Whitcomb v. White

This was an action brought by John E. White and Roberta B. White, his wife, in the district court of the first judicial district of the state of Idaho, in and for the county of Kootenai, to recover the possession of the 'northwest quarter of the southwest quarter and lots five (5), six (6), and seven (7), of section two (2), township fifty-five (55) north of range two (2) east, Boise meridian.'

The defendants' answer was in the nature of a cross bill in equity, admitting that the legal title to the premises was in the plaintiffs, and seeking to charge them as holders of that title in trust for the use and benefit of the defendants. A trial before the court without a jury resulted in a judgment for the plaintiffs for the recovery of possession, and damages for the detention. On appeal to the supreme court of the state, the award of damages was set aside, but the judgment for the recovery of possession was affirmed. Thereupon the case was brought here on error.

The plaintiffs' title was a patent from the United States to plaintiff John E. White, based upon a homestead entry. The defendants claimed to have been occupants of the premises as a town site, and that therefore the land was not subject to entry as a homestead. The application for the homestead entry was formally made at the land office a few hours before that of the probate judge of the county, acting under the statutes as trustee for the occupants of the town site. A contest was had in the local land office, which resulted in a finding in favor of the plaintiff John E. White. This decision was sustained by the Commissioner of the General Land Office and affirmed by the Secretary of the Interior.

Mr. Albert Allen for plaintiffs in error.

Messrs. George H. Lamar and H. M. Stephens for defendants in error.

Statement by Mr. Justice Brewer:

Mr. Justice Brewer delivered the opinion of the court: