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I. DDD8f-It:\I:I10nMAlfION-EQt1lllY.-.JURiSDlOTIONo' .:, . " ljlquity ll.. I' lI11ft to lIet a deed fP,ven in pursuance thet:eof \jee.use Qf mutual mistake, or frauddntb,ep'artof the grantor , in'lncluding therein land ltolwhieh behad,no,title, though there may be a,eoncur, "rjWt "1"veJ!lantsin deed. l4DpiOND,J., dissenting. t. BoN», lrO,B'TITLE-PABOL :mVIDENCE TO VABT.' , , , : , ' ' .' ." , 'l'eatitnofty to ahow'that tbe cdntraet 'expreilsedia a:tit,le.;boli.d waaaltered .; .. ' ,.,.; \ ' , -L;' ",1,,; II i,
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No lormer opini9n WfI,f!' filea., T. J{., .Riddick,) !for,pJ.s.batiffs· ·"11,,,!Jj· MQoromaft" fordefenda.nta., r" "', review· of'the original the com: adm'irlisffator of Ji.' iJ'. the fehdaii't GollSett,in: JllIitlarY,1884, to reform a 'cor\\'eyanee !made by said COssettr!'W·tbe, heirs :of. 8tLid PUllill:ttl aft::the' timEl'df'lmd Bliid rreettietiiim't,:becaUBH'ljaidcbnvEiyanoe 'inc1uiled; c'ertaio';lands which warb lleithersold 'by 'the veiidor norpitrchased 'by the intestate Of the moneys 'lnjproperly paid him .by saidadtfiinistra:tor'and These matte'.tsofrelieh.re sought upon: .of fral1diti\lnt concell:lmentahd of ieriaiJ!;thctllbysaidCossett in 'procutihgisllid settlement, 'and in his wrong:. fUlly'amikrl.(}\'ringly inclUding inhis''tlleed to the'heil's'ofPuHiiamcertain pardeis) 'compariitively worthless-; whichi'their intestate had not purcpased','aJid obtaining payment fei-:tbesame; lind !tiponihe fUl'thel' alleglttlon·tjNriutual ttiistak{ljboth '6f 'fact and'of'law','in'respect to said lana improperly'ineluded, itisaid' alleged overpayments' made to 'said CosseU:by reason 'of 'said fraudulent concealment and rnisrepresenfutibrl in 'procunng said settlement'and inlhe execution byreasonofthe mistliIieof material facts, are be recovered, .. Cossett objection by-way 6fdetmirrer frame, of the bill and to the relief sought, but answiered, the same, putting in isstie the charges on which' the equity of the bill Proofw8.s: taken on 'both sides t1pon the issues thepleildirl/ts, lind upon of'the cause in June, 1889, suit, nofupon its merits; <aiflrtltted: by had It 'complete at law upon of seisin and warranty contained in 'the Ideed from' Cdssett to'l'b:e heirs of Pulliam, and that the case as presented by the biU: did' 'not'pr6Vetly come within the equitable jurisdiction of this court. Leave was'gTanted c&m'plaihants to present an application for rehearing, which the presiding judge requested , JActtSbl,q';'Jf.'It is not deemed;necassary'tO go of i ttie'-'ple8:dirigs and·evidence in thiS case. andihIie'ilded' bills" is Ito, lIetasidEI '&:.f
, OUi Application f()r
755 should j1!dge ,hisdetermin!l-tion. This appliea;tion havjngol;l:W' b,een ar&'i1ed" and, in jXlnnection there-: with, t.hempse. submittedupll>n .its merits,and this comrt, having care-: fully examined the record and the questions'presented; .has reached and h!'lrebyaJloo,upces its conclusions in the premises as follows. viz.: 1. for the rehearillg should be and,is accordingly .·,Thlloriginal and aJ;llended bills make, in the Jttdgtnent of tbis for the proper exercise of the. equitable jurisdiction of the" court., contains clear allegationspf fraud in the shape of misof mateJ!ij:1.lfacts on Cossett's part, and of. the rights of the parties, and seek to hav-e reformed '\'I1Piph Qossett e,xecuted to the heirsqf These grounds the of raHar matterS' of equitable cog!?-izance, .and .suffici!lotto ,of the court over tbesubject-matter ofthe suit. maintain,the' The remedyatlaw is not complete and adequate. Htlle heirs of Pulliam sueda,tla.w UPOIl the covenants in Cossett's deedto·them, how could they recov,er: the 28.08, acres which it is clai.med l:lctually belonged to thei): included ill deed? WWe holding that conveYllOce, could they at law dispute Cossett's But,asidfi! from this, there ;is no remedY,,A-tlaw tqreform that conveyance; ,but,evenirtQel;ewas a cOlllplete reme<,lyat it is where fraud;ormist!ike is tjle ,ground of relief, .theJurisdiction ofa. court of equity is nqt QUjiteP.by the, <;oncurrentremedy at law; The bill corues within¢e jurisdiction court, arid the complainants were enti\led to a hefl,ring and decision uponthe merits the case.. 'the order of JU'l',l:e 8,: 1889, dismissing complainants' original and bill, is accordjogly: areh,eariqg of cause granted. ,'. exceptiqns directquestions21, 22,26, and 27,andtbe the deposition of A.,P; Rose, are sustained to the extent that the statements .of said witness, undertake,or purport to show the ternls of the wdtten .contract between F. D. CQssett and. S; A-.dams, as contained in the tiUe-:bond orthe fortnerto latterj,,'ere altered or vll-ried by parol' agreement. . :Oireet 13;to 18,jnclusive,ln the deposition of Ilont. for the Ila.me reason, and said exception is sUlltained.';i1 far, as said ,RpSW!'lrs change or vary tnewriir teo,.coptract. flxpressed' in, the title-bond to Adams. they are incom to questions 16, 17, thereto, ,in deposHiqn of defel1dant D. are,s-Qst,ailled1an<i!. the tesQmony therein. giyen 'agreeand!u.n4erstandi ll gs h,nd petweenhimselfand J. J. deas inCOmp.etellt 38,an,d tberet<>, IndeposltJRn ofA. is oot,wel,\:taken.and is,overruled., , . "" . ·. .' 3. ,. in the amended billof J., J! p;ulliam; . ;thatit that was. said tha:t and by wis" ' , . l. . · -. -
756
J'EDERAL BBPORTER,
vol. 45.
takelnclpded in of January, 18S4',tothe heirs of said Pplliam, and thean;iQunt paid said Cossett therefor, viz., $336.96, should be refunded bihim, with interest thereon fromalid'after August 6, 1873. 4. The proof that by mistake, inadvertence, or fraud the said Cossett included in his conveyance to the heirs of Pplliam 145.75 he had in 1866 conveyed by title-bond to S. Adams. This'parcel qf land was not included in the survey made by Pulliam in his but was inclpded in the survey made;by; defendant Cossett aftEir.SlJ.id Pulliam's death, which survey was made'w,ithdut notice to the heirsbfPulliam, was conducted by Cossett in person, who directed the surveyor to cPt off froD;l the S; Adams tract, as described. in the titlebond of 1866, said 145.75 acres; so 'as to throw the'same into the Pullex parte was conducted under suspicious circumstances, and was attended by statements made by Cossett to young Adams, (and 'which CCl8sett does not contradict,)which manifested a designepd intention of entrapping the agent of the Pulliam. heirs 'into ari adPllssion or claim of ownership of said parcel of land; so as to estop them: from questioning right to include saidparcelJ in'his deed to thetn,.' Following tHis,contrivance to mislead or entrap said hetrs, ,ft is estalHishedby theprepQnderancebfthe evidence and the circumsta,nces of the 'casethat said;CoSsett represented' to complainant Hancock that the Adanis title-bond: 'covered only 100 acres, and did nbtdisclose to him or to Beasly 'thefactthp.tsai:dtitle-bond' embraced said 145,75 acres. Neither Hancock nor Belisly'kriew what the Adams tiUe-bond coveted, and complainant Hancock'wouldnot have settled with said Cossettif he hadktiown the Hancock's version what occurred between Cosse,tt in Jan:uary, 18M', at' the time of the settlement in relation to the Adams title-bond· is Inbre satisfactory than the uncertain and argum:entative statement Cossett. Cossett had recently aminedthat title-bond, when the survey of1883 was made by him, and could not have been ignorant of the fact, which he admits in his deposition, that the Adams title-bond covered this 'He claims that the complainants knew this fact; but that is not established by the proof. He had no righttoincludeit in his deed'to complainants without a full and fair disclosure of all the facts. This he "did Mt make. The proof is wholly insufficient to show that J. J. Pulliam ever took sion ofor claimed said 'parcel of land as being included in his title-bond. The fact that he did not have :t included in his survey' made in 1881 is quite Again, 70 acres of said 145.75.acre parcel never in fact belonged to defendant Cossett at any time nor was he ever in,a;ctuM possession' th,ereof. Said '10 acres lieiti the west end 'of said st:tip b'Eftween the Stafford southtme-fourth section and 'Wolf river, and belonged ,to E. M·· Apperson and his .Cossett never' had eithel"/color bf :title thereto, or possession, actual or constrp,ctive.' Others holding title 'Uriderand. 'thi'oughsaid Apperson had constructivepossessiontheroof. This 7() 'acres 'was not embraced in the title-bond tb Pullhttnjand was hhpropetly, through fraud oduistake on Cossett's his
of
ltANCOCK '!1. COBBETT.
757
deed to the heirs of said Pulliam. Excluding this 145.75 acres, Cossett is liable to the estate of,Pulliam for a deficit of 133.97 acres at $12 per acre, making $1,607.64, with interest since August 6, 1873. 5. There was no excess of 11.78 acres, as claimed by Cossett, and for which the complainant Hancock, administrator, paid him in the settlement of January 24, 1884, and the amount paid Cossett on the Bupposed excess will be refunded by him, with interest from date of settlement, January 24, 1884. 6. The conveyance from Cossettto the heirs of Pulliam-Exhibit E to the original bill-should be reformed so as to exclude from its operation said two tracts of 28.08 and 145.75 acres, respectively. A decree will be entered in conformity with the foregoing conclusions, in favor of complainants and againstthedefendantF.D. Cossett, and 'said COBsett will be taxed with the costs of the cause. HAMMOND, J., (dissenting.) It was understood at· the time that the argument of the petition for· reheating was directed to be made before: the circuit that if he should take a different view of the case, and there should be a disagreement between the judges,· the parties were to have the penefit of that fact upon the record. No suggestion was made at the argument before me, I think, that this bill'could be maintained as one to reform the deed, buiit was nrged that it was a bill to set aside a settlement made subseql1entlyto the deed, and evidently contemplated by the deed itselfbetween the partiesas to the number of acres conveyed byit,-very much; one might say, as a bill would be filed to surcharge aJ,ld falsify for; fraud an executor's or administrator's settlement or any stated settlement of dealings between parties. It does not seem to menow that the .bjil can be maintained as one to reform the deed. ' The deed conveys all of Cossett's lands in a certain location, and by it what.. .ever he had passed, no more no less,and be it more or less, and the aOlOuntwas to be ascertained subsequently.. Now; the proof seems to meto establisl;l that there was a confusion of boundaries and of know1 .. .edge as to the Cossett lands, and that whatever mistakes or losses' occurred were as much the fault-of.Pulliam as Cossett. If the vendee allowed lands to which the deed gave him title to be.lost by adverse pos-' session of others, that was not Cossett's fault at all,and the parties made the best settlement they could· of quantity, and it was paid for by the' vendee. If he paid too much, under circumstances not precluding-him, be might, in an action for money had and received, or possibly in an .action on the covenants of warranty, have recovered the overpayments, . but I do not yet .see how a· bUl would lie even to reform the deed.· I therefore dissent from this judgment.
758".
J'EDERAL R1ilPOR'llER,
vol: 45.
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D.WQsMnQt.on. April 7, 1891.) .... . '::.:"'j ": i Ji'tlB:r,xOLAND-;PA,'l.'ENT-CA,'-OELLATION.. " :/; t ,.
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ill a suit to cancel a patent'to public land entered I\S timber land 1t apthat the land WlIsnot infactun1i't till' cultivation, III!ld ohiefly.valuable for its timber, and therefore not subjeot to entry as timber'land, yetif ,the patent does no\ show that the government in issuing it relied upon tbe representation that It was ,t;.m1;ler land, the title wiUbe' protecwd iul'the hands of'a bona jidepurcbaser. .
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p.·. ,O. Sullivan, Asst. U.S. Atty. ' ,
In Eq'llity.
, Ie hikerl8'and ,J.P. Oa88,for'defendants.
HANFORD, J. This is a suit brought by direction of the attorney general <lUbe United States to obtain a decree canceling a patent for a tract of lana issued in the year 1887 to the .defE!ndant, John P. Scholl, who of it alJtimbel' land under the act of June 3, 1878, the entryanclproqfsbeing made in the year I883.·The testimony satisfies me thatdhe, land is not in fact chiefly valuable for timber, and for that reason notsubject to entry under the provisions 'of the statute providing for the sale'oftimberlatid;and,if; the,suitwereb'tought against the orig-' inal· entryman or i patentee of the government, the relief prayed for should be granted. Several transfera of the title, however, have been made;' The'pl'esentowners of the laud bought.itafter, the patent had issued. Theybonght,it from the appllrent owners ofa 'petfeot legal title. and there would be no equity, ,it,seemstO'me; in imposing upon them the entire loss of the, property and the purooasa'money which they have paid for it. The stAituteunderwhich the entry, was made contains a provision that, if 1illse·representlltions are'made in acquiring title, the entryman shall forfeittbe money whichhe;pays, and 'all his right, litle, and interest to the: land.' It also provides that every conlfeyance that he makes orthe Itmid:'shalLbe- void, except lllJ,il'Il;a.inst bonafide purchasers,<recog- ' nizing' the priMiple of 611uity that: the purchaser of a ,legal title for a ' va}uable;oonsid:eration,:witbout notice ohnyoutstanding equitable claims ta-':protection to-the extent that equity against the property, will not enforceamerelyi equitabler;ight 'against his legal title. The testimoriyvery fully makes out the defense as,set "p'here of a bonafide pur.' chase' bythepresenfowli1er. It is insisted by the attorney for thetJnited the land'itself shows that it was not of the character.,coritemplated:in:the act 'oif!'c@ugteSsprovidihgfor the sale bf;' land, and that a purchaser. .supposed to know from' j the appearance of the land that the entry was fraudulent, and that the patent was obtained by fraud, and therefore chargeable with notice. But I find that the patent which was issued for this land does not purport to have been issued under the act of June 3, 1878, and it does not Elhow that the government was relying upon any representation that the land was chiefly valuable for timber and unfit for cultivation. The pat-