Hill v. McCord

This was a suit in equity commenced in the circuit court of Douglas county, Wisconsin, by Warren E. McCord, to obtain a decree adjudging the defendant, now plaintiff in error, John F. Hill, the holder of the legal title to the northwest quarter of section seventeen, in township forty-eight north, of range eight west, in Bayfield county, Wisconsin, in trust for the plaintiff. A demurrer to an amended complaint was sustained by the circuit court, but this ruling was reversed by the supreme court of the state. 111 Wis. 499, 84 N. W. 27, 85 N. W. 145, 87 N. W. 481. Thereafter an answer was filed, a hearing had, resulting in a decree for the plaintiff, which was affirmed by the supreme court (117 Wis. 306, 94 N. W. 65), and thence the case was brought here on error.

The following facts were found by the trial court, and the findings were sustained by the supreme court: One Philip W. Jacobus made an actual settlement on the land in controversy on January 28, 1891, and actually established his residence thereon February 4. The land was not opened for entry until February 23, 1891, and on that day Jacobus made application at the local land office to enter it as a homestead. On the same day Hill filed a soldier's declaratory statement for the same tract. A contest was had before the local land officers, resulting in a decision in favor of Jacobus. On appeal to the Commissioner of the General Land Office, this decision was affirmed. Hill's declaratory statement was canceled, and the entry of Jacobus allowed on July 6, 1892. On September 20, 1892, Jacobus commuted his homestead entry, making and filing in good faith due, regular, and truthful proofs of settlement, occupation, and improvements, paying $400, and receiving a receiver's receipt and a certificate of entry certifying that he had purchased the land, and made full payment, and was entitled, on presentation of the certificate to the Commissioner of the General Land Office, to receive a patent.

On December 27, 1892, McCord and one Daniel McLeod purchased the land in good faith of Jacobus, paying him the sum of $4,250, and receiving a warranty deed. The negotiations between these grantees and Jacobus commenced on or about December 17, 1892, and prior to that time they had no interest in the land, and had no negotiations with him. While negotiating with Jacobus they asked Hill, at the time residing on a part of the tract, whether he had any claim upon the land, and whether Jacobus had good title thereto; and Hill then and there said to them that he had been fairly beaten in his contest with Jacobus, that he had no claim, and that if McCord and McLeod would buy the tract he would make no claim. At that time Hill knew that they were looking at the land with a view of purchasing it from Jacobus, and that the inquiry was made of him with reference to that purchase; and they did in fact rely upon Hill's statement, and purchased the land and paid for the same by reason thereof.

A few days after the deed, and on January 4, 1893, for the purpose of putting the understanding between themselves and Hill in writing, the grantees had this instrument executed and acknowledged by Hill:

For the purpose of making a settlement with John F. Hill, and his relinquishment on the N. W. 1/4 of section 17, township 48, range 8 W., we hereby make him a present of a certain lot of logs, now skidded on said land, and give him permission till the 1st day of May, A. D. 1893, in which to enter on said land to remove said logs, and to occupy the house on said land, and to remain on said land until that date, but not thereafter. Said logs amount to about 30,000 feet; and he agrees not to cut, nor allow any of his men to cut or destroy, any other timber. And in consideration of said logs, I, John F. Hill, being duly sworn, on oath, says that he is the man who made a soldier's application for said N. W. 1/4 of 17-48-8 W.; and I make this affidavit for the purpose of relinquishing all my right, title, and interest in and to said claim, which I do unto the United States. Signed, sealed, and delivered and agreed upon this 4th day of January, A. D. 1893. Daniel McLeod. In presence of—W. E. McCord. [Seal.]

W. H. Packard. John F. Hill. [Seal.]

Tracy Lyon.

Prior to the commutation, and on March 3, 1891, Congress had passed an act amending § 2301 of the Revised Statutes so as to read as follows:

'Nothing in this chapter shall be so construed as to prevent any person who shall hereafter avail himself of the benefits of § 2289 (U.S.C.omp. Stat. 1901, p. 1388), from paying the minimum price for the quantity of land so entered, at any time after the expiration of fourteen calendar months from the date of such entry, and obtaining a patent therefor, upon making proof of settlement and of residence and cultivation for such period of fourteen months.' 26 Stat. at L. 1098, chap. 561, U.S.C.omp. Stat. 1901, p. 1406.

Neither Jacobus nor the land officers had any actual knowledge or information of this enactment at the time of the commutation. On May 15, 1893, the Assistant Commissioner of the General Land Office of the United States, having had his attention called to the act, notified Jacobus that he must furnish supplemental proofs showing residence and cultivation for a period of fourteen months subsequent to July 6, 1892, together with an affidavit that he had not alienated the land. Of course, compliance with this was impossible, for Jacobus had already made a conveyance. On September 1, 1893, McCord and McLeod, with their wives, made to Jacobus a deed of conveyance of the land for an expressed consideration of $4,300, and Jacobus at the same time executed to them a mortgage upon the lands to secure the payment of the purchase money. On or about September 12, 1893, Jacobus caused to be made and filed in the local land office, in response to the order of supplemental proofs, certain affidavits and proofs, from which it appeared that the land was conveyed to McCord and McLeod and reconveyed, as hereinbefore stated; that Jacobus retained 2 acres of the land, and shortly after the sale of the said premises, and on or about February 20, 1893, he again went upon the land, and from that time up to the time of the filing of the affidavits continued to reside upon and improve the land. It did not appear that the purpose of the reconveyance and the return of Jacobus to the land was to obtain a title for the benefit of McCord and McLeod.

On or about September 30, 1893, Hill filed in the local land office contest affidavits and objections to the receiving of said offered supplemental proofs. A hearing was had upon this contest and a large number of witnesses sworn. On August 9, 1894, the local land officers decided the contest in favor of Hill, and filed an opinion, in which they held that the residence of Jacobus up to the time of the sale and conveyance to McCord and McLeod in December, 1892, was fairly satisfactory, but that his residence after the sale and conveyance was for the sole purpose of enabling him to make proof to secure title for them, and that the land was reconveyed to him for that purpose alone. On appeal to the Commissioner of the General Land Office the findings of the local land officers were affirmed. On further appeal to the Secretary of the Interior the prior decisions were, on April 28, 1896, affirmed without any restatement of facts. On June 3, 1896, Congress passed an act containing the following provisions (29 Stat. at L. 197, chap. 312, U.S.C.omp. Stat. 1901, p. 1409):

'That whenever it shall appear to the Commissioner of the General Land Office that an error has heretofore been made by the officers of any local land office in receiving premature commutation proofs under the homestead laws, and that there was no fraud practised by the entryman in making such proofs, and final payment has been made and a final certificate of entry has been issued to the entryman, and that there are no adverse claimants to the land described in the certificates of entry, whose rights originated prior to making such final proofs, and that no other reason why the title should not vest in the entryman exists except that the commutation was made less than fourteen months from the date of the homestead settlement, and that there was at least six months' actual residence in good faith by the homestead entryman on the land prior to such commutation, such certificates of entry shall be in all things confirmed to the entryman, his heirs and legal representatives, as of the date of such final certificate of entry, and a patent issue thereon; and the title so patented shall inure to the benefit of any grantee or transferee in good faith of such entryman subsequent to the date of such final certificate; Provided, That this act shall not apply to commutation and homestead entries on which final certificates have been issued, and which have heretofore been canceled, when the lands made vacant by such cancelation have been re-entered under the homestead act.

'Sec. 2. That all commutations of homestead entries shall be allowed after the expiration of fourteen months from date of settlement.'

Thereupon Jacobus made a motion before the Secretary of the Interior for a review of the decision of April 28, 1896, and also to confirm his entry under the authority of said act of June, 1896, which motions were denied. A patent was subsequently issued to Hill.

Messrs. W. F. Bailey and W. H. Stafford for plaintiff in error.

Messrs. Louis K. Luse, Lyman T. Powell, and A. L. Sanborn for defendant in error.

Statement by Mr. Justice Brewer:  Mr. Justice Brewer delivered the opinion of the court: