Miller v. Donahue

71 N.W. 900, 96 Wis. 498, 1897 Wisc. LEXIS 341

• Court: Wisconsin Supreme Court
• Decided: June 11, 1897
• Status: Published

Opinion

Finney, J.

When the plaintiff had put in evidence the two tax deeds, with proper conveyances to himself, he had made out a prima facie title to the premises, upon which he -could recover, unless the defendant succeeded in showing that the lands were not taxable at the time the taxes were levied, for the nonpayment of which they were so sold and conveyed.

The defendant’s contention is that, by mistake, all the entry papers described Allen’s entry as made for the 8. F. J, when it is claimed that he applied in fact for the 8. W. \ of the. section, except that the duplicate certificate of the entry delivered to him was for the 8. W. J. The certificate of entry forwarded to the general land office was for the 8. E. J, and a patent was issued to him accordingly, and recorded by the recorder of the general land office December 15, 1854. It appears to have been forwarded to the local land office for •delivery, but has since been lost or destroyed. Beyond all question, the patent vested the entire title to the land in Allen. The three-years statute of limitations on the tax deeds had run, as against his title, as early as May 29,1875. It is claimed that Allen did not discover the • mistake until December, 1881, more than twenty-seven years after the date of the patent; and on the 24th of January, 1883, upon an ex parte application, without any notice to the holder of the adverse title under the tax deeds, Allen obtained cancellation of the patent, and a return of his money, upon the - grounds stated in the letter of the commissioner of the general land office, it appearing that the 8. W. \ of the section had in the meantime been otherwise disposed of. The act of the executive department in thus attempting to cancel the patent was, we think, unauthorized and void, and that neither the patent nor the title which it conveyed was thereby in any way affected or impaired. The patent was issued in a case within the scope of the authority of the land department, and there was nothing upon file or of record to show that anj^ mistake had occurred.

In Moore v. Robbins, 96 U. S. 530-532, it was held that “ a patent for public land, when issued by the land department, acting within the scope of its authority, and delivered to and accepted by the grantee, passes the legal title to the land. All control of the executive department of the government thereafter ceases.” The court, by Mr. Justice Mil-lek, further says: “With the title passes away all authority or control of the executive department over the lands, and over the title which it has conveyed. . . . If fraud, mistake, error, or wrong has been done, the courts of justice are as open to the United States to sue for the cancellation of the deed, or for a reconveyance of the land, as to individuals; and, if the government is the party injured, this is the proper course.” In U. S. v. Stone, 2 Wall. 525, the court said: “A patent is the highest evidence of title, and is conclusive, as against the government and all claiming under junior patents or title, until it is set aside or annulled by some judicial tribunal. In England this was originally done by scirefacias, but a bill in chancery is found a more convenient remedy.” In the subsequent case of U. S. v. Schurz, 102 U. S. 378, it was held that, when a patent for a part of the public lands has been regularly signed, sealed, countersigned, and duly recorded, the patentee has a perfect right to the possession of it; that the power of the land department over the proceedings to acquire title to the public land ceases when the last official act necessary to transfer the title is performed. “ In such case the title to the land conveyed passes, by matter of record, to the grantee, and the delivery which is required when the deed is made by a private individual is not necessary to give effect to the granting clause of the instrument.” Pages 396 and 397.

In that case the status and effect of an undelivered patent,, and its effect on the title to the lands, were carefully considered. It was contended that the patent in that case, which had been signed, sealed, and countersigned, and recorded, and then sent to the register of the land office for delivery, had never "been delivered, and had always remained under the control of the officers of the land department, was ineffectual for want of delivery, and “ that this execution of the patent concluded nothing, and the authority of the secretary and the commissioner of the general land office to deal with the whole subject, including the relator’s right to the land, remained unaffected by the patent,” as seemed to be inferable from the case of Moore v. Robbins, 96 U. S. 530; and Bell v. Hearne, 19 How. 252, and other cases, were much relied on by the defendant to show that the whole matter remained. sub judice, so to speak, in the land department, with power to vacate the entry and cancel the patent. 102 II. S. 388-390, 395, 396. But these contentions, there sharply presented, were wholly overthrown by the decision in U. S. v. Schurz, supra, and have ever since been so considered. The-court further says: “ From the very nature of the functions performed by these officers, and from the fact that a transfer of the title from the United States to another owner follows their favorable action, it must result that at some stage or other of the proceedings their authority in the matter ceases. It is equally clear that this period is, at the' latest, precisely when the last act in the series essential to the transfer has been performed; or, so to speak, in technical language, the legal title has passed from the government, and the power of these officers to deal with it has also passed away. The fact that the evidence of this transfer of title remains in the possession of the land officers cannot restore the title to the United States or defeat that of the grantee, any more than the burning up of a man’s title deeds •destroys his title. . . . The acts of congress provide for the recording of all patents for land in one office, and in books kept for that purpose. An officer, called the Recorder, is appointed to make and to keep these records. lie is required to record every patent before it is issued, and to countersign the instrument to be delivered to the grantee. This, then, is the final record of the transaction — the legally prescribed act which completes what Blackstone calls ‘ title by record;’ and when this is done, the grantee is invested with title. . . . When all that we have mentioned has been ■consciously and purposely done by each officer engaged in it, and where these officers have been acting within the scope •of their duties, the legal title to the land passes to the grantee, and with it the right to the possession of the patent. No further authority to consider the patentee’s case remains in the land office. No right to consider whether ha ought in ■equity, or on new information, to have the title or to receive the patent. There remains the duty, simply ministerial, to ■deliver the patent to the owner.”

The case of Bell v. Hearne, 19 How. 252-262, was one where the error in the Christian name of the patentee was corrected, from James to John, and the mistake was shown by the record, and the court said of it: “The power exercised in this case is a power to correct a clerical mistake, the existence of which is shown plainly hy the record, and is a necessary power in the administration of every department.” Marsh v. Nichols, Shepard & Co. 128 U. S. 614 And the case is clearly distinguishable from the present, where the record does not show any mistake, and where the action of the department subverts and cancels a patent absolutely. “ If such a power exists [as was asked by Mr. Justice Miller in Moore v. Robbins, 96 U. S. 534], when does it cease? There is no statute of limitations against the government; and, if this right to reconsider and annul a patent after it has once become perfect exists in the executive department, it can be exercised at any time, however remote. It is needless to pursue the subject further. The existence of any such power in the land department is utterly inconsistent with the universal principles on which the right of private property is founded.”

We have felt at liberty to quote quite extensively from the case of TJ. 8. v. Schurz, because, in our judgment, it is absolutely decisive of this controversy, and the doctrine there laid down is fully sustained by subsequent decisions. Hardin v. Jordan, 140 U. S. 401; Noble v. U. R. L. R. Co. 147 U. S. 176; In re Emblen, 161 U. S. 52, 56; U. S. v. Marshall Silver Mining Co. 129 U. S. 587, 588; Iron Silver Mining Co. v. Campbell, 135 U. S. 301. The case of Reynolds v. Plymouth Co. 55 Iowa, 90, was one where it was held that the party making the entry acquired no title or equity, for the reason that the scrip used in making it was forged and counterfeit.

It is clear, we think, that, by the entry and issuing of the patent, the lands therein described were segregated from the public domain, and were no longer subject to entry or disposition under the general land laws, and that the title thereto was vested in Hiram S. Allen. The land department could not deal with the land in any way whatever until the patent should be canceled, at the suit of the United States, by a bill in equity. It became in 1854, when the patent was issued, and has ever since so remained, subject to the laws of the state in relation to taxation, and to sale and conveyance in case of nonpayment of the taxes assessed thereon. The act of the-department in canceling the patent, and in setting aside the entry, after it had been carried into and merged in the patent itself, was a nullity. This court has recognized the principle to be that “ whenever the question in any court, state or federal, is whether a title to land' which had once been the property of the United States has-pássed, that question must be resolved by the laws of the-United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to the state legislation, so-far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.” Paige v. Peters, 70 Wis. 182; Wilcox v. Jackson, 13 Pet. 516, 517.

The proceeding by which the patent in this case was canceled for mistake, without notice of any kind to the plaintiff, who acquired or claimed to have acquired the title by tax deeds to the land, and who was interested in contesting the question of whether any mistake had occurred, but was-not cited before the land department in relation to it, is without authority of law. lie was entitled to litigate the question of mistake before a competent tribunal, upon notice and 'proper allegations. It seems preposterous to say that the record -made up in his absence, by the commissioner of the general land office, in the case before us, upon ex parte affidavits, can bind or affect his rights in the least degree, or be received as evidence to show that the alleged mistake in the entry in fact occurred. Aside from the letter of the commissioner of-the general land office, the evidence tending to show such mistake consists of the fact that Allen, some years after the entry, recorded the certificate, and also executed and delivered to a third party a warranty deed of the 8. W. J of the section, which, it is claimed, he applied in fact to enter; but this evidence is unsatisfactory and insufficient. The general doctrine is that when, in a court of equity, it is proposed to set aside or annul or correct a written instrument for fraud or mistake in the execution of the instrument itself, the testimony upon which this is done must be clear, unequivocal, and convincing, and that' it cannot be done on a bare preponderance of evidence, which-leaves the matter in doubt. The rule is well settled-that where the attempt is to annul or avoid grants, patents, •or other solemn evidences of title, emanating from the government of the United States under its official seal, the great importance and necessity of the stability of titles de--■mands that the effort to set them -aside, annul or avoid them, •or to correct mistakes in them, shall only be successful when •the evidence is clear, strong, and satisfactory. Maxwell Land-Grant Case, 121 U. S. 379-381; U. S. v. Des Moines Nav. & R. Co. 142 U. S. 541; U. S. v. Budd, 144 U. S. 161. There is, in our judgment, no legal or competent evidence an the case sufficient to sustain the contention upon which the defendant relies, that, by reason of the-alleged mistake, the lands in question never became taxable.

Eor these reasons, we hold that the patent to the land in question is, and has been, in full force and effect, and the ‘ land has been taxable, ever since the patent was issued, December 15, 1854.

The contention that the second tax deed was void because Woodward, the grantee therein, was a tenant in common : ■with his co-grantee in the first tax deed, is not maintainable. 'The land had been .sold in both instances to the county, and 'the tax deeds were issued to its respective assignees. It •does not appear when Woodward acquired the tax certifi- ■ •cate upon which he took his tax deed, nor that, when he acquired it, he was under any obligation, legal or equitable, to pay the taxes on account of which the sale was made, mentioned in the first tax deed, to Putnam and Woodward, or that he was then tenant in common with Putnam; nor does it -appear that Putnam, or any one claiming under or in privity with him, is making any objection to the validity of the tax deed to Woodward.

Other objections were made to the tax deeds, but thoy do not seem to require special attention. The circuit court, we think, erred in holding that the land did not become taxable.

By the Court. — -The judgment of the circuit court for Chippewa county is reversed, and the cause is remanded with'directions to render judgment as prayed for, in favor of the plaintiff, with nominal damages.

WiNsnow, J.

In my judgment, the findings of fact are amply sustained by the evidence. The fact was that Allen, in 1854, purchased and duly entered the S. W. J section, and received and recorded the proper duplicate receipt upon such entry, which receipt described said S. W. J. Neither he nor any one else ever purchased or entered, or tried to purchase or enter, the S. E. \ section, but a mistake was made in the land office at La Crosse, by which the entries in the books indicated that the S. E. ¿ section had been entered by Allen, and a patent was by mistake executed for said S. E. jr, but never delivered to Allen. These errors seem never to have been known to Allen. Under these, circumstances, the simple question is whether the S. E. \ became taxable by the state.

Certainly, the S. W. ¼ had become taxable, because it had been entered and paid for. The issuance of a patent was not essential. Ross v. Outagamie, 12 Wis. 29; Railway Co. v. Prescott, 16 Wall. 603. Only one quarter section had been sold, and hence only one became taxable, and that one was clearly the S. W. ¼ To hold that the S. E. ¼ was also taxable would be to hold that a wrhole half section had become subject to taxation, notwithstanding the fact that but one quarter section had been sold. This seems to me almost, if not quite, absurd.

There are no questions here of bona fide purchasers. The state could not tax lands which were owned by the United States. A tax-title claimant buys at bis peril. He is not a bona fide purchaser. He gets nothing unless the state had' legal power to tax the property. The question is whether the property belonged to Allen when it was taxed. If it did not belong to Allen, then it belonged to the United States, notwithstanding the erroneous patent, and was not taxable. The question whether it belonged to Allen or to the United States is the key to the whole problem, and it must necessarily be decided as though it arose between Allen and the United States, because neither the state nor the tax-title claimant is entitled to urge bonafides or estoppel. As-between Allen and the United States, Allen owned only one quarter section, and that was the S. W. and it necessarily follows that the title, i. e. the entire beneficial interest, in the S. E. ¼ remained in the United States, and hence was never taxable. Reynolds v. Plymouth Co. 55 Iowa, 90.

In my opinion the judgment should be affirmed.

MaRshall, J., took no part.