Orr v. Stewart

Belcher, C. C. In January, 1870, the defendant Stewart made a homestead entry in the proper United States land office upon 160 acres of public land in Siskiyou County, under the provisions of the Homestead Act of 1862. In December, 1875, he mortgaged the land with its appurtenances, to the plaintiff Orr, to secure the payment of his promissory note for $2,000. The mortgage was made in the form given in section 2948 of the Civil Code. In December, 1880, Orr commeñced an action to [276]foreclose his mortgage, and on the 7th of February following, after a trial, obtained judgment for $4,106, and decree of foreclosure and sale. Under this decree the mortgaged property was sold by the sheriff on the 5th day of March, 1881, and bid in by Orr, and on the 10th day of September, 1881, he received the sheriff’s deed. Possession of the property was surrendered to him on the same day he received his deed. A few days later Orr conveyed the premises to one Cunningham, and on the 5th of November, 1883, Cunningham and wife reconveyed to Orr. In October, 1883, Stewart went to the United States land office and was there permitted to commute his homestead entry into a cash entry, and he accordingly then paid the government price for the land in full, and received a duplicate receipt and certificate of purchase therefor. From the time he obtained possession under his sheriff’s deed, Orr and his grantor remained in possession of the land up to the time when this action was tried.

This action was commenced by Orr to quiet his title to the said land and to certain water ditches, and water rights, alleged to be appurtenant thereto. The defendant answered, denying that the plaintiff owned, or was entitled to the possession of the land or its appurtenances, and setting up his proceedings in the land office to acquire the title.

The case was tried by the court and the facts found to be s'ubstantially as above stated, but judgment was entered in favor of the defendant upon the grounds as shown by the conclusions of law: —

“1. That the legal title to the land in controversy in this action, and to quiet which plaintiff has brought this action, is in the government of the United States.

“ 2. The fact that plaintiff is in possession under the decree of foreclosure and proceedings thereunder had, or that he obtained such title as defendant had at the time the mortgage was given, and decree made and entered in the former suit between these parties, does not entitle him to judgment in this action for said land, or ditches, or appurtenances.