Fee v. Brown

This was an action of ejectment, originally brought in the district court of Arapahoe county, Colo., by Jane C. Brown against the plaintiff in error, Fee, to recover a tract of land in Pueblo county, to which plaintiff claimed title under a patent issued December 1, 1876, to Henry C. Brown. This land had been located by authority of certain scrip issued to the Chippewa Indians of Lake Superio under a treaty made with them September 30, 1854 (10 Stat. 1109), by which the Chippewas ceded to the United States certain lands theretofore owned by them, and in return the United States agreed to issue patents for 80 acres of land to each head of a family, or single person over 21 years of age, of mixed bloods. In executing this provision the beneficiaries were identified by the issuance of certificates called 'Chippewa Half-Breed Scrip.'

One Mary Dauphinais having received a scrip certificate as a beneficiary under such treaty, Henry C. Brown, the patentee, from whom the plaintiff claimed title, in February, 1867, purchased the scrip so issued to Mary Dauphinais from one Daniel Witter, who, acting as attorney in fact of Dauphinais, located the land in controversy. A patent was issued therefor in December, 1868, to Mary Dauphinais, the beneficiary. Under a second power of attorney, Witter, as her attorney in fact, immediately conveyed the patent title to Brown, who subsequently conveyed to Jane C. Brown through one Frank Owers, an intermediary.

In view of certain abuses and frauds which appear to have sprung up in relation to the issue, sale, and dealings in this scrip, as well as some conflicting rulings of the land department as to whether such scrip could be used to locate lands outside of the treaty cession, congress on June 8, 1872, passed an act authorizing the secretary of the interior to permit the purchase of such lands as might have been located with claims arising under the Chippewa treaty in question at a price not less than $1.25 per acre, and also permitting owners and holders of such claims in good faith to complete their entries, and to perfect their titles under such claims, provided the claims were held by innocent parties in good faith, etc.

In May, 1875, Brown, having been informed by certain judicial rulings of the invalidity of his title, by reason of the scrip having been located outside of the ceded territory, made application for the issue of a new patent under the provisions of the act of June 8, 1872, surrendered and relinquished to the United States all his rights under the Dauphinais patent, and, after a contest with one Smith, was adjudged by the secretary of the interior to be entitled to a new patent, which was accordingly issued to him December 1, 1876. This patent Fee attacked as void upon its face, and as having been issued without authority of law.

Defendant, Fee, settled upon the land in question on September 12, 1888, and upon the same date made application to the register of the land office at Pueblo, Colo., to enter the land as a homestead, under the laws of the United States, and tendered to the receiver of the land office his legal fees and commissions due upon making such application. This application is now, and was at the time this action was commenced, undetermined by the officers of the United States having control of the sale and disposition of the public lands. Fee has resided on the land ever since his settlement there, September 12, 1888, and was residing thereon when issue was joined in this action.

An order having been entered changing the venue to the county of Pueblo, defendant answered, denying the allegations of the complaint, alleging the invalidity of plaintiff's title, and setting up his own title under the homestead entry.

The court having sustained a demurrer to this answer, the parties entered into a stipulation, pursuant to which a judgment was entered in favor of the plaintiff for a recovery of the possession of the premises, and for a writ of possession. Defendant thereupon appealed the case to the supreme court of the state, which affirmed the judgment of the court below. 17 Colo. 510, 30 Pac. 340. Whereupon defendant, Fee, sued out a writ of error from this court.

J. M. Vale and C. C. Clements, for plaintiff in error.

[Argument of Counsel from pages 605-606 intentionally omitted]

James H. Brown, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion o the court.