Elliott v. Figg

Sharpstein, J.: This action is brought to obtain a decree that the defendant holds the land described in the complaint in trust for the estate of one Hensley, deceased, of which the plaintiff is administrator, and that the defendant execute a conveyance thereof to the plaintiff as such administrator.

The complaint was demurred to on the ground, among others, that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and judgment entered for the defendant. From that judgment the plaintiff appealed.

The most favorable construction for the plaintiff which we are able to place upon the allegations of the complaint is that [118]his intestate Hensley, by reason of his compliance with the pre-emption laws of the United States, became entitled to enter the land in controversy, and that he was prevented from doing so by the defendant and one-Ayres, from whom the defendant claims to have purchased said premises.

Ayres initiated a pre-emption claim to the premises by filing a declaratory statement before Hensley filed his. But it is alleged that Ayres had abandoned his claim before Hensley initiated his. Still Ayres was permitted to enter the land under his pre-emption claim, and transferred the title which he thus acquired to the defendant, who subsequently obtained a patent from the United States, based upon said entry and transfer by Ayres. Hensley had no notice of the application of Ayres to purchase under his pre-emption claim, and therefore did not contest his right so to do. But after Ayres had purchased and received a certificate thereof, Hensley initiated proceedings to have said certificate canceled, which culminated in a decision by the Secretary of the Interior that the defendant was entitled to a patent, which was accordingly issued to him.

The plaintiff alleges that the defendant procured that decision through false testimony, by which the Secretary was imposed upon and induced to believe that the defendant was a bona fide purchaser from Ayres for a valuable consideration, and without notice of any flaw in Ayres’ claim to the land, and that Hensley was taken by surprise by said testimony, and was not at that time prepared to prove it false, “ and did not learn of any witnesses who could disprove the said testimony of defendant until a long time thereafter, and until the latter part of the year 1877.” The testimony referred to appears to have been taken in the early part of the year 1875.