Ard v. Brandon

These two cases may be considered together, for the initial fact in defendant's (now plaintiff in error's) claim of right is the same in each case. The actions were commenced by the respective defendants in error as plaintiffs in the district court of Allen county, Kan., the first to recover the possession of the N. 1/2 of the N. E. 1/4 of section 11, township 26, range 20, and the other to recover possession of the W. 1/2 of the S. E. 1/4 of section 2, township 26, range 20. These two tracts, each of 80 acres, adjoin and are so situated as to be the subject of one homestead entry. Rev. St. §§ 2289, 2298.

The first of these tracts was on April 10, 1873, certified by the United States to the state of Kansas, and by it on May 19, 1873, conveyed to the Missouri, Kansas & Texas Railway Company. The second was patented November 3, 1873, by the United States directly to the Missouri, Kansas & Texas Railway Company. The respective plaintiffs hold under conveyances from the railway company.

A jury having been waived, the cases were submitted to the court upon certain admissions and the single testimony of the defendant. No special findings of fact appear in the record, but by both the trial and the supreme courts of the state the facts testified to as well as those admitted were treated as facts in the case. Among the matters admitted were these: 'At the time defendant made settlement he was duly competent to make a legal homestead or pre-emption, and has ever since been duly competent and qualified to make a valid homestead entry, and that he still resides on said land, with a wife and six children, and that he has all the required improvements to perfect a homestead or pre-emption. It is admitted that the W. 1/2 of S. E. 1/4, section 2, 26, 20 E., was selected by the Missouri, Kansas & Texas Railway Company, April 14, 1873, and it was patented to said company the 3d day of November, 1873, under the act of congress of July 26, 1866. The N. 1/2 of the N. E. 1/4 of section 11, 26, 20 E., was selected by both companies jointly,-Missouri, Kansas & Texas Railway Company and L., L. & G. R. R.,-August 8, 1872. This tract was approved to the state for the M., K. & T. Co., April 10, 1873, under the act of congress of March 3, 1863. Both tracts were selected as indemnity lands, and both tracts are over 12 miles from both roads, and lie within the indemnity limits of both the L., L. & G. and M., K. & T. R. R. Said defendant also testified that when said defendant settled on said land he did it in good faith, and for the sole purpose of making it his homestead.'

So much of defendant's testimony as bears upon his original occupation of the 160 acres, and his first transaction at the government land office, is as follows:

'The first work said defendant did on said land was about the last of June, 1866; that he broke about two acres of prairie and three hedge rows on said land, making about five acres in all. Then I went to the U.S. land office at Humboldt, Kan., which was on the 14th day of July, 1866, and there I made out a homestead application for said land, as described, and tendered the application and the land-office fees to the register of the U.S. land office, of which Watson Stewart was register of said land office, and at that time I was a single man and over 21 years of age, a citizen of the United States, and had never had the benefit of the homestead or pre-emption laws of the United States; but said register, Watson Stewart, rejected said application and fees, as he claimed, on the ground that said land was situate within the granted limits of the L., L. & G. R. R., and was double minimum lands, and that he could not let me homestead only 80 acres, as the land was double in price. Said register advised me if I wanted said 160 acres that I could first make a pre-emption filing on 80 acres of land, and put a house on said land within 12 months, and prove up and pay for it at $2.50 per acre, and then I could homestead 80 acres more, and by that plan I could get 160 acres; but said register told me that I could change a pre-emption filing at any time if I wanted to into a homestead; so I told said register, as he would not allow my homestead, I would make a pre-emption filing on part of the land, as he would not let me only on 80 acres; so he made out the filing, and I paid him a fee of $2, which he said was the fee.

'A copy is hereto attached and admitted as in evidence:

"No. 2115. Register's Office. Humboldt, Kansas, July 14th, 1866. I certify that Newton L. Ard has this day filed in this office his notice to claim by right of pre-emption the west half of the southeast quarter of section No. 2, in township No. 26 S., in range No. 20 east, of the sixth principal meridian, in the state of Kansas. $2,50 per acre, within R. R. limits. Watson Stewart, Register.'

'Said words and figures, $2.50 per acre, within R. R. limits,' being written in red ink transversely across the face of the certificate.'

It also appears from his testimony that subsequently, and in the fall of 1866 and the spring of 1867, he did further work on the land, and built a house thereon; that about July 1, 1867, he again went to the land office, but was told by Col. N. S. Goss, then the register, that he could neither change his pre-emption into a homestead entry nor prove up under the pre-emption law. In 1872 he made formal application to prove up on the land, but his application was denied by the local land officers. From this denial he prosecuted an appeal to the commissioner of the general land office, and thence to the secretary of the interior, by both of whom the decision of the local land officers was affirmed.

The judgments of the district court were in favor of the plaintiffs, which judgments were afterwards affirmed by the supreme court of the state on the ground that the legal title passed by the instruments offeced in evidence through the railway company to the plaintiffs, and that the decision of the land department upon the facts of defendant's occupation and improvements was conclusive as against his equitable rights. To reverse these judgments the defendant sued out writs of error from this court.

Wm. Lawrence, for plaintiff in error.

A. T. Bullon, A. B. Browne, and Geo. R. Peck, for defendants in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.