Hutchinson Invest Company v. Caldwell

Statement by Mr. Chief Justice FULLER:

This was an action brought by John Caldwell against D. B. Miller (for whom the Hutchinson Investment Company was substituted) and L. B. Miller in the district court for Reno county, Kan., to have his title established and recover possession of the northeast quarter of section 12, township 23 S., R. 6 W., in that county. The case was submitted to the district court for trial, a jury being waived, and the court made special findings of fact, and gave judgment in favor of the defendants, whereupon the cause was taken on error to the supreme court of Kansas. The supreme court reversed the judgment of the court below, and remanded the cause with a direction to enter judgment upon the findings of fact in favor of Caldwell and against the defendants for an undivided 13-28 of the land and damages for its detention, (23 Pac. 946;) and thereupon this writ of error was brought.

The facts necessary to be stated were, in brief, these: Robert Titus was married to Phoebe Thomas in Vermont in 1809, and the sole issue of this marriage was Alden W. Titus, born in October, 1810. After the birth of this son, Robert Titus, having gone into the War of 1812, abandoned both wife and child, and, in 1818, without having obtained a divorce, had a marriage ceremony performed between him and Miriam Lee in the state of New York. By her he had five children, of whom the youngest was a daughter, Lois, who married D. B. Miller. From 1850, Robert Titus lived with Mr. and Mrs. Miller, and in 1871 the family went to Reno county, Kan., and settled there. July 10, 1871, Robert Titus made a pre-emption entry upon the land in controversy, but died before consummating his pre-emption claim. After his death, D. B. Miller, administrator of his estate, filed the necessary papers to complete the pre-emption, paying the price thereof, $400, to the United States, with his own money, and, April 20, 1874, a patent to the land was issued, to the effect that 'the United States of America, in consideration of the premises and in conformity with the several acts of congress in such cases made and provided, have given and granted, and by these presents do give and grant, unto the said heirs of Robert Titus, deceased, and to their heirs, the tract above described, to have and to hold the same, together with all the rights, privileges, immunities, and appurtenances of whatsoever nature belonging, unto the said heirs of Robert Titus, deceased, and to their heirs and assigns forever.' The children of Robert Titus and Miriam Lee were notoriously recognized by Robert Titus as his own, and no question was ever raised as to their legitimacy until in this suit. D. B. Miller claimed the fee simple title to the land by conveyances from the heirs of Alden W. Titus, as the only heir of Robert Titus, deceased; and if the children of Robert Titus and Miriam Lee were heirs, within the meaning of section 2269 of the Revised Statutes of the United States, then Caldwell was entitled to recover an undivided 13-28 of the land, and damages. The opinion of the supreme court of Kansas, by Horton, C. J., is reported in 44 Kan. 12, 23 Pac. 946.