M'CLUNG V. STEEN.
373
:lame service. The /;lase of Edwarda v. Bond, 5 McLean, 300, decides that a juror can also receive pay as a witness. After careful consideration of the opinion in that case, I cannot agree with the learned judge. It is ordered that the applicant, A. B. Turner, be paid the per dieJTI of a witness from the time he was discharged as grand juror, and no longer.
MCCLUNG
and others v.
STEEN
and others.
(Oircuit Oourt, D. Minne8ota.
September 12,1887.)
1.
PtmLIC LAl'lDB-WHEl'l· TITLE PASSES-QUITCLAIM.
On payment of the purchase price and issue of the receiver's final receipt, the full equitable title passes to the person who has entered the land, and this title he may convey by quitclaim prior to obtaining the patent. 1 As· against the grantee under an unrecorded quitclaim executed, after issue of fino1 receipt, by one who had entered the land under a warrant, a grantee under a subsequent quitclaim executed after patent issued takes no title. Where a deed is regular on its face and duly recorded. the burden of proof is on the party attacking it to show facts establishing its invalidity.
2.
SAME.
8. 4.
DEED-VALIDITY.
The fact that, at the time the grantor in a quitclaim deed executed it and left it with his agent for delivery, the name of the grantee and the amount of the consideration were not written in, does not render the deed void, where the agent had authority to fill out,the. blanks in a certain way and did so fill them out before the deed was delivered. In Wisconsin, where money or other securities of one person are used by another to purchase property in his own name. an implied trust arises in favor of the party with whose means the purchase is made. Where A. and B. are the only parties to a suit affecting the title to one of several tracts of land conveyed by a quitclaim, a judgment in that suit de· claring the deed to be void is. as to C. and D., neither of them privies with A. or B., simrly 1'ea inter alioa acta, and, in a suit by C. against D. to quiet title to another 0 the tracts covered by the quitclaim, is neither binding as rea adjudicata nor estoppel.
ti. TRUSTS-IMPLIED.
6
JUDGMENT-EFFECT ON THIRD PARTIES.
'7.
EVIDENCE-ANCIENT DEED-CONDITIONAL ADMISSION.
In a suit to quiet title the court intimated before the argument was closed that judgment would go for the plaintiff, The defendant thereupon moved to open the case and to introduce parol testimony to show that the deed under which plaintiff claimed title was in fact void. The deed in question was 36 years old, and the parties to it as well as those who were cugnizant of the circumstances of its execution were dead. Held, that it was competent for the court to impose, as a condition of the opening, that the defendant should con· sent to admit in evidence testimony of those who knew the facts about the execution taken in other cases and between different parties, and subjected to cross-examination therein. '
In Equity. 1 Where the right to a patent for land has become ve&ted in a purchaser, the government holds the legal title in trust for the pnrchaser anti,l the patent is issued. U. 8. v. Frevbelg, ante. 195. .
374
FEDJilR.U,
REPORTER.
Williams & Goodenow, for Jloqt. D.. and Harris Richardson, .for defendants. BREWER, J This is an, to quiet title. The taking of testimony was aU, the case submitted, and partially argued before my Brother:NELsoNandmyselfat the December (1886) term. As the case then stood, the facts were these: The land was entered by Charles R. Conway,and the final receipt issued June 1, 1850. On the same day It quitclaim deed signed by Conway and his wife to 1. B. Heylin was executed, but not recorded until August 14,1854. The patent was issued on October 5, 1852, and recorded OctOber' 14, 1854. Under this quitclaim deed to Heylin compJainant claimed title. On May 27, 1854, after the issue of the patent, but before the record ofthe quitClaim deed to Heylin, Conway executed a second deed to one G. Starkey, under whom this t,claimed BeyQud the title derived through the quitclaim deed to Heylin, complainant nilliimedtitle by virtue of certain tax proceedings, and a1l10 in the thira place by virtue of the foreclosure of a mortgage given ,by the ancel;ltor of defendant. These last two chains of title I shall not stop to consider.,' In the argument. then made before us, defendant's counsel claimed that the quitclaim deed to Heylin was void because, before the,iSsue of the patent. This was clearly' wrong, far on 'the payment of the purchase price and issue of the receiver's final receipt the full equitable title passed to Conway. The govern": m,ent held the nakedJegaltitle in trust for him, and Conway's this full equitable title. Carroll v. Safford, 3 How. quitclaim 461; Wither8poon ... Duncan, 4 Wall. 210; Myers v. Croft, 13 Wall. 291; Camp v. Smith, 2 Minn. 155, (GiL 131.) The full equitable title having thus passed to Heylin,the subsequent quitclaim, to Starkey conveyed nothing. Marshall v. Robert8,18Minn. 405, (Gil.3Ba;) May v. Le Olaire, 11 Wall. 232; Baker v. Humphrey, 101 U. S. 494. In this last case the court llSes this langu,ag;e:; IINeither of them wasin any sense a' bona fide purchaserli No one taking a quitclaim deed can stand in that relation." IJefenoant also relied on two judgments and decrees of the district court 'o{Jtamsey CQUllty, Minnesota, in the cases of Steadman v. Heylin and Wolf v. Same. The first was a case in which complainant brought suit upon a tax title and obtained in his favor; as the title, thus established passed hysribsequent conveyance to the present complainant, of course this judgment availed, the defendant nothing. The other case ",as about different property, though covered by the same quitclaim qeep tQHeylip, and in that case appeared'findings against the validity of that deed, but such judgment and decree, being in respect to otlier property'atllj" riot, behveel1 to this sp#, were simply res inter a7Jios acta, and neither as res adjudicata no'r estoppel. Before the argument was finished, we intimated to counsel our views upon these matters, and thereupon counsel prayed leave tv open the case,and introduce parol testimony to show that this quitclaim deed from Conway to Heylin was 'in fact void. ,This 'application was strenuously resisted, but after fuUeollsiderationmyBrother NELSON and Ithoughtthe applij
I' I
M'cl..UNG tI. STEEN.
375
<lation should be granted upon condition that defendant should COfloent to the reading in evidence of the testimony of Franklin Steele and Henry A. Lam bert,-testimony taken in other cases between different parties and subjected to cross-examination. The reasons for imposing this condition were that Heylin, the grantee in that deed, was dead. Steele, who had been his agent in delivering certain land-warrants to the firm of Conway, Lambel't& Nichols, was also dead, as was Lambert, the party who speeiallyacted for Heylin, and who took the acknowledgment of the deed ftomConway and wife to Heylin. The defendant had no absolute right to an opimmg of the case, and,'as this deed had been executed 36 years before, it seemed to us no more than fair that all light that could be thrown upon the circumstances of its execution should, be placed before us as a condition of the opening of the case. Of course, save as a condition imposed by the court of the opening of the case, such testimony would be incompetent, and counsel now insist upon iUt incompetence, and insist on the invalidity of the conditions by the court., Believing that we had a right to impose the condition, I overrule the objection of incompetency. At the June term, 1887, the case, with the additional testimony, was argued before me alone, and upon this additionallestimony I remark as follows: First. The deed being apparently rogular and duly recorded, the burden is defendant to show facts establishing its invalidity. Second. The facts, as disclosed by the testimony of Conway, Steele; and Lambert, so inr from 'proving invalidity, tend in my mind fully to esta,blish its validity. The firm of Lambert & Nichols was formed in the or 1850, and eontinued during the winter of 1852. This fact is shown by the advertisements in the papers at St. Paul, and does not rest upon the memory of witnesses., This tract was entered with a land-warrant. Conway testifies that he obtained this warrant from Lambert in ,settlement: of the bal'ince due him frorn Lambert after the dissolution of the partnership. Obviously this is a mistake, and he has sithplyconfouhded this transactionwith some other, for this land was entered a y.ear and a half before the dissolution of partnership. On the contrary, Lambert testifies that this)at)d was entered with a }and warrant belon&ingto Heylin, and that immediately upon the day of its entry a wasexecllted by Conway.and his wife to vest the title in Heylin. Steele testifies that he delivered certain land-warrants to the firm of Conway, Lambert & Nichols, and that he paid the bill of that firm fo,r,their services for the location of his land-warrant, and in this testimoIlY presents their receipted bill. These are the salient facts, and while there,are other and minor matters in which there is some conflict, yet I have little doubt that this is substaritially the trlith. I think, therefore, the attempt to this deed by this parol testimOnY has failed. , , . ltis said, however, by counsel for defendaI,lt, when the deed was first prepared, and, as Conway, testifies, when he and left it with "Lambert; the, name of the graflw,e an,d, the were n9t wri in. Supposing this to be true, if, as seemsto be conceded, authority was given to Lambert as an agent of Conway to fill in these bian.ks ina cer-
.
376
FEDERAL REPORTER.
tain way, and they were so filled in before the deed was delivered, it would have to be held a valid conveyance. See Pence v. Arbuckle, 22 417; Drury v. Foster, 2 Wall. 24; Allen v. With,row, 110 U. S. 119, 3 Sup. Ct. Rep. 517. Further, even if the deed as a deed was for any reason void, upon the testimony of Lambert and Steele it would have to be adjudged that COllway took the title simply in trust for Heylin; for the rule is and was in the territory of Wisconsin, where this transaction took place, that, when money or other securities of one person are used by another to purchase property in his own name, a resulting trust arises in favor of the party with whose means the purchase is made. Rogan,v. Walker, 1 Wis. 454; Moffattv. Shepard, 2 Bin. 60; Friedlander v. Johnson, 2 Woods, 675. So that under :any event, without considering any questions arising under the last two chains of title set forth by .complainant, I am of the opinion that his title derived under. the Heylin deed is both by the record and the parol testimony good, and decree must go in bis favor as prayed.
UNI'1'El> STATES 11. MURPHY.
«(Jircuit Oourt.
w: D. Michigan, No D
October I, 1887.)
PUBLIO LANDS-CUTTINGTIMIlER-HoMESTEADER'S RiGHTS.
While holding land under a homestead entry, the homesteader can only cut and sell the timber from such portion or parts of the land as are being cleared for cultivation or settlement.!
2. SAME-CUTTING TIMBER-MISTAKEN VIEW OF RIGHTS.
The fact that defendant was' induced, through the wrong representations of the register of the land-office, to believe in the unrestricted right of the homesteader to cut timber from his entry, does not estop the government froJ:Il prosecuting him for such unlawful cutting. It is no defense to a prosecution :for unlawful cutting of timber from public land that there was no criminal intent in the cutting.
3.
SAME-CUTTING TIMBER-CRIMINAL INTENT.
4. SAME-ACTS RELATING TO - CoNSTRUCTION OF, BY SECRETARY OF INTERIOR· .T he interpretation placed upon public land acts by the secretary of the in-
terior is not binding upon the courts.
Criminal Prosecution for Trespass upon Government Lands, cutting and removing timber therefrom. Motion for new triaL G. Ohase Godwin, Dist. Atty., for plaintiff. F. W. Olarkand B. J. Brown, defendant. JACKSON, J., The defendant, having been indicted for cutting and removing timber from certain lands of the United States, contrary to the provisions ofSection 2461, Rev.-St, was tried and convicted, and now moves for a new trial on the groun.d of certain alleged errors committed by the trial judge in the rejection of evidence offered by the defense,
lSee note at end ofca.se.