Singer Manufacturing Co. v. Tillman

BARNES, J. This was a bill to quiet title by the plaintiff against defendants in possession. Plaintiff claims through a deed from the sheriff under a judicial sale for the foreclosure of a mortgage. The sheriff ’s deed, is of date July 3, 1884. The lot sued for had been part of the public domain until April, 1883, when the probate judge made a deed to defendant Tillman, who, at the time, was an occupant of the premises, .and had been from February, 1882, and has been ever since and is now an occupant with his co-tenant, Weeden. Under the act of Congress of March 2, 1867, for the relief of citizens of towns upon the lands of the United States, the probate judge of any county in Arizona had the power to enter land occupied as a town-site, and after such power had been exercised [127] by the probate judge, and the lands entered and patented, the power cannot be questioned. The probate judge, after entering such land, holds it in trust for the benefit of those actually occupying the- town-site, and it is his duty to make deeds therefor to the actual occupants, respectively, and to none others, and when he has made a deed for any portion thereof to a person it will be presumed, in the absence of anything to the contrary, that he has made the deed to the proper person, and a person who has no interest in the land will not be allowed to question his acts. Sherry v. Sampson, 11 Kan. 611. An “occupant,” within the meaning of the town-site law of Congress, is one who is a settler or resident of the town, and in the bona fide, actual possession of the lot at the time the entry is made. One who has never been in the actual possession of a lot cannot be said to be an “occupant” thereof. Hussey v. Smith, 1 Utah, 129; Pratt v. Young, 1 Utah, 347. The occupancy referred to must be actual, and cannot be begun by agency, no one being allowed to take up lots by his agent. The occupancy may be for residence, for business, or for use, but the residence, business, or use must be by the claimant. A party having a bona fide occupancy can afterwards lease the ground and still retain his right thereto, and he may sell his claim, except that no contract, either for the sale or lease, which conflicts with the requirements that the title shall be made to an inhabitant who is an occupant and has an interest, will be recognized in deciding to whom the government title shall go; and a party purchasing an interest in such property can have government title to the extent of such interest, provided he becomes an occupant, (Cain v. Young, 1 Utah, 361,) thus showing no one is entitled to or can receive government title to a town lot unless he is in the actual, bona fide possession and occupancy of the lot. Neither this plaintiff nor his grantors and predecessors were, at the time of the entry by the probate judge, in the occupancy of the premises, or ever have been since the time of the execution of the mortgage. The mortgagor, at the time of the execution of the mortgage, was not an occupant of the premises, and he had no title, as the title was in the government until the issuance of the patent to the probate judge, under the town-site act. True, the evidence shows that Tillman entered upon the [128] premises as tenant of the mortgagor. He paid no rent, however, and when he asked his landlord to make repairs, he refused, saying he had nothing further to do with the premises. Tillman then claimed the premises adverse to all the world, and continued to occupy the same under such adverse claim until the probate judge conveyed to him. The mortgagor executed a quitclaim deed to him about that time, but he did not enter under it, or claim title through it. Adams v. Binkley. 4 Colo. 247; Lechler v. Chapin, 12 Nev. 65; Leech v. Rauch, 3 Minn. 451, (Gil. 332); Carson v. Smith, 12 Minn. 560, (Gil. 458); In re Selby, 6 Mich. 213; Town Co. v. Maris, 11 Kan. 148; Sherry v. Sampson, 11 Kan. 611; Cook v. Rice, 2 Colo. 135; In re Selby, 6 Mich. 193; Cofield v. McClelland, 16 Wall. 331. He who is in possession of and claiming to own land does not admit title in another because he buys the other’s claim of title, solely to quiet his own title and to avoid litigation. Such purchaser is not estopped by such purchase from denying the validity of the claim thus purchased. Cannon v. Stockman, 36 Cal. 535, 95 Am. Dec. 205; Leffingwell v. Warner, 2 Black, 605; Jackson v. Oltz, 8 Wend. 440; Jackson v. Dieffendorf, 3 Johns. 269; Jackson v. Rightmyre, 16 Johns. 327; Bradstreet v. Huntington, 5 Pet. 438; Alexander v. Pendleton, 8 Cranch, 462. The evidence shows that Mund was the only one of the persons through whom plaintiffs deraign title, who ever obtained any right by occupancy of these premises, and his right was extinguished long before the mortgage, by his failure to remain in possession or occupancy. The title of defendant in the premises should be confirmed. The judgment is affirmed. Wright, C. J., and Porter, J., concur.