Davis v. Fell

JAMES, J.

This action, as the complaint formulated it, was one of ejectment to recover possession of a tract of 160 acres of land in the county of Imperial. Damages in the sum of $3,000 as the value of the rents was also prayed for by the plaintiff. The judgment awarded the relief demanded, including the full amount of damages asked for, from which judgment the defendant A. S. Fell has taken his appeal.

In answer to the plaintiff’s complaint, appellant denied the right of the plaintiff to possession of the property and alleged such right to be in appellant as successor in interest of Levi C. Vickrey, deceased. An additional defense was presented by the answer of appellant, to wit, that there had been an adjudication of the matters in controversy in an action brought by the same plaintiff against appellant in the federal district court.

In a cross-complaint appellant joined Mary L. Vickery, as administratrix of the estate of Levi C. Vickrey and also as for her own interest, and the prayer of the cross-complaint was that there be a determination made that appellant was entitled to possession of the property as against both the plaintiff and the Vickrey interests. Mary L. Vickrey, in her individual capacity, answered the cross-complaint and on her part asserted a right to have possession of the property. The facts as alleged constituting her defense against the plaintiff’s claim were in the main identical with the facts alleged by appellant, except that she did not assert a defense based upon a prior adjudication in the same controversy.

Plaintiff’s sole claim of right to possession of the land was based upon patent issued by the government of the United

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States on January 14, 1919, under an alleged homestead entry made by the said Davis. The further facts in connection with the circumstances under which the paper title was acquired and as they affect the appellant are these: On October 16, 1901, Levi C. Vickrey made entry under the Desert Land Act of 240 acres of land, which was at .that time property of the United States and open for entry. On April 25, 1903, Vickrey entered into an agreement with appellant to sell to appellant .160 acres of that land and at about the same time made a contract with a man named Whipple to sell him the remaining 80 acres. Appellant immediately took possession of the 160 acres, which was arid and worthless except as it might be made productive by irrigation. Appellant made improvements thereon, obtained water and cultivated the land, expending in such endeavors approximately $5,000. He erected fences and occupied the land as a home for a number of years continuously after receiving his contract from Vickrey, and by 1908 the land had become fully productive and was worth many times the value it had when Vickrey made his entry thereon. Appellant paid the sum of $400 to Vickrey upon receiving his contract, and he had made, in addition thereto, by June, 1909, thirty-six payments of $15 each. Subsequent payments of other amounts have been made. In July of 1905 Vickrey made final proof under his entry and final payment of all moneys due the government, which moneys were accepted and receipt issued. His proof as to improvements was based upon appellant’s expenditures and labor. In November of 1908, plaintiff Davis filed in a local land office a contest by which he sought to have nullified the right of Vickrey to a patent, upon the ground that the entryman, before making final proof, had made an unlawful contract to sell the land to appellant. The decision of the officers of the local land office, and the decision of the commissioner on appeal, and also the decision of the Secretary of the Interior, sustained the contest, declared the Vickrey entry to be fraudulent and unlawful, and granted the right of preference to make entry to plaintiff Davis, who on January 30, 1913, filed homestead claim. The property being occupied by appellant, Davis was unable to secure possession in order to satisfy the homestead requirements, and on October 27, 1915, he commenced an