Sanborn v. Knight

75 N.W. 1009, 100 Wis. 216, 1898 Wisc. LEXIS 226

• Court: Wisconsin Supreme Court
• Decided: June 23, 1898
• Status: Published

Opinions

Pinney, J.

The claim that the grant of May 5, 1864, through which the defendant claimed title to the single tract of land in question, under the Wisconsin Central Railroad Company, never attached to the land, by reason of the declaratory statement of Joseph LaPointe, filed March 10, 1856, is wholly destitute of merit. This claim or filing does not appear to have been pursued or acted on by any one. It clearly appears that La Pointe never made any settlement whatever upon the land mentioned in it, never inhabited or improved it, or did any work on it, and never erected any dwelling thereon. It appears that he never did anything upon or in relation to the land to fulfill the requirements of the law. The clear and satisfactory evidence produced at the trial disposes of all contention or room for it founded on the document in question. After filing this document, and during the same spring, La Pointe wholly abandoned his pretended settlement and alleged pre-emption claim. He moved across the Chequamegon Bay, taking with him his family, and made there an actual settlement and entry upon the northwest quarter of section 17, township 49, range 4 W., on the Sioux river, and then filed a subsequent or amended declaratory statement, May 23, 1856, alleging, in accordance with the truth, settlement on the 20th of that month, and afterwards, on June 29, 1857, proved up, paid the purchase money for the quarter section named, and obtained his patent for that land as a pre-emptor. This was an absolute abandonment and surrender of all pretensions or claims under the declaratory statement filed on March 10, 1856, and operated as a cancellation or relinquishment of it. The law allows but one pre-emption right, and but one pre-emption claim also, to one person. R. S. of U. S. sec. 2261. The second claim, however, is allowed in proper cases, and it is sometimes called an amendment of the first. In re Young, 1 Land Dec. Dep. Int. 443; In re Walsh, 6 Land Dec. Dep. Int. 168. It seems impossible to mistake the effect of the second proceeding upon La Pointe’s first declaratory statement. It utterly destroyed it, substituting for the land described in it an entirely different tract. Amacker v. N. P. R. Co. 15 U. S. App. 279, 58 Fed. Rep. 850.

We think, therefore, that the point of exception from the grant of lands in question by reason of the declaratory statement of Joseph La Pointe of March 10, 1856, wholly fails, and that the plaintiff and F. L. Sanborn, by the conveyance to them from the defendant, acquired a valid title and became lawfully seised of the premises in question in fee simple before the plaintiff began the present action. No cause of action, therefore, for breach of the covenant of seisin existed against the defendant. The defendant’s grantees obtained possession or seisin in fact of the premises, and possessed and enjoyed them under their deed. They had not, when this action was commenced, been evicted by paramount title, either actually or constructively, from any part of the premises, and no breach of the covenant of seisin contained in the defendant’s deed to the plaintiff and F. L. Sanborn had occurred.

For these reasons, the plaintiff was not entitled to recover, and the verdict in favor of the defendant was rightly directed, and judgment given in his favor.

By the Court.— The judgment of the circuit court is affirmed.