Clark v. Titus

BARNES, J. This was a suit to recover six lots in the city of Tombstone, Cochise county. The case was tried by the court without a jury. The case comes up on the findings of the court below, and it is not necessary to look carefully into the evidence. Errors were assigned upon the admission of evidence, but, in the view we take of the case, it is not necessary to consider them. The findings are that on March 20, 1880, the corporate authorities of the town of Tombstone, made application for a patent for lands for a town-site, as is provided in section 2387, Rev. St. TJ. S. On September 20, 1880, a patent was issued, which recites that the mayor and eouncilmen of the town of Tombstone, in trust for the several use and benefit of the inhabitants of the town, had purchased said premises; and the United States conveys and grants to Alder Abner Randall, mayor as aforesaid, in trust as aforesaid, and to his successors and assigns, in trust as aforesaid, subject to all the conditions contained in section 2387, supra; that on November 8, 1880, said Alder Abner Randall, mayor as aforesaid, duly executed a deed as such mayor, whereby he, for a valuable consideration, granted and conveyed unto James S. Clark, M. E. Clark, M. Gray, and John D. Rouse a large number of lots and blocks, situated on said Tombstone town-site, including the premises in controversy; that plaintiffs are grantees from the above grantees; that on the eight day of November, A. D., 1880, more than.three-fourths of the lots within the town-site of Tombstone were wholly vacant, unoccupied and unimproved, and a number of the remaining lots had been improved'by, and were in the actual occupation of, parties other than the grantees in said deed from Randall, mayor; that when defendant entered upon said lots sued for, the same were wholly vacant, unoccupied and unimproved, and that neither plaintiffs, nor any one [152] through whom they claim, had been in the actual occupation thereof; that as a matter of law, plaintiffs acquired the legal title to said premises by said deed of Randall, mayor, and had the right of possession; and that defendant never had any right in said premises. The rights of the plaintiffs and this whole case hang on the validity of the deed from Randall, mayor. The deed is an indenture between the common council, the corporate authorities, of the town of Tombstone, the parties of the first part, and J. S. Clark, M. E. Clara, M. Gray, and J. D. Rouse parties of the second part, and recites that Alder Randall was mayor, and Gray and others eouncilmen, when said deed was made; and that said grantees had claimed the lots thereinafter conveyed, and that they were the owners and occupants thereof; and in consideration of the premises, and of $5.80, granted,' bargained and sold to the parties of the second part 2,168 lots out of the total 2,394, composing the whole town-site, to have and to hold the same, J. S. Clark, an undivided one fifth; M. E. Clark, two-fifths; J. D. Rouse, one-fifth; and M. Gray, one-fifth; Signed “Alder Randall, Mayor/" etc. The act of congress (Rev. St. U. S. § 2387) provides that the “corporate authorities” may enter at the proper land-office land settled and occupied, in trust for the several use and benefit of the occupants thereof; the execution of which trust as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such regulations as the state or territory may by law provide. The deed by Randall, on its face, was a violation of the trust imposed upon him by law. Out of 2,394 lots he deeded 2,168 to four persons, not in severalty as occupants, but to them as tenants in common. The findings of the court show that at the time said deed was made three-fourths of the lots were vacant, including the lot sued for. The mayor held the title to these lots in trust for the occupants. He had no power to convey the title to anyone but to occupants. The legislature of the territory had the power to regulate the manner of disposal of the lots and the execution of the trust. But there was no power to change or alter the conditions of the trust. The very object and purpose of the law was to prevent any pri [153] vate person or corporation from getting title to the lots included in such a town-site, and holding the same for purposes of speculation. If any profit was to accrue from the sale of such lots, it was carefully guarded for the benefit of the inhabitants of the town. Here was a bold attempt to transfer substantially this whole town-site to four persons which would! enable them to speculate off of the present and future inhabitants of the town. It was a legal and actual fraud which- ought not to be countenanced for a moment. The deed conveyed to parties no other title than Randall had, and so the title remained in whoever held the legal title in trust for the “several use and benefit of the occupants” of the said town. Any act of the legislature which would create a breach of such trust is void. This same question was before the supreme court of Kansas in the cases of Winfield Town Co. v. Maris 11 Kan. 128, and Independence Town Co. v. De Long, 11 Kan. 153. In that state there existed the same statute as our section 11, c. 80, Comp. Laws, viz: “All persons who select and lay out a town-site, and their assigns, shall be deemed occupants thereof, and the lots embraced therein, within the meaning of the above-mentioned act of congress, and deeds shall be made accordingly.” That court holds that, so far as that section gives a town company or persons who select and lay out a town-site any advantage over any other occupant, it is inoperative. “The legislature, in prescribing the rules for the execution of the trust, cannot change it by substituting other parties to receive its benefits than those indicated in the law of congress.” If individuals or town companies choose to lay out lands for town-site, and make money by that means, there is no law to prevent it; but they cannot pre-empt the public domain for that purpose under the law of congress. That law was made for the benefit of the occupants of the town, and not for speculators. The law of congress has received a construction similar to that which we have given it, in the case of Cash v. Spalding, 6 Mich. 193; and while the court was divided on one of the questions raised, yet on this point both the opinion of the court and the dissenting opinion agree. Reference is made to Leech v. Ranch, 3 Minn. 448, (Gil. 332,) and Castner v. Gunther, 6 Minn. [154] 135, (Gril. 63,) as making a different ruling; but tbe decisions do not sustain tbe opinion claimed for tbem. In tbe last-cited case tbe learned judge wbo delivered tbe opinion of tbe court states that be bolds with tbe decision in Michigan, but that point was not before tbe court. Tbe judgment of tbe court below is reversed.