Weeks v. Milwaukee, L. S. & W. Ry. Co.

• Decision Date: 13 January 1891
• Citation: 78 Wis. 501,47 N.W. 737
• Parties: WEEKS ET AL. v. MILWAUKEE, L. S. & W. RY. CO.
• Court: Wisconsin Supreme Court

78 Wis. 501

47 N.W. 737

WEEKS ET AL.

v.MILWAUKEE, L. S. & W. RY. CO.

Supreme Court of Wisconsin.

Jan. 13, 1891.

Appeal from superior court, Milwaukee county; F. L. GILSON, Judge.Quarles, Spence & Quarles, for appellants.

The land claim held by William Weeks, in his life-time, by virtue of the Spanish order of survey, descended immediately upon his death, in 1820, to his heirs, subject to their right to renounce and avoid liability for the debts of the estate. O'Donald v. Lobdell, 2 La. 299; Addison v. Bank, 15 La. 527; Beckham v. Henderson, 23 La. Ann. 446; La Page v. Banking Co., 7 Rob. (La.) 183; Womack v. Womack, 2 La. Ann. 339; Calvit v. Mulhollan, 12 Rob. (La.) 258; Blair v. Cisneros, 10 Tex. 41, 42. This land claim, before confirmation, was real estate, and by the principles of common, as well as civil, law, went to the heirs by descent cast. Brush v. Ware, 15 Pet. 93;Duncan v. Veal, 49 Tex. 603;Paul v. Willis, (Tex.) 7 S. W. Rep. 357;Harwood v. Wylie, 7 S. W. Rep. 789;Reeder v. Barr, 4 Ohio, 458. All the proceedings in the parish court of St. Tammany parish whereon the title of the defendant depends are void collaterally: (1) Because no probate court had jurisdiction of the succession. Melia v. Simmons, 45 Wis. 334;Flood v. Pilgrim, 32 Wis. 376;Griffith v. Frazier, 8 Cranch, 24;Joehumsen v. Bank, 3 Allen, 87. (2) In no event could the parish court of St. Tammany parish acquire jurisdiction. The court having jurisdiction of the estate is that of the county in which deceased resided at the time of his death, or in which the property is situated. Reynolds v. Schmidt, 20 Wis. 374;Chase v. Ross, 36 Wis. 267; McCrubb v. Bray, Id. 333; Melms v. Pfister, 59 Wis. 194, 18 N. W. Rep. 255. An attempt to administer upon the estate of an intestate in a county other than that in which he resided is a nullity. Holyoke v. Haskins, 5 Pick. 25, 9 Pick. 259;Crosby v. Leavitt, 4 Allen, 410;Bank v. Wilcox, 15 R. I. 258-260, 3 Atl. Rep. 211, and cases. Domicile is a jurisdictional fact, and administration in a parish other than that indicated by the Code of Louisiana is void. Succession of Williamson, 3 La. Ann. 261;Scott v. World, 26 La. Ann. 286;Miltenberger v. Knox, 21 La. Ann. 399;Clemens v. Comfort, 26 La. Ann. 270; Beale v. Walden, 11 Rob. (La.) 72. As to void administration under the Spanish law, see Duncan v. Veal, 49 Tex. 603;Paul v. Willis, (Tex.) 7 S. W. Rep. 357;Harwood v. Wylie, 7 S. W. Rep. 789;Murchison v. White, 54 Tex. 81. Want of jurisdiction of the thing may be shown aliunde in proceedings in rem. Thompson v. Whitman, 18 Wall. 457;Knowles v. Gas-Light Co., 19 Wall. 58. (3) Prior notice was essential to jurisdiction of the estate. Administration not preceded by advertisements required by law are held to be null by the courts of Louisiana, (Succession of Curley, 18 La. Ann. 728;Succession of White, 9 La. Ann. 232;King v. Lastrapes, 13 La. Ann. 582; Succession of Henderson, 2 Rob., La., 391; Succession of Talbert, 16 La. Ann. 230;Succession of Gusman, 35 La. Ann. 404;Pfarr v. Belmont, 39 La. Ann. 294, 1 South. Rep. 681;) and also by Mohr v. Porter, 51 Wis. 502, 8 N. W. Rep. 364;Mohr v. Manierre, 101 U. S. 417;Gillett v. Needham, 37 Mich. 143;Breen v. Pangborn, 51 Mich. 29, 16 N. W. Rep. 188. (4) The sale of the land claim was void, because no notice of sale was given to adversary parties. O'Dell v. Rogers, 44 Wis. 136;Mohr v. Porter, 51 Wis. 487, 8 N. W. Rep. 364;Gibbs v. Shaw, 17 Wis. 197;Succession of Curley, 18 La. Ann. 728. (5) The sale by the administrator was void because the thing attempted to be sold was not assets. William Weeks received from the governor of the province a concession or order of survey. This did not invest him with the fee, and no authority to recover the land could be maintained until the claim had been confirmed by the act of congress. Snyder v. Sickles, 98 U. S. 203;Dent v. Emmeyer, 14 Wall. 308. It is held that a patent to the legal representatives of a party carries title directly to the persons who are his legal representatives by grant, and not by descent. U. S. v. Grimes, 2 Black, 610;Bissell v. Penrose, 8 How. 317-341;Morrison v. Jackson, 92 U. S. 654-662. The effect of the act was to grant to the class who constituted the heirs or legal representatives of William Weeks; and it was the intent of the United States to leave the question as to what individuals took under that grant to be determined by local law. Cutting v. Cutting, 6 Fed. Rep. 267-268; Meader v. Norton, 11 Wall. 442;Widdicombe v. Childers, 124 U. S. 400-405, 8 Sup. Ct. Rep. 517;Johnson v. Towsley, 13 Wall. 87;Shepley v. Cowan, 91 U. S. 340.

A. L. Cary and B. G. Schley, for respondent.

TAYLOR, J.

This is an action in equity, brought by the plaintiffs, who claim to be heirs at law and legal representatives of William Weeks, deceased, to compel the respondent to transfer to them the legal title to certain lands described in the complaint, and which they allege are held by the railway company in trust for them. The defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained by the superior court, and the plaintiffs appeal from the order sustaining the demurrer. The allegations in the complaint are sufficient to show that the plaintiffs are the real heirs at law and legal representatives of the said deceased, William Weeks, and it is not now disputed that the facts set forth in the complaint are sufficient to show that the plaintiffs are entitled to the relief asked for, unless, upon the facts stated in the complaint, the defendant is protected in his title on the ground that it is a purchaser in good faith for value, without express or implied notice of the title of the plaintiffs.

The allegations in the complaint show: (1) That the plaintiffs are the heirs at law and legal representatives of William Weeks, deceased. (2) That William Weeks died in 1820, intestate, in the state of Louisiana. (3) That at the time of his death he was entitled to 2,030 arpents of land in the parish of West Feliciana, state of Louisiana, which was granted to said Weeks by an order of survey of “Grandpre,” then governor of West Florida, on the 31st day of May, 1806. (4) That Weeks did not get possession of said lands in his life-time. (5) That no proceedings were taken by the heirs or legal representatives of said William Weeks to get possession of said lands so ordered to be surveyed by said “Grandpre.” (6) That on January 12, 1855, the congress of the United States passed the following act in regard to this claim of the heirs of William Weeks, deceased, viz.: “Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that the heirs and legal representatives of William Weeks be, and they are hereby, confirmed in their claim to a tract of land, containing two thousand and thirty arpents, situated in the parish of West Feliciana, state of Louisiana, being the same granted to said William Weeks by an order of survey of Grandpre, then governor of West Florida, on the thirty-first day of May, one thousand eight hundred and six, according to the survey made by Ira C. Kneeland, deputy-surveyor, under commission from said governor, on the twenty-second day of September, one thousand eight hundred and six, of record in the office of the register of the land-office at Greensburg, Louisiana, and a patent shall issue therefor: provided, that this act shall be held and taken only as a relinquishment on the part of the United States. Approved January 12, 1855.” And on June 2, 1858, congress passed a general law, entitled “An act to provide for the location of certain private land claims in the state of Missouri, and for other purposes;” and in sections 3 and 4 of said act are the following provisions, viz.: “That in all cases of confirmation by this act, or where any private land claim has been confirmed by congress, and the same, in whole or in part, has not been located or satisfied, either for want of a specific location prior to such confirmation, or for any reason whatever, other than a discovery of fraud in such claim subsequent to such confirmation, it shall be the duty of the surveyor general of the district in which such claim was situated, upon satisfactory proof that such claim has been confirmed, and that the same, in whole or in part, remains unsatisfied, to issue to the claimant or his legal representatives a certificate of location for a quantity of land equal to that so confirmed and unsatisfied; which certificate may be located upon any of the public lands of the United States subject to sale at private entry at a price not exceeding $1.25 per acre: provided, that such location shall conform to legal divisions and subdivisions. Sec. 4. That the register of the proper land-office, upon the location of such certificate, shall issue to the person entitled thereto a certificate of entry, upon which, if it shall appear to the satisfaction of the commissioner of the general land-office that such certificate has been fairly obtained, according to the true intent and meaning of this act, a patent shall issue as in other cases.” (7) The complaint then sets out at length that some persons other than the plaintiffs, their grantors or ancestors, and without the knowledge of said plaintiffs, their ancestors, or any of them, and on the 3d day of April, 1876, instituted certain proceedings in the parish court of the parish of St. Tammany, in said state of Louisiana, setting forth that the estate of said William Weeks, deceased, was vacant, and that such estate consisted of the confirmed, but unsatisfied, land claim herein before referred to; that it was less than $500 in value, etc. The complaint then sets out the proceedings in said court at length, and shows that an administrator was appointed, and a pretended sale made by said administrator of the said land claim on the 25th of ...