Balsz v. Liebenow

SLOAN, J. Appellee brought suit in the district court, Maricopa County, against appellants, to recover the possession of the northeast quarter of section 12, in township 1 north, range 3 east, Gila and Salt River base and meridian. There was a jury trial, and verdict for appellee. From the judgment and order overruling their motion for a new trial, appellants have taken this appeal The facts, as they appear from the transcript, are substantially these: On the twenty-ninth day of August, 1881, one Vail made a timber-culture entry for the land in question. On February 2, 1885, Vail conveyed said land by quitclaim deed to Luz R. Balsz, one of the appellants, who, with her husband, David Balsz, ever since the date of said deed, until after the commencement of this suit, was in the possession and occupancy of the whole thereof. In September, 1886, appellee filed a contest in the local land office against Vail’s entry, and [231] on January 15, 1891, finally succeeded in having said entry canceled, and was thereupon notified by the land officers of his preference right to enter same, and did, on February 9, 1891, make a homestead filing upon the land, and receive the receiver’s duplicate receipt therefor. Appellee then brought his suit for the possession of the land. At the trial the court admitted the duplicate receipt of the receiver in evidence, over objection, as evidence of title and right of possession in appellee, and instructed the jury that it constituted sufficient title in appellee to entitle him to recover in the action. The action of the court in admitting the duplicate receiver’s receipt, and in instructing the jury, as above stated, are assigned as errors. Assuming that Liebenow had a right to make a valid homestead entry upon the land in question, notwithstanding the occupancy of Balsz, and that the doctrine of Atherton v. Fowler, 96 U. S. 513, does not apply, the question still remains, Does the mere filing made by Liebenow under the Homestead Act, as evidenced by the receiver’s duplicate receipt entitle him to maintain his action in ejectment? In many of the states and territories it has been provided by statute that certificates issued by registers of the land office, and receivers’ receipts issued after final proof, shall be held to be prima facie evidence of title sufficient to support ejectment. Such certificates evidence an equitable title in the holders, and show that, having fully complied with the requirements of the law, the holders are entitled to patents from the government. But inasmuch as the legal title to public land remains in the government, even after final proof, until patent issues, and as delays often occur whereby the legal title may not for years be vested in the holder of such an equitable title, in order to protect the latter in his possession, the legislatures in many states have extended the action of ejectment to embrace such titles. There is a clear distinction to be observed between certificates issued after final proof and receipts issued by receivers or registers of the local land office, showing mere filings upon public lands under the various land acts. The former, as we have said, evidence the equitable title, while the latter are not evidence of any title. As was held by the supreme court of California in Hemphill v. Davies, 38 Cal. 577, in regard to the register’s certificate [232] of the filing of a declaratory statement, such a certificate “is not a title.” “It is merely an implication—an offer—to purchase after the requisite proof of residence, qualification, etc., shall be made. When this is done, and payment is made, and the certificate of purchase is firmed, then the purchaser acquires what is recognized 'by fine laws of this state as title derived from the United States.” A statute of the state of California was in force at the time that this decree was rendered in Hemphill v. Davies, which provided that “the certificate of purchase or of location of any lands in this state, issued or made in pursuance of any of the laws of the United States, or of this state, shall be deemed prima facie evidence of the legal title in the plaintiff.” We have no statute which can be construed as giving the holder of such inchoate "and uncertain claim to land as a duplicate receiver’s receipt a right to dispossess one in the prior possession of land in a suit of this character. We have been cited to paragraph 3138 of the Revised Statutes as sustaining the contrary view. This paragraph provides that in the action of ejectment, under the plea of “Not guilty,” the defendant may “give in evidence any testimony tending to show that the plaintiff is not entitled to such possession, or that the title is in some other person, other than the government.” This statute goes no .further than to recognize that one may maintain his action of ejectment, provided he has a right to the possession, even though the legal title be in the United States. Possibly, it may give the right to the holder of an equitable title evidenced by the certificate of a register of the local land office, issued upon final proof. At any rate, it does require of the plaintiff that he show a right to the possession,, and falls very short of declaring that a mere naked filing' as evidenced by a duplicate receiver’s receipt, establishes that right. The land department has exclusive jurisdiction to determine all questions between conflicting claimants, at least until an equitable estate has vested in the entryman, and the courts cannot interfere by putting one claimant in possession and ousting another. If the United States cares to put an entryman in possession, it may undoubtedly do so by ejecting parties unlawfully in possession, but it does not confer upon the holder of a duplicate receiver’s receipt this right. Of course, an entryman in possession may bring a possessory action, if ousted, to be returned [233] to his possession. He may do this upon the well-settled principle in ejectment that one in possession of land under claim of right cannot be dispossessed by one having no greater right. We hold, therefore, that the court erred in its ruling in admitting the duplicate receiver’s receipt as evidence of title, and instructing the jury that it was sufficient' title upon which a recovery might be had. The cause is therefore reversed, and a new trial granted. Hawkins, J., concurs. Baker, C. J., did not take part in this case.