Hussman v. Durham

This case comes up on error to the supreme court of the state of Iowa. The facts are these: On May 19, 1858, Robert Craig located bounty land warrant No. 27,911, issued to William Long under the act of congress of March 3, 1855 (10 Stat. 701), upon the land in controversy, and obtained from the proper land officer a certificate of location. This certificate was recorded in the office of the recorder of Carroll county, the county in which the land is situated. No patent was issued thereon. On February 1, 1864, the secretary of the interior canceled the land warrant, under authority of an act of congress of date June 23, 1860 (12 Stat. 90). This act provided that whenever it should appear that any land warrant was lost or destroyed, whether the same had been sold or assigned by the warrantee or not, the secretary of the interior should cause a new warrant to be issued, which new warrant should have all the force and effect of the original, and upon such action the original warrant was to be deemed and held to be null and void, and any assignment thereof fraudulent; and, further, that 'no patent shall ever issue for any land located therewith, unless such presumption of fraud in the assignment be removed by due proof that the same was executed by the warrantee in good faith and for a valuable consideration.' The second section authorized the secretary to prescribe such rules and regulations as might be appropriate for carrying the act into effect. It was alleged in the petition filed in this case that, the assignment on the warrant purporting to be that of Long, the warrantee, was a forgery, and this allegation was admitted by the defendant. The action of the secretary was taken without, so far as appears, any notice to Robert Craig. Nothing was done, either in the local land office or in the land department at Washington, to formally cancel the certificate of location. Up to the year 1886 the records of the land department showed on their face a full, equitable title passing to Robert Craig by virtue of his certificate of location, and payment therefor in a land warrant. During these years the land was subjected to taxation by the officers of Carroll county, Iowa, and was sold for nonpayment of taxes; and the titles under such tax sales passed to Bernhard Hussman, defendant below.

In 1886 William H. Durham, plaintiff below, having obtained conveyances from Craig, applied to the land department for leave to purchase the land upon payment of the regular price. This application was granted under authority of rule 41 of the department of the interior, published on July 20, 1875, which reads as follows:

'When a valid entry is withheld from patent on account of the objectionable character of the warrant located thereon, the parties in interest may procure the issuance of a patent by filing in the office for the district in which the land is situated an acceptable substitute for the said warrant. The substitution must be made in the name of the original locator, and may consist of a warrant, cash or any kind of scrip legally applicable to the class of lands embraced in the entry.'

The money, $150, was paid by Durham in 1888, and a patent issued, of date October 3, 1889, to Robert Craig, his heirs and assigns. It recited a payment by 'F. M. Hunter, trustee for Robert Craig,' and was delivered to said trustee, to be held until the rights of these parties could be judicially determined. Thereupon Durham commenced this suit in the district court of Carroll county, Iowa, to quiet his title as against the defendant, holding the tax titles. The district court entered a decree in his favor, which was affirmed by the supreme court. 88 Iowa, 29, 55 N. W. 11.

C. C. Cole, for plaintiff in error.

C. C. Nourse, for defendant in error.

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