Bisson v. Curry

Day, J. l. pateot : be questioned. I. The ten specific causes of demurrer assigned under the first head are stated very elaborately. It would occupy much space to set them forth sewatim, and mncn greater space to give to them a separate consideration. Most of them have received no attention in the argument. All the questions presented may be conveniently and satisfactorily discussed under the following general proposition: Do the facts stated entitle the plaintiff to the relief asked ? Briefly collated, the facts set forth in the petition are these: The defendant occupied and made valuable improvements upon the lands in dispute, with a view of pre-empting or homesteading them. He made due application at the proper land office for leave to file a pre-emption claim, and also a homestead claim thereon, and was refused permission to do so upon the ground that the lands were claimed by Hamilton county as swamp land. One Estes, with full knowledge of defendant’s possession, improvements and claim, eonfedez’ating with others for the purpose of depriving defendant of his rights, procured, from the officers of the land office at Fort Dodge, and from the commissioner of the general land office at Washington, a decision that the lands were subject to entry at government prices, and thereupon entered the same. That plaintiff purchased of Estes, with full knowledge of all defendant’s rights and equities. For the pui’poses of this suit the decision of the officers of the land office, and of the commissioner of the general land office, that the lands in question were subject to entry notwithstanding the claim of Hamilton county that they were swamp lands, will be presumed to be coiTect, as the claim of both parties is predicated upon the fact that the lands were so subject to entry. If, then, the officers of the land office rightly decided that the claim of Hamilton county was not valid, and would not prevent an entry of the lands, they wrongly refused to allow defendant, in consequence of such claim, to file his pre-emption or his home [78] stead claim. The defendant did all in his power to do, without the concurrence of the officers of the land office. He moved upon the land with his family, occupied and cultivated the same, and made valuable improvements thereon. He made a timely offer to file his pre-emption and his homestead claim, and was not allowed to do so, in consequence of a claim of Hamilton county which is subsequently declared to be unfounded. He was entitled to pre-empt or to homestead the lands in question. Is he deprived of all relief simply from the fact that Estes was allowed to enter the land and obtain a patent therefor ? Numerous decisions both in the State and Federal courts have decided this question in the negative, when the circumstances are such as to bring the case within any recognized head of equity jurisdiction, such as fraud or mistake. See Isaacs v. State, 3 Scam. 97; Bruner v. Manlove, id. 339 ; Smith v. Mosier, 5 Blatchf. 51; Doe v. Stephenson, 9 Ind. 144; Huntsucher v. Clark, 12 Mo. 333; Perry v. O'Hanlon, 11 id. 585; Brush v. Ware et al., 15 Peters, 93; Garland v. Wynn, 20 How. 6 ; Cunningham v. Ashley, 14 id. 377; Bernard v. Ashley, 18 id. 44; Lindsey v. Hawes, 2 Black, 554; Stark v. Stans, 6 Wall. 402; Header et al. v. Norton, 11 id. 443. This whole subject has recently received elaboi’ate and exhaustive consideration in the supreme court of the United States. See Johnson et al. v. Towsley, December term, 1871. In this case the contest arose out of rival claims to the right of pre-emption of eighty acres of land. The register and receiver, after hearing these claims, decided in favor of Towsley, and allowed him to enter the land, receive his money, and gave him a patent certificate. On appeal to the commissioners of the land office their action was affirmed, but on a further appeal to the secretary of the interior the action of those officers was reversed, and the patent issued to Johnson. Towsley brought an action in the proper State court of Nebraska, [79] to compel a conveyance to him" of the title held by Johnson, on the ground that in equity he was entitled to it. The Nebraska courts decreed as prayed. This decree the supreme court of the United States affirmed. In this case all of the leading questions presented by the demurrer are fully discussed and determined adversely to the appellee. The case differs from the one at bar only in one noticeable feature, to wit: Towsley had procured a duplicate receipt, and thus had some paper evidence of title, whereas Curry had none. In the case of Sampson v. Smiley, supreme court United States, December term, 1871, Smiley was in the same condition as Curry, having no certificate or other evidence of title. Tet the court held that this fact made no difference in his rights, and affirmed the decree of the supreme court of Nebraska, declaring Sampson a trustee of the title, for Smiley, and directing him to convey accordingly. This last case, in the principles involved, is on all fours with the present. In view of these authorities, as well as upon principles of natural justice and equity, we do not hesitate to hold that the facts alleged in defendant’s answer entitle him to the relief prayed. II. Some minor questions are argued by appellee, such as that the answer does not show that defendant is entitled to a pre-emption, in that it does not allege that he is not the owner of three hundred and twenty acres of land, nor that lie has never previously had the benefit of the pre-emption act. And that it does not show that he is entitled to a homestead in that it does not aver that he has never borne aims against the United States, nor that he had never before availed himself of the provisions of the homestead act. And that the cross-petition is defective in that it does not allege a tender, to plaintiff or his grantor, of the purchase-money paid by him. Without determining the necessity of any of the aver [80] ments, it is sufficient to say that none of these defects are suggested by the demurrer. The demurrer points out specific objections to the petition. While it is true that a general demurrer may be interposed to a petition in equity, yet if a party undertakes to specify grounds of demurrer, he will be confined to those designated. Allen v. Cerro Gordo County, 34 Iowa, 54. 3. receiver : appointment of. III. The receiver was appointed without notice to defendant, and without the allegation of any facts in the P^ion showing the necessity for such course, ]Eveii if the facts alleged in this petition were such as in any event to render the appointment of a receiver proper (a question upon which we now express no opinion), it is clear that the receiver should not have been appointed without notice to the defendant. French v. Gifford, 30 Iowa 148 (i. e. 160). Reversed.