Lee Clark v. Monroe Herington

On May 20, 1899, Monroe D. Herington, the defendant in error, recovered a judgment in the district court of Labette county, Kansas, against Lee Clark, for the sum of $3,032.28, which judgment was affirmed by the supreme court of that state on November 10, 1900. Thereupon the case was brought here on writ of error.

The facts are these: The action was one to recover damages for breach of warranty in the conveyance of a part of section 22, township 15, range 5, in Morris county, Kansas. The tract was outside the place and within the indemnity limits of the land grant made July 26, 1866 (14 Stat. at L. 289, chap. 270), to the Union Pacific Railroad Company, Southern Branch, a corporation whose name was subsequently changed to Missouri, Kansas, & Texas Railroad Company. The railroad company duly constructed its road, and, failing to obtain with the place limits the full quota of lands granted to it, selected, on October 22, 1877, the tract in controversy among others in lieu thereof. At the time of such selection the tract was unimproved and without actual occupation. The selection was approved by the Commissioner of the General Land Office, but no patent was issued. On September 5, 1884, the railroad company conveyed the land to Lee Clark. He conveyed by warranty deed. Herington is a subsequent grantee in the chain of title, and is also the assignee from Clark's immediate grantee of all his rights under Clark's deed, including the right to recover damages for any breach of the covenants therein contained.

The tract was in an even-numbered section and within the place limits of the grant, made by acts of Congress of date July 1, 1862 (12 Stat. at L. 489, chap. 120), and July 2, 1864 (13 Stat. at L. 356, chap. 216), to the Union Pacific Railroad Company, Eastern Division.

On July 21, 1886, the selection by the Missouri, Kansas, & Texas Railroad Company was canceled by order of the Commissioner of the General Land Office. Notice of this order was given to the railroad company, as also time to appeal therefrom, but no appeal was ever taken. On July 28, 1888, E. M. Cox, who had, on July 31, 1886, taken forcible possession of the land, filed his declaratory statement, claiming settlement. On July 26, 1889, he made final proof, paid the government price, and received his patent certificate. Thereafter on October 15, 1890, a patent was issued to him.

Messrs. James Hagerman, T. N. Sedgwick, and J. M. Bryson for plaintiff in error.

Mr. John H. Mahan for defendant in error.

Mr. Justice Brewer delivered the opinion of the court: