Buckley v. Howe

Patent — Enforcement of Trust — Fraud — Mistake of Land Department. — Equity will decree and enforce a trust in favor of a party who shows a better right to land, a patent for which had been procured by the fraud of the defendant, and through mistake and misconception of the law on the part of the officers of the land department of the government.

Id.—Equitable Title of Plaintiff—Right to Control Legal Title. — In such a case, it is not enough to show that the defendant was not entitled to have received the patent, hut the plaintiff must show that he himself occupies such a status toward the property as entitles him to control the legal title.

Id. — Pre-emption Claim — Pleading — Conclusion of Law—Pacts Conferring Prior Right. —- Where the plaintiff in such action claims priority of right over the defendant to become the purchaser from the government, and to receive a patent for the land in controversy, under a pre-emption claim, it is not enough to allege be had or has such right, as that allegation is a mere conclusion of law; but the plaintiff must show the state of facts conferring such right, and also that he took the legal steps to avail himself thereof.

Id. — Homestead Entry — Rejected Application—Failure to Appeal or Contest Issuance of Patent. — Where the application for a homestead entry, under which the plaintiff claims, was rejected, and no appeal was prosecuted from the order of the register and receiver rejecting the same, and no further steps were taken to secure its approval, or to contest the issuance of the patent to the defendant, who proved up and paid for the land as a pre-emption claimant, the plaintiff possesses no right, by virtue of his homestead entry, to control the patent, or to enforce a trust therein.

Id.—Possession of Land Pre-empted by Defendant.— Nor will the fact that the plaintiff claims as an assignee of an actual possessor of the laud pre-empted by the defendant avail the plaintiff, it not appearing that such possessor objected to the defendant’s entry or possession of a portion of the land included in his inclosures, or resisted his pre-emption claim.

Id.— Naked Possession of Public Domain — Acquiescence in Rejected Application.— Neither naked possession of the public .domain, nor a rejected application for leave to enter it, under whatever law it may be made, if the rejection is acquiesced in, and not appealed from, will give any such right or title as will enable the claimant successfully to attack or control a patent issued by the government to another claimant.

Amendment of Complaint after Demurrer Sustained—Discretion — Failure to Except — Objection on Appeal.—The privilege of amending a complaint after the trial of the issue of law, raised by demurrer, is in the discretion of the trial court, and where the demurrer is sustained without leave to amend, and nothing appears in the record to show an abuse of discretion, or that the plaintiff applied to the trial court for leave to amend, or took an exception to a refusal of the court to grant such leave, it is too late to raise the objection for the first time on appeal that the court failed to grant it.