Whitney v. Spratt

• Decision Date: 24 April 1901
• Parties: WHITNEY et al. v. SPRATT.
• Court: Washington Supreme Court

64 P. 919

25 Wash. 62

WHITNEY et al. v. SPRATT.

Supreme Court of Washington

April 24, 1901

Appeal from superior court, Cowlitz county; A. L. Miller, Judge.

Suit by David Whitney and others against A. N. Spratt. From a decree for defendant, plaintiffs appeal. Affirmed.

Dalph Mallory, Simon & Gearin, for appellants.

Stott &amp Stout and T. H. Ward, for respondent.

REAVIS C.J.

Suit commenced by plaintiffs against defendant to remove a cloud from plaintiffs' title to section 32, township 9 N range 4 W., in Cowlitz county. Only the northeast and the southeast quarters of the section are in controversy upon appeal, plaintiffs having succeeded as to the other half of the section. The defendant answers, alleging that plaintiffs' claim to the notheast quarter of said section was deraigned through one Henness, who held under patent from the United States, and the southeast quarter was claimed by plaintiffs through one Walker, who likewise held under patent from the government; that such patents were wrongfully issued to Henness and Walker, and in truth and equity defendant is the owner of the two quarter sections deraigning title to the northeast quarter from one Frank Smith, and to the southeast quarter through one James M. Radcliffe; that Smith and Radcliffe entered, respectively, the said northeast and southeast quarters as timber land, on May 26, 1883, under the 'timber and stone' act of congress of June 3, 1878 (20 Stat. 89), and made application to purchase the same, both applications being made on the same day; that they each complied with the law in relation to the purchase of timber land, and each paid the purchase price thereof to the government, and received a receiver's certificate therefor; that after the receipt of such certificates they, by warranty deed, duly transferred the respective tracts, for a valuable consideration, to A. N. Spratt, defendant; that on the 21st of January, 1886, the commissioner of the general land office erroneously canceled the entries of Smith and Radcliffe, and thereafter issued the patents to Henness and Walker. The proceedings of the land department are set out with particularity, and the answer alleges that such proceedings were invalid, because no notice was given to Spratt, the transferee of Smith and Radcliffe. It is also alleged that the commissioner of the general land office erred in his construction of the timber purchase act, in that he ruled that land which was chiefly valuable for timber, but which could be cultivated after the timber was removed, was not purchasable under the act, and held the entry was void on that ground. Defendant prays that he may be declared the equitable owner of the two quarter sections, that plaintiffs be adjudged to hold the patents in trust for him, and that conveyance of the legal title be made to him. By stipulation all the evidence and proceedings in the land department are in the record. Defendant introduced competent testimony tending to show that the entries of Smith and Radcliffe were made in good faith; that the two quarter sections entered by them were in fact timber land, more valuable for the timber than any other purpose, incapable of cultivation until the removal at great expense of the timber therefrom, and that such premises were in fact timber lands under the act of congress.

As observed by counsel for appellants, two questions arise here:

1. Was Spratt, the transferee of the entrymen, Smith and Radcliffe entitled to notice of the proceedings in the land office which resulted in the cancellation of their entries? It may be observed that the warranty deeds, executed by the entrymen conveying their lands to Spratt, were of record in the auditor's office of Cowlitz county before the contest for cancellation was instituted, and that the special agent, who made the examination, and upon whose reports the proceedings were instituted, advised the land department of the transfers. It will thus be seen that knowledge of these transfers and of the interest of Spratt was conveyed to the land department before the notice of contest was given to the entrymen, and notice was directed to be given to the transferee by the commissioner of the general land office, but in fact was not given, and the transferee had no knowledge of the contest. The commissioner of the general land office, after a hearing, which was ex parte, canceled the entries of Smith and Radcliffe, and thereafter issued the patents to Henness and Walker, through whom plaintiffs deraigned title. It would seem upon these facts that the established rule as to notice pursued by the land department for...