Bradley v. Dells Lumber Co.

81 N.W. 394, 105 Wis. 245, 1900 Wisc. LEXIS 98

• Court: Wisconsin Supreme Court
• Decided: January 9, 1900
• Status: Published

Opinion

Bardeen, J.

In so far as the plaintiffs’ title depends upon the certificate of location, and the record and proceedings in the parish court of Louisiana in the matter of the succession of James Goyne, it differs in no material respect from that had under consideration in the case of Simmons v. Saul, 138 U. S. 439. That case, however, was a direct proceeding by the legal descendants of the holder of the inchoate land ■claim, against the holder of the title to land entered upon a :sale of the scrip under succession proceedings, to set aside such proceedings and to charge the holder of the title as trustee. In this case the defendant seeks to challenge the plaintiffs’ title without in any way connecting itself with the descendants of Groyne. If its title under the receiver’s receipt fails, the proposition is too clear for discussion that the defendant cannot attack the plaintiffs’ title for fraud in the ancillary proceedings leading up to the issue of the patent from the government. The rule is well established that when the United States have transferred public lands by patent the legal title passes to the patentee named in the patent, although he may have obtained it by fraud or forgery. “ The patent conveys the legal title to the patentee, and cannot be revoked or set aside, except upon judicial pro-oeedings instituted in behalf of the United States.” In re Emblen, 161 U. S. 52, and cases cited. In the case at bar counsel for defendant has attacked the proceedings of the parish court of Louisiana, through which the plaintiffs claim title, on the ground that the court was without jurisdiction, and that the whole proceeding, was fraudulent and void as against the descendants of James Goyne. If it be admitted that the defendant • is in position to avail itself of this defense, still every question he has raised in that respect was most strenuously urged in Simmons v. Saul, 138 U. S. 439, and decided adversely to such contention. Nothing that we can say will add to the force or weight of that decision. It goes over the ground fully, and, covering as it does the question of the faith and credit which courts of other states are bound to give to the judicial proceedings of the parish courts of Louisiana in succession proceedings, we feel bound to follow it. The case of Weeks v. M., L. S. & W. R. Co. 78 Wis. 501, was decided prior to the announcement of the decision in Simmons v. Saul, 138 U. S. 439, and in so far as it runs counter to the rules established in that casé it must yield.

Here the plaintiffs offered proof of a patent from the United States to “James Goyne or his legal representatives;” also, a certifícate of location, viseed by the acting commissioner of the general land office, upon which was noted the certificate of the surveyor general of Louisiana that, from the evidence filed in his office, W. T. Dugan, the person through whom plaintiffs claimed, was the legal representative of James Groyne. This evidence of itself made at least a prvmafacie showing of title m the plaintiffs. The third section of the act of Congress approved June 2, 1858, made it the duty of the surveyor general of the district in which the land claim was located, upon satisfactory proof that such claim had been confirmed and was 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. If the surveyor general may issue the certificate of location to the claimant’s legal representatives, as the act provides, certainly he was clothed with power to ascertain and determine who such representatives were. He could not fulfill the requirements of the law unless he made such determination, and, having so made it pursuant to authority of law, it was at least prima faoie evidence of the fact. The power was incident to the duty to be performed, and having been exercised in a proper case, it may well be claimed that it was impervious to collateral attack. The test in such cases is whether the officer had power to enter upon the inquiry, not whether his conclusion in the course of it was right. The following cases bearing upon this question may be consulted with profit: New Dunderberg M. Co. v. Old, 25 C. C. A. 116; U. S. v. W. & St. P. R. Co. 67 Fed. Rep. 948; Beard v. Federy, 3 Wall. 478; U. S. v. Arredondo, 6 Pet. 691-729; Haydel v. Dufresne, 17 How. 26; Chouteau's Heirs v. U. S. 9 Pet. 147; Lee v. Johnson, 116 U. S. 48; Burgess v. Gray, 16 How. 48; Connoyer v. Schaeffer, 22 Wall. 254.

The patent in this case runs to “ James Groyne or his representatives,” and the trial court held that it was not shown by the transcript of the proceedings in the parish court of Louisiana or otherwise that W. T. Dugan was the “legal representative” of Goyne. If this conclusion was based upon the assumption that such proceedings did not show jurisdiction, then, as we have seen, such conclusion was contrary to Simmons v. Saul, 138 U. S. 439, and Garrett v. Boeing, 68 Fed. Rep. 51, and cannot stand. If his judgment was founded upon the suggestion -that Dugan, as the purchaser at the probate sale, is not such “ legal representative ” as the law contemplates, his conclusion is equally infirm. “ The term ‘ legal representative,’ as used in the patent, embraces a representative by contract, a grantee or assignee, as well as a representative by operation of law.” Copp, Pub. Land Laws (1875), 796; 2 Copp, Pub. Land Laws (1882), 1009; Hogan v. Page, 2 Wall. 607; Carpenter v. Rannels, 19 Wall. 138.

The plaintiffs having shown, both by the certificate of the surveyor general and the proceedings of the parish court, that Dugan was the “ legal representative ” of Goyne, their title to the land was absolute, for the purpose of this case, unless the defendant had -a superior title under the receiver’s receipt offered in evidence. When it was offered it was objected to because it appeared upon its face to have been altered, an “N” having apparently been changed toa “W.” After some parleying bet when counsel and the court, it was admitted in so far as it bore on the question of defendant’s good faith in acquiring title and cutting the timber, but the court reserved a ruling as to its bearing on the question of title. Without making any further ruling in that respect, the court submitted to the jury, against plaintiffs’ objection, a question whether the receipt was in the same condition with respect to alteration as when it was delivered to •the parties named therein by the receiver of the land office. The plaintiffs requested the court to instruct the jury to answer the question, “No,” which was denied. The jury answered the question in the affirmative. By stipulation of the parties the question of the title was reserved to he decided by the court. After the verdict of the jury the plaintiffs made a seasonable' motion for a new trial, stating the’ grounds as will more fully appear in the statement of the case. This motion was denied, and the court thereupon made findings and conclusions that' plaintiffs had no title, and defendant was the owner of the forty in dispute. Under the proof in the case, we think the court was clearly in error. A bare inspection of the receipt reveals the fact that it had been'altered in the respect claimed by a different hand from that which wrote the body of the receipt. This alteration becomes much more glaring by inspection under a glass. The recent case of Maldaner v. Smith, 102 Wis. 30, reviews, the authorities upon the question of interlineations and alterations of written instruments so fully that we need do. no more than refer to it to ascertain the rule prevalent in this state. It is there stated in- effect that the mere fact of an alteration or interlineation in an instrument would not call for explanation, if the appearance of the' writing and the ink are such as to. indicate that the whole was written at the same time and by the same hand. But if the circumstances are such as to point to a change or alteration in a different hand or in different ink, and that it must have been done after delivery, the rule is cogent that before it can be received in evidence such alteration must be explained. The alteration in the receipt in question is so palpably different from the other writing therein as to throw suspicion on its genuineness and to call for some explanation. This, was not furnished. The only evidence at all bearing upon that question was that of Mr. Bailey, who said that at some-indefinite time after its issue it came to his hands, and was now in the same condition as when he received it. Whatever doubts there may be as to the fact of alteration are resolved to a certainty by the affidavits used on the motion for a new trial. Under the law of the United States, persons desiring to purchase land at private sale must make a. written application, describing the tract sought to be purchased, to be filed by the land officers. A certified copy of the application ’ made by the persons to whom the receipt was issued shows that they applied to enter the N. of the S. E. -J- of section 15, instead of the V. and the duplicate receipt on file in the land office at Washington shows the same thing. But one conclusion is possible, and that is that the receipt must have been changed after delivery. The receipt on its face showing such evidence of alteration as to' call for explanation, the court ought not to have considered it on the question of title, without it.

Moreover, the court, under the circumstances, ought to-have granted a new trial. The fact is undisputed that plaintiffs’ counsel was given to understand that the actual title to this land in plaintiffs would be conceded on the trial. The defendant made a tender of judgment for the cutting' done on this forty. Under date of January 3,1896, the plaintiffs wrote the defendant as follows: “We understand from Mr. Y. W. James that you have given up the contest on the title to- the land, viz. the S. W. \ of the N. E. J, Sec. 15,, T. 42,1 E., about which we have been, so long writing you.”' To this the defendant answered: “Eeplying to your favor of the 3rd inst., will say we have a warranty deed of the land in question, though, as explained to us by Mr. James,, we expect your title will hold good, and there is nothing for us to do but settle- amicably with you, which we wish to do, and then take- claims on our-grantors for reimbursement.” This, in connection with personal assurances from the officers of defendant that they had1 abandoned their claim to title, and the rather- indefinite way in> which their-claim of title- is- set up> in the answer; evidently threw the-plaintiffs’ counsel off his guard. Add to this the tender of judgment, and the failure of the court to make a timely ruling on the reception of the- receipt in. evidence without limr Ration, and we think a ease was presented where the court ought to have given the plaintiffs an opportunity to furnish proof as to the facts disclosed by the records of the land office. If the facts are as disclosed in the affidavits, the conclusion seems beyond question that defendant obtained no title under its receipt.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.