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COFIELD V. MCCLELLAND, 83 U. S. 331 (1872)

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U.S. Supreme Court

Cofield v. McClelland, 83 U.S. 16 Wall. 331 331 (1872)

Cofield v. McClelland

83 U.S. (16 Wall.) 331


1. A bill to compel a conveyance from a person to whom the Probate Judge of Arapahoe County, Colorado Territory (in which county is situated Denver), had conveyed a lot in pursuance of the Acts of Congress of May 23, 1844, and May 28, 1864, for the relief of the City of Denver, and of the Act of Colorado Territory of March 11, 1864, dismissed:

1st. Because the defendant was in possession of the lot in question at the time of the passage of the act for the relief of the City of Denver, and at the time of the entry of the lands made by the probate judge, by means of which he became and was the party by law entitled to the deed from the probate judge, and,

2d. Because the appellant, by omitting to sign and deliver the statement required by section four of the territorial statute, became barred of the right to the lands both in law and equity.

2. Notices required by statute presumed to have been given by a probate judge, he having made a conveyance of land which could have been properly made only after such notices given.

The City of Denver, which is in the County of Arapahoe, Colorado Territory, was originally laid out by a company or association of persons on the public domain of the United States before the same had been surveyed and became subject to entry. And the company was aided by the privileges of preemption, at the minimum price, being secured to settlers and occupants of lots by the general enactment of May 23, 1844, [Footnote 1] "for the relief of the citizens of the towns upon the lands of the United States under certain circumstances," and by a special enactment "for the relief of the citizens of Denver" of the 28th of May, 1864, [Footnote 2] whereby the probate judge of the county was constituted a trustee to enter the land selected for the site of the town when the same became subject to entry, and to pass the legal title to the settlers and occupants of lots, under rules and regulations prescribed by the legislative authority of the Territory of Colorado.

These acts being in force, the Probate Judge of Arapahoe chanroblesvirtualawlibrary

Page 83 U. S. 332

County having, on the 6th of May, 1865, entered the town site under the acts referred to, on the 10th of May, 1865, and in accordance with the directions of a Territorial Act of Colorado, of March 11, 1864, advertised for four weeks thereafter in a weekly newspaper published at Denver (though whether also by posting notices in three public places in the town, which a territorial act of Colorado required, did not appear, the judge himself being dead), the fact that he had made the said entry, and that all claimants of lots in the town should within ninety days present their claims to him.

Mrs. Louisa McClelland, then, as the evidence in the case went strongly to show, in occupation of lot No. 6, block 69, in Denver, and who had erected valuable improvements on it and was then paying taxes upon it -- all without apparent knowledge of any counterclaim -- accordingly presented her claim for the said lot, and there being no counterclaim made to it by anyone, the probate judge, on the 11th of August, 1865, conveyed the said lot to her. She being thus in possession, one Cofield, in April, 1869, filed a bill against her to compel a conveyance to him. The bill alleged an equitable title to the lot in the complainant by the occupation and possession; a prior settlement, to-wit, by a certain Preston, in 1859, a conveyance by Preston to one Hall, and after several intermediate conveyances, by which the lot came to one Bates, a conveyance by Bates to the complainant in 1869. [Footnote 3]

The court below having dismissed the bill, the complainant took this appeal.

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