Cooper v. Wilder

SEARLS, C. This is an action to quiet the title of the infant plaintiff to a forty acre tract of land, described as the NW. of the NW. % °f section 12, in township No. 14 S., of range No. 2 W., San Bernardino M., situate in the county of San Diego, state of California. The cause was tried by the court without a jury, and judgment entered in favor of defendant, from which judgment, and from an order denying his motion for a new trial, plaintiff appeals.

There is no material conflict in the evidence. The tract of land in question was duly entered as a timber culture claim, under the laws of the United States (it being public land of the United States), in November, 1879, by David Cooper, who occupied the same until his death, which occurred in 1881. By his last will he bequeathed and devised all his property, real, personal, and mixed, to his wife, Narcissa T. Cooper, to the exclusion of his son, Charles Edward Cooper, the plaintiff and appellant herein. Administration was had upon the estate of said David Cooper, and the property, including the land -here in dispute, was regularly distributed to the widow and devisee, Narcissa T. Cooper. In 1892 a patent issued to the land in question, which recites, among other things, that the claim of the heirs of David Cooper, deceased, has been established and duly consummated in conformity to law, etc., and then proceeds to grant the land as follows: “Now, know ye that there is, therefore, granted by the United States unto the said heirs of David Cooper, deceased, the tract of land above described, to have and to hold the said tract of land, with the appurtenances thereof, unto the said heirs of David Cooper, deceased, and to their heirs and assigns forever.” [79]In October, 1891, Narcissa T. Cooper (having previously intermarried with one Dodson) executed a mortgage on the land to H. G. Wilder, the defendant, who subsequently foreclosed, purchased the property at a sale, and, no redemption being made, received a sheriff’s deed therefor in due time, and holds the title which Narcissa T. Dodson had or could convey therein.

Objection was made at the trial to the introduction in evidence of the probate proceedings upon the will and estate of David Cooper, upon the ground that such proceedings were wholly irrelevant and immaterial to the question of the title to said land, or to any title therein or thereto, of Narcissa T. Dodson, as grantor of defendant. The branch of the case which turns upon this exception is this: Had David Cooper an estate in the land at the time of his death which he could devise by last will to his wife, the grantor of defendant 1 The solution of the question depends upon the construction to be given to the timber culture act, as amended June 14, 1878: 20 Stat. 113. The clause directly involved is contained in the latter portion of section 2, which is as follows: “And provided further that no final certificate shall be given or patent issued for the land so entered until the expiration of eight years from the date of such entry; and if at the expiration of such time, or at any time within five years thereafter, the person making such entry, or if he or she be dead, his or her heirs or legal representatives, shall prove by two credible witnesses that he or she or they have planted, and for not less than eight years have cultivated and protected such quantity and character of trees as aforesaid, .... they shall receive a patent for such tract of land.” The contention of appellant is: (1) That David Cooper, having died within two years after making his entry, could not have complied with the law which required him to “have planted, and for not less than eight years have cultivated and protected, such quantity and character of trees” as was required by the statute as a condition precedent to 'his receiving a patent to the land; (2) that the recitals in the patent and the granting clause thereof show that it was “the claim of the heirs of David Cooper, deceased, ’ ’ that was established, etc., according to law, and that it was “unto the said heirs of David Cooper, deceased,” etc., that the grant was'made.