Tierney v. Cornell

3 Neb. 267

• Court: Nebraska Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

Maxwell, J.

This action was originally brought in the district court of Johnson county by the defendant in error, Horatio N. Cornell; against Kyron Tierney and others above named, who are plaintiffs in errdr in this court.

Cornell, in his petition, alleged that John Boulware, John Maulding, J. C. Lawrence, George W. Boulware, and A. P. Drake, were proprietors and occupants of the town site of Tecumseh, in said county, located on the south half of section twenty-eight (28), in township five (5), north, range eleven (11), east of the sixth principal meridian, in the district of lands subject to sale at Brown-ville, Nebraska; that John Boulware, at his own expense, caused said land to be surveyed, divided and platted into lots, blocks, streets, and alleys; that said lands being so occupied and improved as a town site, John W. Sayres, then being probate judge of the county, in pursuance of the act of Congress in such case made and provided, entered and purchased of the United States in the year 1857, the said lands above described, in trust for the several use and benefit of the occupants thereof; that the said John Boulware paid and delivered into the hands of the said probate judge, the full consideration for said lands, being at the rate or price of one dollar and twenty-five cents for each acre thereof, and amounting to the sum of four hundred dollars; that said probate judge having executed and delivered deeds of conveyance in severalty to all persons and occupants who were entitled thereto, did on the first day of July, 18.59, “ in consideration of the premises aforesaid,” sell and convey to John Boulware, by deed of general warranty, all the lands, lots, and blocks, in said town, which were not theretofore conveyed. And it is further alleged in the petition that Cornell has purchased the interest of the original proprietors of the town site, and holds the legal title to the same; that in the month of January, 1872, Tierney and the others above named, being the trustees of said town set up a claim of title to the lots described in the petition, and that on or about the thirteenth day of February, 1872, the'said trustees obtained from the probate judge of the county a deed for the lots in question; that on the 6th day of February, 1872, said trustees executed a deed of conveyance in trust to J. D. Russell, C. A. Holmes, and Alexander Bivens, to sell said lots at public sale, one-half of the proceeds to be paid to the corporate authorities ; that none of the defendants in the court below are in possession of any of said lots; and that the deeds so executed by them cast a cloud irpon Cornell’s title. The prayer of the petition is for an injunction, and that the cloud created by said deeds may be removed.

The answer denies substantially the allegations of the petition, except as to the deeds made Feb. 6, 1872, and Feb. 13, 1872, and alleges that John Boulware, George W. Boulware, John Maulding, J. C. Lawrence, and A. P. Drake were not at the time the town site was entered, occupants of any part of said town site. The answer also alleges that there being no corporate authorities of said town, the probate judge of said county having entered said land as aforesaid, forthwith gave public notice of the facts of such entry in the manner required by law, and proceeded to execute the said trust in pursuance of law and the statutes of Nebraska, and made, executed, and delivered to each and every one of the occupants of said town site, a deed in fee-simple for such part or parts, lot or lots, of such land in said town site, as each of the said occupants was lawfully entitled to; and that every person who was entitled to a deed of conveyance from the probate judge as an occupant of the town site, did or should have received such deed before the fifteenth day of April, 1859.

The testimony was taken before a referee, and the cause heard at the adjourned term of the court held in January-1873. The court found all the issues in favor of Cornell and rendered a decree as prayed in the petition.

A motion for a new trial was filed, the grounds assigned therefor being:

“First. Because the finding in this case is not sustained by sufficient evidence, and the decision of the court is not sustained by sufficient evidence, and is contrary to law.

Second. Because of error of law occurring at the trial and excepted to by defendant.

Tim'd. Because of irregularities by which defendants were prevented from having a fair trial.

Fowrth. Because of the admission of improper testimony excepted to at the time.”

As this cause comes here by petition in error, no errors can be considered except such as were assigned in the motion for a new trial.

Upon the trial of the cause Cornell offered in evidence patents from the United States, to John W. Sayre, Judge, etc., for the tract of land occupied by said town, and three deeds executed by the probate judge of said county, and delivered to John Boulware. The first of said deeds, dated April 15, 1859, conveyed in fee to said Boulware fifty-four lots in said town. The second of said deeds, of the same date, conveyed in fee twenty-two lots in said town. The third deed, dated July 15, 1859, conveyed to John Boulware, “ as trustee for the special use and benefit of the shareholders, and all persons having a legal interest in said town site, all lands, lots and blocks which are not deeded up to this date.” The defendants in the court below objected to the introduction of these deeds in these words: “Three deeds from probate judge Sayre to John Boulware to which defendants except and object. Objection overruled. Defendant excepts.” No reason is given why these deeds should not be used as evidence, and this court has already decided that where objection is made to the admission or rejection of testimony, the reason should be given. Morgan v. Larsh, 1 Neb., 363.

Cornell also introduced deeds tending to prove that he now holds the legal title of Boulware, and his associates for the lots in question. Tax receipts .for the taxes of the years 1866, 1867, 1868 and 1869, were also introduced by him, and evidence to prove that John Boulware paid four hundred dollars to enter the land in question.

On the part of the defendants in the court below, J. C. Lawrence,' one of the original proprietors, testified that he caused a house to be built on the town site in 1857, but did not occupy it himself; that in the year 1860, he moved on the town site and continued to reside there for five years thereafter; and that he never knew of the Boulwares, Drake, or Hixen erecting a dwelling house on the town site.

John Maulding, one of the original proprietors, testified that he paid eleven' dollars of the fees for entering the town site; that he had lived on the town site for the last five or six years; that at the time of the entry of the town site the Boulwares lived at Nebraska City; that Lawrence also lived at Nebraska City; that he did not think Hixen or Drake were in the country; and that Dr. William S. Walker, C. A. Goshen, Eield. and Trick, were all the persons that he remembered as living on the town site at the time.

Copies of the county commissioner’s record were also introduced showing the first organization of the town, by the appointment of trustees, Feb. 4, 1867; also an entry dated Aug. 3, 1868, declaring the town a body corporate; also an entry dated June 7, 1869, ordering a dissolution of the incorporation, at the request of a majority of the taxable inhabitants; also an entry dated January 29, 1872, declaring the town a body corporate, and appointing Tierney, Bryant, Mayberry, Davis, and Crossen, plaintiffs in error, trustees; also tbe organization of tbe town company Nov. 17, 1856, whereby it appeared that John Boulware, had thirty shares, J. O. Lawrence, thirty shares, I. P. Drake, thirty shares, G. W. Boulware, thirty shares, A. ITixen, thirty shares, and twenty vacant shares, being two hundred shares in all, and that J. O. Lawrence was president of the company, and W. T. Walker, secretary; and an agreement to build houses on the town site, under pain of forfeiture.

The chief defense relied on by the plaintiffs in error, appears to be the fact that none of the parties, through whom Cornell claims title, were occupants of the town site at the time of the entry thereof by the probate judge of Johnson county, in January, 1859, and we are referred to the case of Cash and Spaulding, 6 Mich., 193, to show that no title passes by a deed in such a case.

That was an appeal from the decision'of Judge Goodwin, judge of the district court. On the 20th day of June, 1857, Henry Selby presented his petition to the circuit judge, representing that he was equitably entitled to the undivided half of lot six (6) in section twenty-five (25) within the limits of the town site of Ontonagan of which he was then in the actual occupancy and possession as tenant in common with James K. Paul; that he acquired the right thereto by a quit claim deed from said Paul, dated November 1, 1856; that there was no other claimant or person in possession claiming adversely to petitioner and Paul; and he therefore prayed the judge, as trustee, under an act of the legislature, to hold in trust and convey lands included in the town site of Ontonagan, to allow his claim and execute a deed of said premises to him. Daniel S. Cash appeared and excepted to the jurisdiction of the circuit judge to proceed to adjudicate upon claims and lots, or other execution of the trust, on the ground that the legislature had provided no such rules and regulations for the execution of the trust, as were contemplated by the act of Congress of May 23, 1844. These exceptions were overruled, and Selby then filed an amended petition, setting forth in addition to the above, that the lot contained seventeen and sixty one-hundredths acres, and that petitioner took possession in April, 1855, and built a house thereon. Cash answered the amended petition, averring that the lot was never occupied by any person for the purposes of trade and that Cash had a valid claim thereto as preemptioner. The legislature of the state of Michigan passed an act, which was approved January 29, 1853, whereby the district judge was authorized to enter the several lots on section twenty-five, including only so much as was actually within the town site, and the trustee was directed to convey the lots, by granting to James K. Paul such lots as he might' hold free from the claims of any other person by virtue of an equitable preemption thereto, and to all other occupants such lots as they held by virtue of contract with Paul. No other rules and regulations were made on the subject by the legislature. The court says, “ Mr. Cash does not claim to have occupied the land as' a trader, or as the inhabitant of a town, and his occupancy, therefore, would not come within the act of Congress, and if any portion of the subdivision-had been occupied legitimately for town purposes he could not pre-empt it, and the law does not allow the judge to enter any sub-division not settled and occupied as a town site, and if this was not so occupied it was not withdrawn from private pre-emption. While the act of Congress leaves the details of the use of the proceeds to the surplus fund, to be regulated by the legislature, it is very clear that the law designed that they should be used for the common benefit-in some way. * * * In the absence of any legal representative, at least, we think any one interested had a right to appear and protect the common fund. The legislature created the trustee a tribunal, but instead of empowering him to do impartial justice, undertook by the act itself to dispose substantially of the whole matter. The whole tract is given to James K. Paul and his grantees. No one else was authorized to be considered or receive relief. The trust cannot legally be carried out under such a law.”

And Judge Manning in the same case, page 214, says: “ The act leaves it altogether to the local legislature, if the power be not in the trustee, to determine what disposition shall be made, within the objects of the trust, of town lots belonging to the community at large, and of the proceeds of such as may be sold.”

The court held substantially, that the legislature had undertaken to dispose of the whole trust to Paul and his grantees, and authorizing no one else to be considered, and that as the act did not provide rules and regulations for the administration of the trust, it was therefore, void. There is not the least intimation in the opinion of the court, 'that with proper rules and regulations, allowing the trustee to decide who were entitled to a conveyance of any portion of the land held in trust, that if he erroneously conveyed to a party not entitled thereto, that the deed would be void, and would pass no title. Yet that is substantially what is claimed by the plaintiffs in error in this case. Our statute in force at that time, regulating the disposal of town sites, provided that the corporate authorities of the town, if incorporated, and if not incorporated, then for the probate judge of the county wherein the town was situated, to enter at the proper land office, the land so settled upon and occupied, and hold the same in trust for the several use and benefit of the occupants thereof, .and those holding deeds or otherwise according to their respective interests, and deeds to be made accordingly. There was also a provision for determining the rights of adverse claimants to lots, and allowing an appeal to the district court.

The act of Congress provides that if the town is not incorporated, the judges of the county court of the county in which such town may be situated, shall enter at the proper land office, and at the minimum price, the land so settled and occupied, in trust for the the several use and benefit of the occupants thereof, according to their respective interests; “ the execution of which trust as to the disposal of lots i/n such town, a/nd the proceeds of the sales thereof \ to he conducted wider such rules a/nd regulations as may he prescribed hy the legislative authority of the state or territory i/n which the same is situated. Provided, that any acts of said trustees not made in conformity to the rules and regulations herein alluded to, shall be void and of none effect.”

The trustee in a case of this kind, in deciding who are entitled to lots under the trust, acts in a judicial capacity and cannot delegate his authority to another; and if in making the trust deed dated July 1, 1859, he had done so, the deed would be void. But the answer admits that the probate judge entered the land and forthwith gave public notice, as required hy law, of the fact of entry, and proceeded to execute said trust in pursuance of law a/nd the statutes of Nebraska, and made, executed, and delivered, to each and every one of the occupants of said town site, a deed in fee-simple for such part or parts, lot or lots, of said land in said town site as each of said occupants were lawfully entitled to.

Inasmuch as our statute then in force provided that the probate judge was to make deeds to occupants and those claiming by deed or otherwise, it necessarily gave that officer the power to decide who were entitled to deeds, with the right of appeal from such decision to a higher court. And such a decision can not be assailed in a collateral proceeding, although it might be impeached for fraud. 2 Phillips on Evidence 19, note 262.

And where a statute, which confers the means of acquiring a right, prescribes an adequate special mode of determining by a judicial investigation, the fact upon which the right depends, that mode must be exclusive. State v. Marlow, 15 Ohio State, 114. The Little Miami R. R. Co. v. Whitacre, 8 Id., 590.

The provision of the act of Congress that any acts of said trustee, not in conformity to the rules and regulations prescribed by the legislature, should be void, can only apply to acts committed without authority; and it does not change the rule that acts of a municipal officer, done without authority, are void.

The law will presume official acts of public officers to have been rightly done unless the circumstances of the case overturn this presumption; and acts'done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter. Bank of The United States v. Dandridge, 12 Wheat., 70. Combs v. Lane, 4 Ohio State, 112. Ward v. Barrows, 2 Id., 241.

Parsons says “ cases often say that fraud makes a contract absolutely void, but by this it cannot be meant that the innocent • party cannot waive the fraud and insist on the contract. And such a waiver would be inferred from his continuing to treat as his own, the property which came to him by reason of the fraud. The mere lapse of time, if it is considerable, goes far to establish a waiver of this right; and if it be connected with an obvious ability on the part of the defrauded party to discover the fraud at a much earlier period, by the exercise of ordinary care and intelligence, it would be almost conclusive.” 2 Parsons on Contracts, 782.

It is not claimed by the plaintiffs in error, that the full value of the lots in controversy was not paid at the time of tbe purcbase, nor is there any offer on tbeir part to restore tbe purcbase money. It appears that all tbe facts in relation to tbe purcbase by John Boulware and other shareholders, were well known to tbe occupants of tbe town for more than twelve years prior to January 29, 1872, and no objection whatever made to Cornell’s title.

Tbe equities of tbe case are clearly with tbe defendant in error, and the judgment of tbe court below must be affirmed.

Judgment affirmed.

Chief Justice Lake concurs.