Murray v. Montana Lumber & Manufacturing Co.

MR. CHIEF JUSTICE BRANTLY, after stating the case, delivered the opinion of the Court. 1. The brief of appellants was filed while the rules of this Court promulgated in 1896 were still in force. Five errors are assigned therein. Three of these assignments are predicated upon rulings upon the admission and rejection of certain evidence. The first and second of them we cannot consider, for — 20 — the reason that they neither set out the substance of the evidence-upon which the rulings were made, as required by Rule V, Sec. 3, Subd. 2 (16 Mont. 595, 44 Pac. vii), nor refer to the pages and marginal numbers in that portion of the transcript containing the evidence, as required by the rules now in force (Rule X, Sec. 3, Subd. “b,” 22 Mont, xxxiv, 61 Pac. vii). The- third assignment, while not meeting the requirements of the old rule, so far complies with the ' present rule, by references to the transcript, as to enable us to examine the questions raised by it without additional labor. We shall, therefore, waive the defect, which would otherwise be fatal, and treat the brief as if filed under the rule now in force. The remaining two assignments are not referred to in the part of the brief devoted to- the argument. We therefore assume that counsel for appellants considered them without merit. 2. At the trial, plaintiffs rested the case upon the Murray patent, the conveyance from Murray to his co-plaintiff, and evidence of the rental value of the property during its occupation by defendant subsequent to the date of the patent. Thereupon defendant offered evidence of the other facts set forth in the statement. Objection was interposed to all of it on the ground that it was incompetent,» immaterial and irrelevant. When defendant rested, plaintiffs moved the court to strike it all from' the record on the same grounds as those stated in the objection. The specific objection urged was that there was an absence of other evidence showing that an adverse claim or suit had been instituted by Noyes and wife, or defendant, against Murray’s application for a patent; that at the time Murray entered the Railroad claim he had actual notice of the condition of the title to the Placer claim, and that the Home Investment & Realty Company took its interest with notice; and, therefore, that the facts shown by defendant tended in no way to establish a trust in plaintiffs in its favor. Error is assigned upon the action of the court in overruling the objection and motion. The objection to this evidence goes to its sufficiency, rather — 21 — than to any legal ground for its exclusion from consideration; for it is assumed tliat, if the evidence which plaintiffs asserted was wanting had been introduced by defendant, it would have been entitled to the relief sought in its counterclaim. And this is undoubtedly a correct assumption, for whenever one person wrongfully obtains title to land which in equity and good conscience belongs to another, whether it be done in good faith or not, he is properly chargeable as trustee for the benefit of such other person. The principle applies to proceedings by which patent is obtained from the United States, as well as to dealings between private individuals; and the courts have readily exercised their equitable powers to control and limit the operation of the patent as between adverse claimants whenever it has been made to appear that by a mistaken application of the law to the facts of the case by the officers of the land department the patent has been issued to the wrong person, or when the holder of the legal title under it has obtained it by a fraud upon the rights of one who is entitled to it. (Meyendorf v. Frohner, 3 Mont. p. 322; Hermocilla v. Hubbell, 89 Cal. 5, 26 Pac. 611; South End Mining Co. v. Tinney, 22 Nev. 27, 35 Pac. 89 ; Bernier v. Bernier, 147 U. S. 242, 13 Sup. Ct. 244, 37 L. Ed. 152 ; Lindsey v. Hawes, 2 Black 554, 17 L. Ed. 265; Cornelius v. Kessel, 128 U. S. 456, 9 Sup. Ct. 122, 32 L. Ed. 482; and casea cited in Power v. Sla, 24 Mont. 243, 61 Pac. 468.) The party claiming to be the rightful owner must show, of course, that he stood in such a relation to the government at the time tire patent was issued that he was entitled to demand it; but, when this has been made to appear, the mere fact that the patent has been issued to another in no way impairs his right to be declared the owner. The evidence sought to be excluded by the objection was clearly admissible as tending to show that the defendant was entitled to the relief demanded. That it fell short (if sudi were the fact) of establishing all the facts necessary to justify the trial court in granting this relief is no reason why it should have been excluded in the first place, or stricken from the record — 22 — at the close of defendant’s case. From the point of view of plaintiffs, the proper method of attaining the end sought by the objection and motion, viz., the exclusion from consideration by the court and jury of the evidence introduced by the defendant, on the ground that it was insufficient because of its failure in the particular mentioned, — would have been, we think, to request the court to direct a verdict for the plaintiffs upon the main issue, and to submit to the jury the question of damages only. However this may be from any view, the rulings were correct. It was not necessary for the defendant to show that Noyes and wife, or defendant, had prosecuted successfully adverse proceedings against Murray’s application for patent. Noyes and wife had already gone through all the regular proceedings to obtain a patent, and had received a certificate of jourchase. This was evidence that they had complied with all the conditions prescribed by law, and that they had acquired a vested interest in tire land embraced in the Placer claim. The public faith was thus pledged to them, as well as their grantees, and thereafter the officers of the land department had no right to convey to any one else, so long as the certificate was outstanding. (Lindley on Mines, Sec. 771; Wirth v. Branson, 98 U. S. 118, 25 L. Ed. 86.) The lands covered by the certificate immediately upon its issuance became segregated from the mass of public lands, and were not subject to entry by any one else. The right to the patent thus became vested in Noyes and wife, and thereafter the title stood as if the patent had already issued. The mere delay in its issuance did not subject them, or their grantees, to additional burdens, or expose them to assaults of third parties. (Benson Mining & Smelting Go. v. Alta Mining and Smelting Co., 145 U. S. 428, 12 Sup. Ct. 877, 36 L. Ed. 762; Stark v. Starrs, 6 Wall. 402, 18 L. Ed. 925; also authorities last cited.) Neither their rights nor those of the grantees were affected by proceedings in the land department, in which it appears they took no part. Conceding, for the sake of argument, that, in the absence of — 23 — evidence showing that Murray had notice of the rights of Noyes and wife at the time his patent to the Bailroad lode claim was issued, his title to the portion embraced in the conflict would be good as against the claim of defendant, the rulings of the court below were correct. Under the facts, as shown by the evidence, it cannot be urged that he had no notice of the existence of defendant’s rights. The plaintiff Murray took part iu the proceedings had under the order of the commissioner of August 21, 1889; lie therefore had personal knowledge of Noyes’ title. Furthermore, the records of Silver Bow county showed that Noyes and wife had parted with their rights to defendant. He resorted to these records for the evidence upon which he relied to obtain his patent. The abstract obtained from these records and presented to the land department was intended to show that the Casey and Warren relinquishment of the Noyes title — without which he could not obtain a patent ■ — was authorized. Having relied upon what was disclosed by the records touching the condition of the Noyes title, he was bound by whatever they disclosed, and must be presumed to have had notice of their contents. Though he claims under the patent, he virtually occupies the position of <a junior grantee of the Noyes title, for the patent would not have issued but for the fact that the commissioner of the land department was led to believe that this title was properly reconveyed to the United,, States under the alleged relinquishment by Casey and Warren. Conceding, again, that the Home Investment & Kealty Company’s title is superior to that of the defendant, in the absence of actual notice of defendant’s equities at the time it took from Murray, it stands in no position ,to complain of the rulings in question. No question was raised here as to the sufficiency of the evidence, or a want of evidence, to sustain the findings, nor that the findings do not support the judgment. So far as. a consideration of this feature of the case is concerned, this plaintiff can obtain no relief. And, even though the evidence objected to should properly have been excluded or stricken out at the instance of this plaintiff, the ruling of the court below was never — 24 — tbeless correct. Tbe purpose of the objection and motion was to exclude it altogether from the consideration of the court and jury. To have done this would have been error, for, as we have seen, Murray had no right to complain and the exclusion of the evidence would have prejudiced defendant’s rights as against him. The objection and motion were too broad. Let the judgment and order appealed from be affirmed. Affirmed. Mr. Justice Milburn, not having heard the argument, takes no part in this decision.