Week v. Bosworth

• Decision Date: 23 September 1884
• Citation: 61 Wis. 78,20 N.W. 657
• Parties: WEEK v. BOSWORTH AND OTHERS.
• Court: Wisconsin Supreme Court

61 Wis. 78

20 N.W. 657

WEEK

v.BOSWORTH AND OTHERS.

Supreme Court of Wisconsin.

Filed September 23, 1884.

Appeal from circuit court, Portage county.

G. W. Cate, for respondent, John Weeks.

W. F. Vilas and Raymond & Haseltine, for appellants, A. Earl Bosworth and others.

TAYLOR, J.

This is an equitable action brought to compel the appellants to convey to the respondent the legal title to 160 acres of land which, it is claimed, equitably belongs to him. The undisputed evidence shows that the legal title to the lands in controversy, at the time of the commencement of the action, was in the appellants, as the grantees of one George W. Ransone. Ransone, it appears, was a soldier in the Mexican war, and, as such, entitled to a land-warrant for 160 acres of land; that a land-warrant, No. 60,819, was duly issued to him by the proper department of the government, and that such warrant was, on the eleventh day of June, 1866, located on the land in controversy in his name; that such warrant was presented to the officers of the land-office by John Hockett and W. T. Goodhue, who claimed to own the same, but, not having any sufficient assignment thereof, located it in the name of the warrantee, Ransone. Ransone did not know of the entry of the land until 1882, when he claimed the land so located, and shortly after he had knowledge of the fact he conveyed it by quitclaim deed to L. N. Anson, one of the appellants, for the consideration of $300. Weeks, the plaintiff, claims the land by virtue of a chain of title from Hockett & Goodhue. The plaintiff, and those under whom he claims, have paid the taxes on said lands down to the time of the commencement of this action, and neither has been in the actual possession thereof. The land is now worth about $6,000. The evidence further shows that in June or July, 1848 or 1849, Ransone was sick, and he says he sold his discharge to some person for $50. He does not state what the name of the person was. He wanted the money to get home with. He signed some paper or papers, but what they were he does not know, and that he never signed any paper or papers in regard to the matter, after that, until he made the deed to Anson.

The receiver of the land-office where the warrant was located states that Hockett & Goodhue presented this warrant, with others; that it had an assignment attached to it when first presented, purporting to be an assignment by the warrantee, but the acknowledgment of the assignment was not so certified as to authorize a location of it in the name of the assignee, and the assignment was executed before the warrant was issued; that the officers refused to permit the warrant to be located in the name of Hockett & Goodhue; that Hockett & Goodhue then removed the assignment from the warrant, and presented the same for location on a subsequent day in the name of Ransone, the warrantee, and the officers allowed the location to be made in his name. The following are copies of the entries made in the land-office where the warrant was located:

“Application under Act, eleventh February, 1847. Land-warrant No. 60,819. Register and Receiver No. 148. Land-office, Stevens Point, Wis.

JUNE 11, 1866.

We certify that the attached military bounty land-warrant, No. 60,819, was on this day received at this office from George W. Ransone, of Marathon county, state of Wisconsin.

S. H. ALBAN, Register.

ALEMANSON EATON, Receiver.”

“I, George W. Ransone, of Marathon county, state of Wisconsin, hereby locate the S. E. 1/4 N. E. 1/4, and E. 1/2 of S. E. 1/4, section 19, and S. W. 1/4 of N. W. 1/4 of section No. 20, in township No. twenty-eight (28) N., of range No. seven (7) E., in the district of land subject to sale at the land-office at Stevens Point, Wisconsin, containing 160 acres, in satisfaction of the attached warrant, numbered 60,819. Witness my hand this eleventh day of June, A. D. 1866.

GEORGE W. RANSONE.

Attest: S. H. ALBAN, Register.

ALEMANSON EATON, Receiver.”

“LAND-OFFICE, STEVENS POINT, WIS., June 11, 1866.

We hereby certify that the above location is correct, being in accordance with law and instructions.

ALEMANSON EATON, Receiver.

S. H. ALBAN, Register.”

“(4--194.) Act of 1847.

REGISTER'S OFFICE, STEVENS POINT, WIS., June 11, 1866.

Military land-warrant No. 60,819, in the name of George W. Ransone, has this day been located by George W. Ransone upon the S. E. 1/4, N. E. 1/4, and S. 1/2 of S. E. 1/4, section 19, and S. W. 1/4 of N. W. 1/4 of section 20 in township 28 N., of range 7 E., subject to any pre-emption claim which may be filed for said land within thirty days from this date.

Contents of tract located, 160 acres. The date of assignment in all cases must be given at the time they are acknowledged, and no assignment of this certificate will be regarded. 7566--M.

S. H. ALBAN, Register.”

The certificate last above copied, it is presumed, was given by the registe to the person locating the warrant, or to the person appearing and locating it in his name. It is apparent, from this statement of the evidence and facts of the case, that Hockett & Goodhue never obtained a legal title to the lands in controversy, and their deeds could convey none to their grantees. The legal title, under the statutes of this state, for all practical purposes, was in Ransone and his grantees, even though no patent had been issued upon such location. See section 4165, Rev. St. 1878; section 130, c. 137, Rev. St. 1858. Whether a patent has ever been issued does not appear from the evidence.

The respondents based their right to have the legal title conveyed to them upon two propositions. First, that their grantors, Hockett & Goodhue, were the lawful owners of the land-warrant at the time the locotion was made, and, as such, entitled to the lands upon which it was located. We think the evidence fails to show any such ownership. If they were the owners of the warrant, it must have been by virtue of some valid contract of purchase from the warrantee or his lawful assignee or assignees. The evidence clearly shows that the only claim they made to the warrant was by virtue of an assignment purporting to be made by the warrantee, Ransone, which, on its face, showed that it was made in violation of a statute of the United States, and was rendered by such statute absolutely void. See Act of Congress of February 11, 1847, and Lester, Land L. 125. This act, after declaring the right of a soldier to a warrant for 160 acres, and the method of obtaining and locating the same, adds this provision: “All sales, mortgages, powers, or other instruments of writing going to affect the title or claim to any such bounty-right made or executed prior to the issue of such warrant or certificate, shall be null and void to all intents and purposes whatsoever, nor shall such claim to bounty-right be in any wise affected by or charged with or subject to the payment of any debt or claim incurred by the soldier prior to the issuing of such certificate or warrant.”

In view of this statute, which was evidently enacted to protect the soldier against just such a transaction as the one under which Hockett & Goodhue claim title to the warrant in question, it is absurd to say that they were purchasers in good faith in open market of the warrant in question, and are, therefore, entitled to the aid of the court of equity to enforce a lawful conveyance to them of the land upon which the warrant was located. It is unnecessary to determine what their position would have been had the assignment, under which they claim title, upon its face, purporting to have been made after the warrant was in fact issued. Had the soldier, knowing what he was doing, voluntarily executed an assignment in blank, properly certified and acknowledged, with the knowledge that the person to whom it was delivered would fill up the blanks with false dates so as to make it appear that it was executed after the warrant was issued, and the person to whom such blank assignment had been delivered, after obtaining the warrant, had filled up the blanks in the assignment so as to make it appear that it had been executed after the date of the warrant, and then, upon the strength of such assignment, had sold the...