The opinion of the court was delivered by
HortON, C. J.:
The principal question in this case is, was the land taxable for the year 1862? The contention is, that the act of the commissioner in canceling, on the 18th of December, 1861, McClellan’s certificate of entry or purchase, on account of the forgery of the assignment of the land warrant, was a nullity, but that, in any event, as a patent issued on April 5, 1884, it related back to the entry of March 6, 1858. It is the further contention, that as Edwin H. Anderson, on January 14,1859, before the commissioner of pensions canceled the certificate, purchased, for a valuable consideration and in good faith, the 80 acres in dispute from McClellan, he took the same purged of any fraud which might have been [277]*277committed in obtaining the certificate. Of course, if the land, in the year of 1862, and prior to July 23,1883, the time that a valid land warrant was furnished or paid for the land, belonged to the United States, it was not taxable. (Taylor v. Miles, 5 Kas. 498; Comm’rs of Saline Co. v. Young, 18 id. 440; Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 id. 444.)
“A title begins at the date of an entry on public land, but this doctrine cannot be invoked to burden the holder, and require him, in violation of justice, to pay taxes when he holds neither the equity nor title to the lands; but a party having an equitable title to lands, the legal title being in the United States, is taxable. When sold, the government, until the patent shall issue, holds the mere legal title in trust for the purchaser, and a second purchaser takes the land charged with the trust. Public land can be taxed only when a patent has issued, or when the private proprietor has acquired a ‘ perfect equity.’ ” (1 Desty, Tax’n, p. 35.)
It has been decided by this court that “the commissioner of the general land office of the United States has authority to cancel a final preemption receipt, and set aside the entry, before patent issues thereon; and a mortgagee of the entry man, after final receipt is given, and before the issuance of the patent, takes his mortgage subject to the supervisory power.” (Swigart v. Walker, 49 Kas. 100; Fernald v. Winch, 50 id. 79. See, also, United States v. Steenerson, 4 U. S. App. 332, and Cornelius v. Kessel, 128 U. S. 456, 461.) If the mortgagee of the entry man takes his mortgage subject to the supervisory power of the commissioner, a purchaser from the entry man must take the land subject to the same supervisory power. The grantees of McClellan “stand in his shoes,” and have no better title to the land than if he were now claiming it. Therefore, the principal question is, whether the payment for the land, on July 23, 1883, or the issuance of the patent, on April 5, 1884, related back to the entry of March 6, 1858, so as to make the land prior thereto taxable. There was no sale, or attempted sale, of the land for taxes after the payment was made in 1883.
[278]*278We do not think that, under the authorities, the doctrine of relation can be applied in this case as affecting taxes assessed upon the land before the 23d of July, 1883. Kate Kohn, as a tax-title purchaser, holds adversely to McClellan and his grantees, and has no equity in the land, on account of her tax title, if the land was not subject to taxation at the time that the taxes were levied. Before July 23, 1883, not only had the United States not parted with the legal title to the land, but an important act remained to be done, that is, the furnishing of another land warrant, or a payment for the land, the failure to do which would have defeated the issuance of the patent. In this connection, the language of Mr. Justice Miller, in Railway Co. v. Prescott, supra, is pertinent:
“As the government retains the legal title until the company or some one interested in the same grant or title shall pay these expenses, the state cannot levy taxes on the land, and, under such levy, sell and make a title which might, in any event, defeat this right in the federal government reserved in the act by which the inchoate grant was made.”
In Bronson v. Keokuk, 3 Dill. 490, it was decided:
“Until a patent for land emanates, the legal title thereto remains in the United States, and it will protect any equity which the United States may have in the land from a sale for taxes by the state. In 1853, the plaintiff, as the assignee of a land warrant, located it upon a tract of land. In 1862, and before any patent had issued, the proper department canceled the warrant and suspended the location because the warrant had been procured to be issued upon false and forged papers. The plaintiff, in the latter part of 1862, substituted another warrant, aud in 1863 received a patent. Held, That the land was not taxable for 1861, and that a tax sale and deed for the taxes of that year were void.”
In support of this decision, see, also, Reynolds v. Plymouth Co., 55 Iowa, 90; Kalder v. Keegan, 30 Wis. 126; Scott v. Chickasaw Co., 46 Iowa, 253, and Donovan v. Kloke, 6 Neb. 124.
A distinction is attempted to be made by the counsel for Kate Kohn upon the ground that the land warrants, or scrip, [279]*279referred to in the cases cited were forged or spurious, and that, as the original entry in this case was canceled on account of the forgery in the assignment only, the government received pay for the land, and therefore that the cases cited are not authority. But the furnishing of a land warrant, held by the locator by a forged assignment only, is no better payment for the land than if the warrant itself were forged or spurious. McClellan had no lawful right to use such a warrant or paper for any purpose. He was not the legal owner or holder of it. It is the same as if it were wholly false and fraudulent. The commissioner treated it as worthless, and canceled the certificate on account of such forgery.
■We are also referred by the same counsel to Wheeler v. Merriman, 30 Minn. 372, sustaining his claim that the land in dispute was subject to taxation from the date of the original entry. In view of the many authorities to the contrary, we are not satisfied with the reasoning of that case, and Witherspoon v. Duncan, 4 Wall. 210, cited to support it, does not do so. In the last case, the original certificate of entry was properly obtained, and there was no ground for its cancellation on account of fraud in the entry. Of course, in such case, “lands originally public cease to be public after they have been entered at the land office and the certificate of entry obtained”— that is, after the certificate of entry has been properly obtained; not after one has been obtained upon a forged land warrant or a forged assignment, or upon fraudulent papers. The only question, however, involved in that case was, whether the occupying claimant holding under the tax proceeding was entitled to the value of the improvements he had placed on the land. The plaintiff held the possession. On this question the trial court awarded the plaintiff the land, but allowed the defendant occupying under the tax deed the value of all improvements.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
HortON, C. J.:
The principal question in this case is, was the land taxable for the year 1862? The contention is, that the act of the commissioner in canceling, on the 18th of December, 1861, McClellan’s certificate of entry or purchase, on account of the forgery of the assignment of the land warrant, was a nullity, but that, in any event, as a patent issued on April 5, 1884, it related back to the entry of March 6, 1858. It is the further contention, that as Edwin H. Anderson, on January 14,1859, before the commissioner of pensions canceled the certificate, purchased, for a valuable consideration and in good faith, the 80 acres in dispute from McClellan, he took the same purged of any fraud which might have been [277]*277committed in obtaining the certificate. Of course, if the land, in the year of 1862, and prior to July 23,1883, the time that a valid land warrant was furnished or paid for the land, belonged to the United States, it was not taxable. (Taylor v. Miles, 5 Kas. 498; Comm’rs of Saline Co. v. Young, 18 id. 440; Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 id. 444.)
“A title begins at the date of an entry on public land, but this doctrine cannot be invoked to burden the holder, and require him, in violation of justice, to pay taxes when he holds neither the equity nor title to the lands; but a party having an equitable title to lands, the legal title being in the United States, is taxable. When sold, the government, until the patent shall issue, holds the mere legal title in trust for the purchaser, and a second purchaser takes the land charged with the trust. Public land can be taxed only when a patent has issued, or when the private proprietor has acquired a ‘ perfect equity.’ ” (1 Desty, Tax’n, p. 35.)
It has been decided by this court that “the commissioner of the general land office of the United States has authority to cancel a final preemption receipt, and set aside the entry, before patent issues thereon; and a mortgagee of the entry man, after final receipt is given, and before the issuance of the patent, takes his mortgage subject to the supervisory power.” (Swigart v. Walker, 49 Kas. 100; Fernald v. Winch, 50 id. 79. See, also, United States v. Steenerson, 4 U. S. App. 332, and Cornelius v. Kessel, 128 U. S. 456, 461.) If the mortgagee of the entry man takes his mortgage subject to the supervisory power of the commissioner, a purchaser from the entry man must take the land subject to the same supervisory power. The grantees of McClellan “stand in his shoes,” and have no better title to the land than if he were now claiming it. Therefore, the principal question is, whether the payment for the land, on July 23, 1883, or the issuance of the patent, on April 5, 1884, related back to the entry of March 6, 1858, so as to make the land prior thereto taxable. There was no sale, or attempted sale, of the land for taxes after the payment was made in 1883.
[278]*278We do not think that, under the authorities, the doctrine of relation can be applied in this case as affecting taxes assessed upon the land before the 23d of July, 1883. Kate Kohn, as a tax-title purchaser, holds adversely to McClellan and his grantees, and has no equity in the land, on account of her tax title, if the land was not subject to taxation at the time that the taxes were levied. Before July 23, 1883, not only had the United States not parted with the legal title to the land, but an important act remained to be done, that is, the furnishing of another land warrant, or a payment for the land, the failure to do which would have defeated the issuance of the patent. In this connection, the language of Mr. Justice Miller, in Railway Co. v. Prescott, supra, is pertinent:
“As the government retains the legal title until the company or some one interested in the same grant or title shall pay these expenses, the state cannot levy taxes on the land, and, under such levy, sell and make a title which might, in any event, defeat this right in the federal government reserved in the act by which the inchoate grant was made.”
In Bronson v. Keokuk, 3 Dill. 490, it was decided:
“Until a patent for land emanates, the legal title thereto remains in the United States, and it will protect any equity which the United States may have in the land from a sale for taxes by the state. In 1853, the plaintiff, as the assignee of a land warrant, located it upon a tract of land. In 1862, and before any patent had issued, the proper department canceled the warrant and suspended the location because the warrant had been procured to be issued upon false and forged papers. The plaintiff, in the latter part of 1862, substituted another warrant, aud in 1863 received a patent. Held, That the land was not taxable for 1861, and that a tax sale and deed for the taxes of that year were void.”
In support of this decision, see, also, Reynolds v. Plymouth Co., 55 Iowa, 90; Kalder v. Keegan, 30 Wis. 126; Scott v. Chickasaw Co., 46 Iowa, 253, and Donovan v. Kloke, 6 Neb. 124.
A distinction is attempted to be made by the counsel for Kate Kohn upon the ground that the land warrants, or scrip, [279]*279referred to in the cases cited were forged or spurious, and that, as the original entry in this case was canceled on account of the forgery in the assignment only, the government received pay for the land, and therefore that the cases cited are not authority. But the furnishing of a land warrant, held by the locator by a forged assignment only, is no better payment for the land than if the warrant itself were forged or spurious. McClellan had no lawful right to use such a warrant or paper for any purpose. He was not the legal owner or holder of it. It is the same as if it were wholly false and fraudulent. The commissioner treated it as worthless, and canceled the certificate on account of such forgery.
■We are also referred by the same counsel to Wheeler v. Merriman, 30 Minn. 372, sustaining his claim that the land in dispute was subject to taxation from the date of the original entry. In view of the many authorities to the contrary, we are not satisfied with the reasoning of that case, and Witherspoon v. Duncan, 4 Wall. 210, cited to support it, does not do so. In the last case, the original certificate of entry was properly obtained, and there was no ground for its cancellation on account of fraud in the entry. Of course, in such case, “lands originally public cease to be public after they have been entered at the land office and the certificate of entry obtained”— that is, after the certificate of entry has been properly obtained; not after one has been obtained upon a forged land warrant or a forged assignment, or upon fraudulent papers. The only question, however, involved in that case was, whether the occupying claimant holding under the tax proceeding was entitled to the value of the improvements he had placed on the land. The plaintiff held the possession. On this question the trial court awarded the plaintiff the land, but allowed the defendant occupying under the tax deed the value of all improvements. After disposing of the question before the court on the ground stated, the court said: “This disposes of this appeal, but, as another trial may be had, it is proper to consider other questions involved in the case.” The court then proceeded to state that the patent, when issued, related back.
[280]*280We have also examined the other cases cited in support of the claim that a patent, when issued, relates back to the original entry. With the exception of the Wheeler case, we cannot find any decision in support thereof, upon such facts as are disclosed in the record before us.
certmoateor assignment-Our conclusion is, that as the certificate of entry was procured by McClellan from the government upon a forged assignment, such entry or purchase did not give him any equity to the land as against the government. Paraphrasing the language of that eminent judge, Dillon, in Bronson v. Keokuk, supra, we may say that natural justice, indeed, would dictate that McClellan should have had an opportunity preferably to others to pay for the land, and this was properly given to him, ex gratia, not of legal right; but, as against the government, he cannot be regarded as having ¡purchased and paid for the land until he or some other person located a valid warrant upon it, and, until payment for the land had been made, it was not taxable.
Finally, it was suggested that, as Kate Kohn requested that the patent for the land should issue to her when she furnished the valid land warrant to pay for the same, a resulting or constructive trust must be inferred from all the facts and circumstances surrounding the case, so as to entitle her to recover in this action. It appears that the substitution or payment by Kate Kohn was upon the following condition:
“Upon the 18th day of February, 1884, the commissioner of the general land office, at Washington, D. C., again extended the time within which the locator, or any person interested, might substitute a valid land warrant, assigned to the original locator by name, within 90 days from that date, or pay $200 in cash.”
Kate Kohn knew at the time she made the substitution' what this condition was, and that the patent had to be issued to McClellan. She knew, therefore, that it would not be issued to her. Her request was not complied with, and therefore amounted to nothing. When the patent was issued, it [281]*281was issued to McClellan. The land warrant that was furnished had to be assigned to McClellan, the original locator. When the patent was so issued to McClellan it was not returned or refused. It was filed for record in the office of the register of deeds of Atchison county, on the 13th of February, 1885. Of course, Kate Kohn had constructive notice of the filing thereof, if she did not actually file the same for record. The patent, when issued to McClellan, procured the title to the 80 acres, which Kate Kohn had purchased from him, and which she also then owned. It would also have made her tax title good to the other 80 acres, if the land had been taxable and the tax proceedings regular. Section 6, of chapter 114, General Statutes, relating to trusts, reads:
“ When a conveyance for a valuable consideration is made to one person, and the consideration therefor is paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections.”
' contractive It is conceded that the next two sections do not bring Kate Kohn within their provisions. If, however, there is any resulting or constructive trust outside of the provisions of the statute, we cannot say, upon the facts disclosed, that there is anything in this case to put in operation such resulting or constructive trust. It is not claimed thatfMcClellan had anything to do with the land warrant furnished by Kate Kohn. That transaction was solely between her and the government. She was not misled by McClellan, or any agent of his, as to the issuance of the patent. She knew the offer the government had made about the substitution of a land warrant, or payment, and, although she made a request which was not granted, she accepted the terms of the offer. The offer of the government to permit anyone interested in the land to pay for the same was not a legal right, but was given ex gratia. Kate Kohn was interested in 80 acres of the land by purchase from McClellan, and she may have believed that she was also interested in the other 80 acres by virtue of her tax claim. If she so believed, it was [282]*282a mistake of law upon her part. The land was not taxable .prior to July 23,1883. It is probable that, upon proper proceedings, one-half of the value of the land warrant substituted, $100, and interest, might have been recovered by Kate Kohn, and the land in dispute sold therefor, but this question is not presented in the record.
The judgment of the district court will be affirmed.
All the Justices concurring.