Whitney v. Nelson

Cole, J. A number of the material questions arising in this case and discussed upon the argument, were considered and passed upon in Whitney et al. v. Gunderson, 31 Wis., 359 ; and we therefore do not deem it necessary to make any further reference to them than to say that subsequent examination and reflection have only confirmed us in the opinion there announced. Perhaps we should add that it seems to us entirely inadmissible to hold that the act of confirmation of April 28, 1828 (4 U. S. Stats, at Large, pp. 260-61) confirmed in Alexis Garda-pier the whole vacant strip between the claim of Jacques Porlier on the north and the claim of Louis Grignon on the south, in view of the reservation in the act itself of all lands occupied by the United States for military purposes, and more especially when we consider the report of the commissioners, which manifestly intended to limit Gardapier’s claim to three arpents on Fox River, and recommended for confirmation the claim of Pierre Grignon, which could only be satisfied out of a portion of that strip, providing any remained unappropriated after giving Gardapier his land, according to the specified limits. There is certainly nothing in the acts of the commissioners, nor in the legislation of congress, which warrants the conclusion that the claim of Gardapier was recognized as extending to the entire vacant strip, if it should be found that such strip in fact extended three arpents wide on Fox River; but quite the contrary inference must be made. So, also, it seems to us it would be equally incorrect and inadmissible, in view of what appears in this record, to permit [384] the defendant to show bj parol testimony that the land in controversy was not actually occupied by the government of the United States for military purposes. That it was reserved for the use of the government is a fact fully established by the evidence. Again, it was insisted that the entry of Pierre Grignon is void for uncertainty. The patent, however, describes the claim, and, for a more particular identification of its boundaries, refers to the official plat of survey of the same on file in the general land office, a copy of which plat is embraced in the patent. And it will be borne in mind that this survey was made under the act of June 18, 1860 (12 U. S. Stats, at Large, p. 857), which expressly authorized the commissioner of the general land office to cause the said tract of land to be surveyed in the same manner as other private claims to lands in Green Bay had been surveyed. It was assumed on the argument, by the counsel for the defendant, that this survey, which the commissioner of the general land office caused to be made, was wholly without authority of law. But this is a mistake. . A survey of the claim was. made in exact conformity to the act of congress ; and when such survey was made and approved, then the title to the specific tract of land granted, passed to the donee. There surely can be no difficulty in identifying the tract of land included in the patent, whatever might be said of the original claim made by Pierre Grignon before the commissioners. These remarks are all we deem it necessary to make — after what is said in Whitney v. Gunderson, supra — until we come to consider some points relied upon to defeat the title of the plaintiff Whitney. And first, it is insisted that she is estopped from claiming title to the premises, by the judgment in the circuit court of Brown county, at the suit of Mary G. Curtis against her, upon the foreclosure of a tax deed. That suit was commenced and judgment therein rendered in the summer of 1869, before the [385] patent was issued under which she now claims. And the question is, What effect can that judgment have upon the title which she subsequently acquired ? And we suppose that thé answer must be, that the judgment in that suit could only operate upon rights existing at the time of its rendition, and that it cannot possibly bar or prejudice any right or interest which had not then accrued. The law upon this subject is very clearly stated in one of the authorities cited on the brief of the counsel for-the defendant, as follows : “ Erom the rule that an adjudication affects no claims which the parties had no opportunity to litigate, it results -that no judgment or decree can prejudice rights which had not accrued to either of the parties at the time of its rendition. A decision that a right exists, or that a wrongful act has been committed, leaves the parties at liberty to show, at a future time, that since the decision was pronounced, the right has expired, or the wrong has been abated. Intervening events affecting the issue may be shown, to prevent a former judgment from being conclusive, even where the title has been tried in a writ of entry. * * * * Under no circumstances will a judgment or decree take effect upon rights not then existing. If a decree be entered quieting title, and enjoining the defendant from making any further contest against the plaintiff’s title, this general language will be confined to rights in issue, and will not prevent the plaintiff from asserting a subsequently acquired title.” Ereeman on Judgments, § 329. See Bigelow on Estoppel, p. 121; McKissick v. McKissick, 6 Humph., 71; McCurry v. Robinson, 23 Georgia, 321; Reed et al. v. Calderwood, 32 Cal., 109; Mahoney v. Van Winkle, 33 id., 448. Now it would .seem to be very plain, upon principle, that-the rights which the plaintiff Emmeline S. Whitney now claims under the patent issued in June, 1870, could not be barred or in any way affected by a proceeding to. foreclose a tax deed in' 1869. Besides, we have held that until a survey was made under the direction of the commissioner of the land [386] office, which should be approved by the executive department of the government, as contemplated by the law of congress of 1860, the land confirmed to Pierre Grignon was not separated from the lands owned by others, so that a title to any distinct tract would pass under that act. Whitney v. Gunderson, supra. And from the nature of the case it is apparent that the rights which Emmeline S. Whitney now asserts could not have been litigated and determined in the suit to foreclose the tax title, nor could they have been divested by the judgment rendered therein. Again, as it seems to us, there is much less reason for holding that the record either in the partition suit or in the suit for a specific performance of a contract could operate as an estop-pel. Upon what principle the proceedings in either of those suits could possibly affect an after-acquired title, it is difficult to understand. Nor can we see that the record in the case for a specific performance was rendered competent testimony by the offer which accompanied it, in which it was proposed to show by Elisha Morrow, that before buying he investigated the state of the title to the vacant strip, and the conduct of Whitney in the action of Arndt against him, and bought relying upon these facts, and believing that the north half was of the same size as the south half sold to Arndt by Whitney, and occupied by the former since 1852. It would be an unwarrantable extension of the doctrine of estoppel to hold that the plaintiff Whitney is concluded by any of these matters from now asserting her title under the patent. These observations dispose of all the material questions arising in the case, not considered and decided in Whitney v. Gunderson. It follows that the judgment of the circuit court must be affirmed. By the Court. — Judgment affirmed.