Bronson v. Kukuk

DILLON, Circuit Judge. The plaintiff located a land warrant on the land in contro--versy, in 1853, but when in 1862 the warrant reached the pension office in due course, it was pronounced to have been issued on false and forged papers, and it was in consequence cancelled on the 9th day of May of that year, and the plaintiff given time to substitute another warrant, which he did in the latter part of 1862 and received a patent for the land dated June 1, 1803. Meanwhile, the state of Iowa assessed this land for taxation for the year 1861, and sold it in 1802 for the delinquent taxes of the preceding year. If the land was subject to taxation for 1861, the title is in the defendant; otherwise it is in the plaintiff. Until the patent issued the legal title remained in the United States, yet if, “the right to a patent is complete, and the equitable title is fully vested in a party without anything more to be paid, or any act to be done going to the foundation of his right,” the land may be taxed, though no patent therefor has yet emanated. Kansas Pac. Ry. Co. v. Prescott, 16 Wall. [83 U. S.] 603, 608. Assuming that the first warrant was procured from the government upon false and fraudulent papers, the location of such a warrant, if made by the warrantee, would not give any equity to the land as against the government. This is clear. And since [223] land warrants are not commercial or negotiable instruments, it is equally clear upon principle and authority (Mechanics’ Bank v. New York & N. H. R. Co., 13 N. Y. 599, 623; Wilcox v. Howell, 44 N. Y. 398), in the absence of a controlling statute, that the as-signee of a warrant has, as against the government, no higher equities than the war-rantee. Not only is there no statute placing the assignee upon better ground than the warrantee, but the act of congress making land warrants assignable only does so to the extent of “vesting the assignee with all the rights of the original owner of the warrant.’.’ Act of March 22, 18.52; 10 Stat 3. The first warrant was decided by the proper officers of the government to have been fraudulently obtained, and the documentary evidence shows that this decision was justified by the facts, and it was acquiesced in by the plaintiff. If these views are correct the result is that the location of the first warrant did not give a complete equity to the land, and if nothing more had been done the government would have been equitably, as it was legally, the owner of the land, and hence the land was not subject, while this condtion of things remained, to taxation. This condition did remain until December 26, 1862, when a valid warrant was furnished by the plaintiff and substituted for the other, and it was upon this warrant that the patent was issued. These views are inconsistent with the doctrine contended for by the defendant, and which has the sanction of the opinion of Mr. Attorney General Cushing, that if a land warrant has been fraudulently procured from the government and has passed into the hands of an assignee for value and without notice of the fraud, the government is estopped to question its validity. 7 Op. Attys. Gen. 657. Mr. Wirt, as attorney general, had given a contrary opinion, distinguishing, as Mr. Cushing failed to do, between commercial and negotiable instruments which are governed by a peculiar law, and those which, like land warrants, are not of this character. Assuming that the government is open to estoppel the same as individuals, the doctrine fqr which the defendant contends is one which cannot be maintained on legal principles. It applies only to commercial paper. If the maker of an instrument, although not of a commercial character, makes representations aliunde the instrument on which those to whom the representations are made act, the maker is estopped to deny the truth thereof, but the mere issue of such an instrument cannot alone operate to estop the maker from showing, into whosoever hands it may come, that its issue was procured by fraud. This subject is so fully examined, and so satisfactorily discussed in the New York cases above cited, that it is not necessary to do more than to refer to them. Another position taken by the defendant’s counsel is that as the patent recites and the evidence shows that the second warrant was substituted for the first, this substitution has the effect to make the plaintiff’s title relate back to the entry of 1853 under the first warrant. There is no statute giving the plaintiff the right to make such a substitution, or declaring the effect of it. Natural justice, indeed, would dictate that he should have an opportunity preferably to others to pay for the land, and this was properly given to him, ex gratia, ndt of legal right, but as against the government, he cannot be regarded as having purchased and paid for the land, until he located a valid warrant upon it, and until payment for the land had been made, it was not taxable. It is insisted, however, for the defendant, that although it be true that as against the government the sale of the land for taxes was not valid, yet the plaintiff is estopped, as against the defendant, from asserting such invalidity. But why? The plaintiff has had no transaction with the tax title purchaser, or with the defendant claiming under the tax title purchaser. He has made no representations to either of them, and they have no covenant of his, nor is there any grant or warranty by him so that his title acquired by the location of the second warrant and the patent will enure to them. A purchaser at tax sale buys upon his own suggestion and at his own risk as to the title he obtains, arid a subsequently acquired title does not enure to his benefit. There must be a judgment for the plaintiff. Judgment for plaintiff.