tried at the July term 1889, before the court, when the following findings of fact and of law were made:

"1. Prior to May 14, 1886, the land in dispute was public land of the United States.

"2. On May 14, 1886, the land in question, being a part of the east half of the southwest quarter and the southwest quarter of the southwest quarter of section 18, township 8 S., of range 39 W., in Sherman county, Kansas, and entered as an additional soldier's homestead entry, under the homestead laws of the U.S. by one Anderson A. Cummings, as guardian for the heirs of Joseph Volgymore, deceased, said entry being made at the Oberlin, Kan., land office.

"3. The said land office at that time issued Cummings a final receipt showing the entry of said land.

"4. Afterward, on the day of , said Cummings executed and delivered to the Sherman Center Town-Site Company, of Sherman county, Kansas, his guardian's deed, conveying to it the interest of said Volgymore's heirs in said land.

"5. Afterward, and on the day of , said Sherman Center Town-Site Company executed and delivered to the plaintiff in this case its deed, conveying to him its interest in the property in dispute in this action, it being a part of the land described in said deed of Cummings to the Sherman Center Town-Site Company.

"6. Afterward, and on August 22, 1887, the said entry of said Cummings was by letter 'C' of that date duly canceled by the commissioner of the general U.S. land office, and the same held for naught; said cancellation being made for reasons that said Joseph Volgymore, deceased, had made a similar entry at San Francisco, Cal., on December 31, 1877.

"7. At the time of beginning this action, no patent had issued to the heirs of said Volgymore conveying to them said land, and never has issued, and that the order of cancellation above referred to had never been appealed from, but now remains in full force and effect.

"8. The cancellation of said entry was made in the local land office at Oberlin, Kan., on October 4, 1887.

"9. Afterward, and on October 5, 1887, William Walker, the defendant in this case, was a qualified entry man in all respects, and on that day entered said land conveyed by the entry of said Cummings as a timber claim, under the timber-culture laws of the United States, by and with the consent of the United States, and that said defendant was in good faith holding said land, and had complied with the laws in all respects, up to and at the time of the beginning of this suit.

"I therefore find, as conclusions of law, that this court had no jurisdiction to inquire into the rights of the parties in and to the title to said land in this action, and that judgment should be rendered for the defendant herein for the recovery of his costs.

"Wherefore it is hereby ordered and adjudged that this cause be and the same is hereby dismissed, and that the defendant have and recover of and against plaintiff the costs of this suit taxed at $ ."

In accordance with this conclusion, the court entered judgment dismissing the action and awarding costs to the defendant. The plaintiff moved to set aside the findings and for a new trial, which motion was overruled and an exception duly taken.

Judgment affirmed.

S. D Decker, for plaintiff in error:

We claim that judgment upon the findings should have been rendered in plaintiff's favor, quieting his title. Our theory of this case is as laid down by Justice Deady and other very eminent jurists. The evidence and findings of the court show that long prior to the commencement of this action the tract of land embracing these lots was proven up on and a patent certificate was issued to Anderson A. Cummings, under the homestead law, and thereafter it was sold to parties who platted it into blocks, lots, streets, and alleys, for business purposes, known as the Sherman Center town-site; that after the plaintiff purchased the lots in controversy, and erected a store building on the same, the local United States land office at Oberlin, Kan., by direction of the commissioner, at Washington, canceled and erased the entry of record embracing these lots, and allowed the defendant, Walker, to place a timber entry on the tract of land. It was decided in Smith v. Ewing, 23 F. 741, that where a certificate of purchase has been issued to a preemptor in due form, and no appeal has been taken from the decision of the local land office, the land described in the certificate becomes the property of the preemptor; which certificate vests in him the equitable title, and he can dispose of his interest therein as if the purchase had been made from a private person. Carroll v. Safford, 3 HOW 460; Myers v. Croft, 13 Wall. 291; Sillyman v. King, 36 Iowa 207; Moyer v. McCullough, 1 Ind. 339. See, also, Perry v. O' Hanlon, 11 Mo. 585; Prill v. Stiles, 35 Ill. 309; Cornelius v. Kissel, 58 Wis. 241; Wilson v. Fine, 40 F. 52.

J. W. Lewis, for defendant in error, after referring to numerous authorities, cites --

Darcy v. McCarthy, 35 Kan. 722, the syllabus of which reads "The commissioner of the general land office has supervisory control over the subordinate officers in the land department, and can revise and correct their decisions; and where...