,
·
. FEDll:RALREPl:lR'tER.vol. 52. :.' ,
';!,i
:; J.c.,' 1
of Appea18;'
,(Jircuie.
No. ISO.
."'.
2. SAlIfE.
The,fact thht a patent to lands. grante'd to a raUroadcpmpany by the act of July 'I, is 'fold' because pre-emption rights had· attached thereto. before not enable ,a;remote gJ:.antee to ,thl! :detllHte location of the road, hislm/p,ed,iate granto,J: for.a of warranty, grantee stIll retams posse$'$ion, ana has pendmg In' the land depart. Dient'an appHcation, a patent as' a bona fide' purchaser, under the act of MII-tc.h.·8, ,8, (24· 8. t. P.. 1$56,)Whichgives ..ce to such pUl.'chasers in case t,hll,Q{fginal pre:eniptioner' does not perfect bis entry within the time tlxed lJythe sectetary of the interior, 8S authorized by the ·act.' ,.,
LANDst;-.RAILROAD GRANTS - InALID P A,'l'EJ:'fTS - BRE,AOH OF WARRAN'!:Y., ... '.:. .' . . .... .... . .
.. , .... ".
"
ac.t,Qf 1887, that nothing CQDtfl,ine4therein "shall pre· vent purcllaser of errQ,neQusly withdrawn, or patented, as aforesaid, from reco'tliring the purchase money therefor from the grantee company," doeS' not add". to or vary the MgMs of the J)arties at common law, but waS intend,d; $0 preserve rights as they had t1lereunder.
the Eastem :District of Missouri. " .' '. . . . . ." " . . . . . ." Actioq .by Gree,ley to .recover for alleged breaqh of qOvenants ,warranty in a deed,. Demurrer. to cOIlllp1,aiut llopd ,judgmellt fQr defendant. , Plaintiff brings'errOl.Affirmed. ' . . Statement by CALDWJj1LL. Circuit Judge: , T.hiSl1,C.ti'?Jl.,.;.wa.s b. in err.or ,tt.he in to recover. (lalV-ages for alleged breach of covenants of Warranty contamed lD a deed made 1>'1' the defendant in error to the plaintiff in error for certain lands. The complaint: alleges that, tbe Union Pacific Railway Company. conveyed the land ,in dispute to the defepdant, Greeley, and, that Grellley conveyed the, lIame to the plain'tiff,l>ut that tne only title ever possessed by theraihvay company was Railway derived from a patent issued by the government to the Kansas Company, :un(ler the pro"isions of tlle act of congress. approved July I, 1862,. donating loo.ds to aid in theco,nstruction ofa railroad from the Missouri river to the Pacitlcocean, and tbllot .uch patentw!is void because 8 pre-emption claim had attachlld tollhelandinqueiltionbeforethe railway companY had definitely located The QQurt below sustained, a demurrer to the complaint, and its line .of rendered for the defenda,nt, and the plaintiff therElU{lon sued out thIs writ of error. .. . ,
John;L'Murtay and ii. Foster, for plaintiff in error. A. L. Willidms. for defendant in error. . .' .. ,' Before CALDWELL andS:.\:NJ'lbRN. Circuit J udges, and SHlilAs,' District Judge. CUDWELL, Circuit Judge, (after stating the facts.) Tn the case of Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Pup. Ct. Rep. 506, the supreme court decided that under the act of July 1. 1862, and the acts amendatory thereof. granting lands to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean, (12
BURR II, SREELEY.
927
atSt. p. 489,} ht.nds to which a pre-emption or, before the line of the trqa.d. waS'1efinitely fixed, by tached at filing a, map,,9fit$, with the Qommissioner of the general land offi.ce at Washington, from, the operation of the grant, {a,ilura,of the pre-emptor or homesteader to make the reciand uisiteproof and perfect his claim, or its actual abandonment, did not the railroad cOJ:llpany or become, a part oUhe cause the Jandto grant; but suc,hcase .it.remained a part of 'the public domain. Befor.e ,this deei,sion w8$,pronounced, the government had is,suedpatents or cElrtificates to th13 railway company for landJI. which were not within the grllnt, becaUse pre-emption and homestead rights had attached thereto. before the compaJ;ly filed the map of the definite location of its road in .the, general land, office. In some instances' the company had , . sold and conveyed such'llilnds. 'After the de,cision in 'the Dunmeyer Case, it ,was that, as to all lands to which the right of pre-emption or homestead had' attached pri()r to the definite location of the line of railroad, the patents by the the railwllY company wer,e void. Railway. 00. v. Dunmeyer, BUpraj Smelting Co.v. Kemp, 104 U·.S. 646, 647; Steel v. Refining Co., 106 U. S.. , 4,52,453, 1 Sup. Ct. ):tep. 389; Wilcox v. Jack13 Pet. 498; Best v. Polk, 18 Wall. 112; Dooktn v. Carr, 125 U. S. 618, 8 S1,lp; Ct. Rep. 1228. It was equally plain that the purchasers from the railroad companv of such lands acquired no title·. To correct the mistake, of the land department in patenting lands to the railway company pot within its. grant, and to relieve, as faras practicable, all froOl loss or injury by reason of the mistake, and to place ::til parties. l\S fllr as it could be done, in the, same situation they would have been If the mistake had not occurred, congress passed the act of March 3, 1887, (24 St. c. 376, p. 556.) The third section of that aot provides in substance that, the homestead or pre-emption entry of any settler has been erroneously canceled, such settler, upon application, shall be reinstated in all his rights, and allowed to perfect his entry; but if such settler does not renew his application within the time fixed by the secretary of the interior, then such unclaimed land shall be disposed of under the public land laws, with priority of right to bonafide purchasers thereof, if any, and, if there be no such purchasers, then to any bona residing thereon. , The fourth section of the act provides, in effect" that' Plltents shall be issued to purchasers in good faith from the l'l;lilway cOIl)pany of lands erroneously patented to the company, upon such purchaf!\er making proof of the fact of such purchllse at the proper relate land offiqe"and that the patents issued to such purchasers back to thed;ate of the original certification or patenting, and that the company shall pay the United States for such lands. " The. in this case alleges in, substance that the lana depatented to the company because prescribed therein was emption claims had attached thereto prior to the definite location of the line of the roap; that the .land belongs to the United States; and that the deedfr0 the company to Greeley and from Greeley to the plllintift covenants in thE: deed from Greeley to the
rll
!tis app#ertt 'It6fu the avermetttB ,of the oompla:int,and is a fact in the case', pl/liotiff'isin the act'nal possessiotl Of the'land, anil that he' has' applied'. {Of a.ipatent to thesarpe under the i act of congress. Th'eprairitiff has, in. fact, been the. possession of the premises, 'or renounced' his. Claim fo the ':and'aa a bonafide purchaser underthe act but, 6ri t4e coniiw'y, he is in the actual possession of the land, claiming"the' rights If fide ptirchaser under that act. It is not alle'ged that the. origorany other person is in an attitude aBUto ,the 'lan,d, or that the plaintiff'S application tose(JUre a patent'to the land, as, a bona fide purchaser. under of'congress, has been :rejected or islikely to fail .. The pla:intitrs contention is that becan' retain the actual possession of the premises, arid apply for and receive a patent fo.r thelandas a bona Me purchasertherebf under the act drcongress, 'wjthotlt'any cost to himself, and that while retainingthe:possess!'on or the land, andsettiog up his claims as a bonafide of tlie. that act, he can recO\'er of the grantor, on the ,latter's covenants 9f the full sum .of the purchase money grantor,. with'inWrest. .The argument is that. the act of cona pt'iyilege or benefit on the bO'f/,a fide purgres8wasdesigned to chasers, for their owri.'merit that itl3provisions cannot in any degt-ge,.or ill any aspect Of the case, to the benefit or of the .its sued upon th,eir covenants of.",arranty It'lse1mmed that such bona fide purchasers can cost to avail themselves of the bene.fit of the act either lVith or themselves, and at the Mme'time recover from their grantors on their of warratity the fl;lll sum of the purchlj.se Stated. in different language, the plaintifl"s contentioq ,is that his right of action for breach of while retaining the actual possession. of the land,and claiming andreceivirig the benefits of a bona fide' ()haser' un,der the acts of congress, are. precisely wbat. they would be if he had abandoned the. possession of the. premises and nceq all c1aim,.t6'the land".or, if the appeared within the bme all9Wed hIm by the secretary 'oithe mtenor, and .set up and established bis claim andrecei'led a pateritfor tl)e land. We cannot agree to this construction of the,aet. The plaintiff cannot play fast and loose. He cannot claim the benefit of the aCt. for one. 'pllrpose,and repudiate it for another. , If he' el:&Cts to accept the benefits of the act as a bona fide the company or its grantee,and gets a patent to the land becauseh'e sustains 'that telation, without cost to himself, he has not not perceived what substantial ground of acbeen damnified, and tion he would have his grantor.. But for the, deed of his grantor"he woul,dnQt have stood in the relation of a bona. fide purchaser, and' could ntif have availed himself of the benefits of the act of congre'ss. Olaiming and a6cepting, under tbe act, the rights of a bona fide purchaseriq\"irtue of his grantor's deed', he. at the same time claims the against his warrantoI;, . the same as though he had right to. finally lost' his'title and possession. He cllnMt do The complaint showstbat he bas preferred his claim to the land as a bona fick
of
I
V.GREELEY.,
929
purchaser, and that he retains the actual possession of the land. Upon lhese facts he is in no position to' maintain an action for breach of warranty. Until his application for the benefits of the act is determined, it cannot be known what,ifany, damage he has sustained, by the breach of the covenants of warranty in his grantor's deed. We do not rest our decision upOn the ground that proof that the outstanding title is in the government is not, in any case, sufficient to show an eviction. . We assume it to be true, as contended by the plaintiff in error, tha.t where the outstanding title is shown, to be in the government, that is, in general, sufficient proof of eviction. Railway Co. v. Dunmeyfff, 19 Kan. 543; Glenn v. Thi8tle, 23 Miss. 52; Brown v. Allen, (Sup.) 10'N. Y: Supp. 714j McGary v. Hastings, 39 CaL360; Larnbffft v. Estes, 99 Mo. 604, 13 S. W. Rep. 2.84. But this rule, does not aid the plaintiff in errorin this case, because he is, in fact, rightfully in possession of the land, claiming the right to a patent as a bona (ide purchaser under the act of congress, and presumably, the averments oLthe complaint, entitled to the rights of such a purchaser. Until hrs claim as .a bona fide purchaser has been determined, there is under the act of congress governing this case no constrU.1tive eviction which settles the rights and liabilities of the partie&. The plaintiff relies, and probably grounded his action, upon the pro\l'iso in the fourth section of the act of congress, which declares "that nothing in this act shall prevent any purchaser of lands erroneously withdrawn, certified, or patented as aforesaid, from recovering the purchase money therefor from the grantee company,less the amount paid to the United States by such company as by this act required." This proviso does not add to or vary the legal rights or obligations ·of the parties as they existed at common law. ,Its purpose was to preserve those rights, whatever they might be, and not to confer any new right. It clearly does not contemplate that one who, by virtue of hig deed and the possession acquired thereunder, is entitled to claim and does claim the rights ofa bona fide purchaser,. and who receives a patent from the government for his land, which is paid for by the railway company, may, after having his title thus perfected, without cost to himself, recover back the purchase money paid by him to the railway company or its grantee for the land. Nor can such a purchaser, while retaining the actual possession of the land, and claiming, under his deed, the rights secured to a bona fide purchaser by the act of congress, maintain an action for the purchase money upon the ground that he had been constructively evicted by the United States, and has lost his land. He is not on the land as a trespasser. There has been no eviction in fact or in law. He is in possession with the consent of the government, with equities under the act of congress which he is asserting, and which may ripen into a legal title, and as long as that possession continues, and plaintiff's claim is being asserted under the act of congress, an action for a breach of warranties forsubsmntial damages is premature, and it is substantial and not merely nominal damages which the is seeking to recover. The judgment of the circuit court is affirmed. v.52F.no.1l-59
930: :1
,UNiTED: ,STATES
tl.,
VAN DUZEE.
t rj i" 'j
No.1lS7.
1:.: ;OLil:1lX8 ,OF CdUlllt-+Ftill.mlt'ILING
DJ8CHAllGij:S, OF, ,WJ'l'IQl:SSES. " ;1'l1e .. ,I!:re to, g!ven by the atto'rney.to wI,tliesses for the,government, SInce Rev. St. U.S. § 877, prov'ides:tblit'such,witnesses :shall nQttlepart without leave of the court or the djatrlct and"it ill the ,practice to give them in drawing ,their pay marshal. 48 Fed.
2,
" " " ' '. Although there Is no law expreslilyrequiring the clerks oftha federal OOllrtll to ,take ,tile United Btatell collector, for fines paid by peroithe laws, yet, reo celpt's arl! 'f(WtIrll proper setthng Of the accounts of both clerks and collectors, 'thl!JY are" papers. ll, within theimeaning ,of .Rev. St. U. S.§'828, cJ. for filing or other paper. u, Aoob'uN-Ts. ,.' ' , Under'the rllle'of'cbutt requiringtb'e 'dlstriot' attorney to examine the make a written report thereon to the cpJ1rt.,suc.4 report"though not required by statute. becomes a part of the of th'e court, and the clerk is entitled to a fee for filing the same. affirmed. SAME-CERTIFlCATm;qF!,ALLOWANCE OF, A.COOUN'l'I!. ,
8.
1I.
. ,Act ,Gong. 22; ,187i>,.requirell, the accounts I,tHd vouchers of the marshal, clerk. and district aftor;hey tp be mal:le out in dupiIcate. the original to be forwarded to Washington', an"d t,hedUP,l,icate to be l'e,tained, by the clerk;, the papers forw,arded by a certified C9PY of the order of allowance. I[eld,thl!-t ,the latter paper part of tije youchers required to be . made in hence the clerk is not entitled to II: fee for duplicates thereof. 48 Fed. Rep. 643, affirlfied. " ," 5; S.urE,,","ENTRIEB OF 'SUJ3]\{!SSION AND Al'PBOVAL of,AccOUNTS. Under Act 001,lg. F.eb. ll2. 1875. requiring the, ()fficial accounts to be presented to the court in the presence of the district attorney or his assistant, It is necessary that an 'entry should be made, showing such submission; and the .,clerk.is entitled tOlL fee .for maktngthe same, as well as for entering the sub· . ,: disI1P;prb:val. Fed. ReP. 643, affirmed. , SA]\{E
4.
'The clerk is 'entltledtb compensatioi1'for services 'rendered in procuring the names of persons to serve as jurors, aod in drawing the juries for the terms of cpurt in Goodrich v., U. S., 42 Fed. ;Rep. 892, 48 Fed. Rep. 643. affirlI\ed. '
DRAWING,
SA]\{E-DUPLICATE' VOUCHERS' 01l' ACCOUNTS.
The clerk is entitled to fees for filing the and duplicates accompanying the aecOllntS9phe lI\,arshl!-l, since, by the iostructiolls of the depart· ment of jus1ice, he sending foi-ward the originals, to cer· tify that duplicates thereof are on' 1ilein his office. 48 Fed. Ret>; 648, affirmed: ' ":
Ik,SA]\{E-COPY OF BAlli :aj:>:!j'D.", .· f
_,,', :. St',l1. § ,l,l,ut.hC?,rlze,1I the Qn l j1b.ail bond their ·prmcipal. and to delrver blmto the marshal before a'Judge or commlttmg of.'fleer, and 'requires 'tW' ,latter, on request of the SUreties, to enter their exon· erRtlonul1on tile or,a certified copy thereof. HeU. that the clerk is not entitled to a fee from the government for making a certified copy for this purpose. BS'lhe ,Bllrtlti'es themselves should pay him for the same. 4B Fed. Rep. 643, affirmed.: , "
s.
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