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HUSSMAN V. DURHAM, 165 U. S. 144 (1897)

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U.S. Supreme Court

Hussman v. Durham, 165 U.S. 144 (1897)

Hussman v. Durham

No. 66

Argued and submitted January 5, 1897

Decided January 18, 1891

165 U.S. 144

Syllabus

In 1858, C. located a bounty land warrant issued to L. under the Act of March 3, 1855, c. 207, taking a certificate of location, which was recorded in the office of the recorder in the county in which the land was situated. No patent was issued. In 1864, under authority of the Act of June 23, 1860, c. 203, but without notice to C., the Secretary of the Interior cancelled that warrant. It was admitted that the assignment upon it, purporting to be that of L., was a forgery. On the records of the Land Department up to 1886, it appeared that a full and equitable title to the land had passed to C., and in that year, D., having obtained conveyances from C., applied to the Land Department for leave to purchase on payment of the regular price, and his application was granted. Meanwhile the land had been sold for nonpayment of state taxes, and the tax title had passed into H. D. commenced suit against H. to quiet title, and the Supreme Court of Iowa sustained the decree of the trial court in his favor. Held: chanroblesvirtualawlibrary

Page 165 U. S. 145

(1) That as the supreme court of the state held that the equitable title apparently conveyed by the proceedings in the United States Land Office in 1858 was of no effect, and the tax titles based thereon of no validity, it was apparent that a right claimed under the authority of the United States was denied, and therefore this Court had jurisdiction.

(2) That, though a formal certificate of location was issued in 1858, there was then in fact no payment for the land, and the government received nothing until 1888; that during these intervening years, whatever might have appeared upon the face of the record the legal and the equitable title both remained in the government; that the land was therefore not subject to state taxation; that tax sales and tax deeds issued during that time were void; that the defendant took nothing by such deeds; that no estoppel can be invoked against the plaintiff; that his title dates from the time of payment in 1888; that the defendant does not hold under him, and has no tax title arising subsequently thereto, and that there was no error in the decision of the supreme court of the state.

This case comes up on error to the Supreme Court of the State of Iowa. The facts are these: on May 19, 1858, Robert Craig located bounty land warrant No. 27,911, issued to William Long under the Act of Congress of March 3, 1855, 10 Stat. 701, upon the land in controversy, and obtained from the proper land officer a certificate of location. This certificate was recorded in the office of the Recorder of Carroll County, the county in which the land is situated. No patent was issued thereon. On February 1, 1864, the Secretary of the Interior cancelled the land warrant under authority of an Act of Congress of date June 23, 1860, 12 Stat. 90. This act provided that whenever it should appear that any land warrant was lost or destroyed, whether the same had been sold or assigned by the warrantee or not, the Secretary of the Interior should cause a new warrant to be issued, which new warrant should have all the force and effect of the original, and upon such action the original warrant was to be deemed and held to be null and void, and any assignment thereof fraudulent; and, further, that

"no patent shall ever issue for any land located therewith unless such presumption of fraud in the assignment be removed by due proof that the same was executed by the warrantee in good faith and for a valuable consideration."

The second section authorized the Secretary chanroblesvirtualawlibrary

Page 165 U. S. 146

to prescribe such rules and regulations as might be appropriate for carrying the act into effect. It was alleged in the petition filed in this case that, the assignment on the warrant purporting to be that of Long, the warrantee, was a forgery, and this allegation was admitted by the defendant. The action of the Secretary was taken without, so far as appears, any notice to Robert Craig. Nothing was done, either in the local land office or in the Land Department at Washington, to formally cancel the certificate of location. Up to the year 1886, the records of the Land Department showed on their face a full equitable title passing to Robert Craig by virtue of his certificate of location, and payment therefor in a land warrant. During these years, the land was subjected to taxation by the officers of Carroll County, Iowa, and was sold for nonpayment of taxes, and the titles under such tax sales passed to Bernhard Hussman, defendant below.

In 1886, William H. Durham, plaintiff below, having obtained conveyances from Craig, applied to the Land Department for leave to purchase the land upon payment of the regular price. This application was granted under authority of Rule 41 of the Department of the Interior, published on July 20, 1875, which reads as follows:

"When a valid entry is withheld from patent on account of the objectionable character of the warrant located thereon, the parties in interest may procure the issuance of a patent by filing in the office for the district in which the land is situated an acceptable substitute for the said warrant. The substitution must be made in the name of the original locator, and may consist of a warrant, cash or any kind of scrip legally applicable to the class of lands embraced in the entry."

The money, $150, was paid by Durham in 1888, and a patent issued, of date October 3, 1889, to Robert Craig, his heirs and assigns. It recited a payment by "F. M. Hunter, trustee for Robert Craig," and was delivered to said trustee, to be held until the rights of these parties could be judicially determined. Thereupon Durham commenced this suit in the District Court of Carroll County, Iowa, to quiet his title as against the defendant, holding the tax titles. The district court entered chanroblesvirtualawlibrary

Page 165 U. S. 147

a decree in his favor, which was affirmed by the supreme court. 88 Ia. 29.





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