Recent U. S. Land Decisions. Pond vs. Southern Minnesota Rail Road Company. WHERE a warrant, located in payment of land, is canceled for forgery in the assignment and a substitution of cash or another warrant is authorized and not limited in time, the land covered by such location is excepted from a railroad grant attaching after such cancellation, though the substitution is not made for years. LAND subject to private entry may be purchased by a party not residing thereon. DEPARTMENT OF THE INTERIOR, To the Commissioner of the General Land Office-SIR: I have considered the case of Theron C. Pond vs. Southern Minnesota Railroad Company, involving the south half of north-west quarter and north-east quarter of south-west quarter section 33, township 103, range 24, Worthington, Minn., on appeal from your decision of July 14, 1876, refusing to list the above land to said railroad company. The lands in question are within the limits of the grant to the Southern Minnesota Railroad Company, which took effect November 29, 1866. Pond entered this land with military bounty land warrant No. 70723, June 6, 1863. It appears that this land warrant was issued to Phoebe Gill, widow of Stephen Gill, on April 9, 1856, and was stolen from her, and her signature forged to the assignment. Said warrant was canceled for that reason by Pension Bureau, March 12, 1866. On March 29,1866,your office allowed Mr.Pond the privilege of substituting a legal consideration in lieu of said warrant,but it does not appear that this has ever been done. You refused to certify the land to the railroad company because, at the date the right of the company attached, the land was covered by a claim capable of being perfected. The re cords of your office show that, although the warrant has been canceled, the entry still remains uncanceled. I am of opinion that Pond had a valid right to perfect his claim at the time the grant to the railroad company took effect, and that the land was thereby excepted from the grant. Your decision is affirmed, and the papers transmitted with your letter cf November 13, 1876, are herewith returned. Very respectfully, C. SCHURZ, Secretary. I have considered the application of John K. Brown, land commissioner of the Southern Minnesota Railroad Company, for a reconsideration of my decision in the case of Theron C. Pond vs. Southern Minnesota Railroad Company rendered March 14, 1877. The tract involved in this case is the south half of northwest quarter, and northeast quarter of southwest quarter section 33, township 103, range 24, and is situated within the Worthington, Minn., land district, and within the limits of the grant to the above mentioned railroad company, which took effect November 29, 1866. This application is based on the following grounds, to wit: First. That Pond had not resided upon or improved said land prior to entry. Second. That said warrant location was canceled before the right of the road attached, of which fact Pond had notice, and as he has not perfected his entry or lived on the land since, this default is conclusive evidence of abandonment. Third. That the land was ipse jure vacant at the time the right of the road attached. With reference to the first ground relied upon by the road, I find from an examination of the records of your office, that Pond entered the land in contest with military bounty land warrant No. 70723, June 6, 1863; that said warrant had been stolen from Phoebe Gill, widow of Stephen Gill. to whom it was issued, and her signature forged to the assignment, and it was therefore canceled by the Pension Bureau March 12, 1866, and a new one issued in lieu thereof. The land in contest was offered October 29, 1860, and being thus made subject to sale at a private entry,the law did not require that Pond should reside upon or cultivate it prior to making his warrant location. As to the second ground, I think it only necessary to say that as your office on March 20, 1866, allowed Mr. Pond the privilege of substituting a legal consideration in lieu of the canceled warrant, and as this privilege was not limited in time, the entry although voidable, was capable of being legally perfected at the time the grant to the road took effect, and the land did not inure to the grant, nor was Pond required by law to live on the land after entry. As to the third ground, I am of opinion that as the land was covered by a voidable uncanceled entry it was not legally vacant, and the application for a rehearing is refused. This entry should be canceled unless perfccted by Mr. Pond, without unreasonable delay after notice. The papers transmitted with your letter of April 5, 1877, are herewith returned. Very respectfully, -Copp's Land Owner for February. C. SCHURZ, Secretary. JUCICIAL DECISIONS UNDER THE HOMESTEAD LAW. Furnished by J. Vance Lewis. Esq., attorney-at-law, Washington, D. C., and taken from the manuscript of his forthcoming work on "Judicial Public Land Decisions." "If a settler on public land give a mortage on the land, and then enter the land as a homestead, the mortgage may be enforced. By the Court: "Had the deed been an absolute conveyance in fee instead of a mortgage in fee, any subsequently acquired title, under our statue concerning conveyances would have enured to the benefit of the plaintiff. (Sec. 33.) "The fact that the title subsequentiy comes from the United States would make no difference. act. The "There is nothing in the Homestead Act of 1862 forbidding voluntary alienation by the grantee under that same principle applies to a' mortgage of the fee. Baker, 14 Cal. 630.) (Clark vs Action brought in the District Court of the Twelfth Judicial District of the State of California, in and for the city and county of San Francisco, and the complaint filed in said city and county of San Francisco, in the office of the Clerk of said District Court. The People of the State of California send greeting to HENRY VOGEL, defendant: You are hereby required to appear in an action brought against you by the above-named plaintiff, in the District Court of the Twelfth Judicial District of the State of California, in and for the city and county of San Francisco, and to answer the complaint filed therein, within ten days (exclusive of the day of service) after the service on you of this summons, if served within this county; or, if served out of this county, but in this district, within twenty days; otherwise within forty days, or judgment by default will be taken against you according to the prayer of said complaint. The said action is brought to obtain a decree of this court, dissolving the bonds of matrimony now existing between plaintiff and defendant, upon the grounds stated in the complaint filed herein, to which reference is hereby made, and awarding to plaintiff the property described in the complaint; also, permitting plaintiff to assume her former name of Sophie Nobmann, and for general relief. And you are hereby notified that if you fail to appear and answer the said complaint, as above required, the said plaintiff will apply to the court for the relief therein demanded. Given under my hand and the seal of the District Court of the Twelfth Judicial District of the State of California, in and for the city of San Francisco, this 20th day of April, in the year of our Lord, one thousand eight hundred and seventy-eight. [L. S.] THOS. H. REYNOLDS, Clerk. apr20w9 By J. D. RUGGLES, Deputy Clerk. C. G. Howard, attorney for plaintiff. In the Justices' Court of the City and County of San Francisco, Northeast corner of Montgomery and Jackson streets. C. G. HOWARD, vs. Plaintiff, No.30909, Summons Action brought in the Justices Court of the City and County of San Francisco, and complaint filed in the FANNY ROBINSON, Defendant. office of the Clerk of said Court. The People of the State of California, to FANNY ROBINSON, greeting: You are hereby required to appear in an action brought against you by the above named plaintiff in the Justices' Court of the City and County of San Francisco, and to answer the complaint filed therein, within three days (exclusive of the day of service) after the service on you of this summons. The said action is brought to recover twenty-five ($25) dollars for legal counsel, advice and services rendered as per complaint filed herein, to which reference is made. And you are hereby notified, that if you fail to appear and answer to said complaint as above required, the said plaintiff will take judgment against you for said amount, to wit: twenty-five ($25 dollars,) together with costs and damages. This action has been assigned, and you are required to appear for trial before F. A.Sawyer, Esq., one of the Justices of said Court. To the Sheriff of the City and County of San Francisco, greeting: Make legal service and due return hereon. Given under my hand this 8th day of February, 1878, By order of F. A. Sawyer, Presiding Justice of the Peace of the City and County of San Francisco. ap20 9w GEO. O. WEDEKIND, Clerk of said Court. By C. W. Childs, Deputy Clerk. C. G. Howard, attorney for plaintiff. In the District Court of the Twelfth Judicial District VS. JUAN BAPTISTA MORCHIO, Deft. S No.21689, Summons. Action brought in the District Court of the Twelfth Judicial District of the State of California, in and for the city and county of San Francisco, and the complaint filed in said city and county of San Francisco, in the office of the Clerk of said District Court. The People of the State of California send Greeting to JUAN BAPTISA MORCHIO, Defendant: You are hereby required to appear in an action brought against you by the above-named plaintiff in the District Court of the Twelfth Judicial District of the State of California, in and for the city and county of San Francisco, and to answer the complaint filed therein within ten days (exclusive of the day of service) after the service on you of this summons, if served within this county; or, if served out of this county, but in this district, within twenty days; otherwise within forty days--or judgment by default will be taken against you, according to the prayer of said complaint. The said action is brought to obtain a decree of this Court dissolving the bonds of matrimony now existing between plaintiff and defendant upon the grounds stated in the complaint filed herein, to which reference is hereby made, and awarding to plaintiff the household furniture mentioned in said complaint; also for general relief. And you are hereby notified that if you fail to appear and answer the said complaint, as above required, the said plaintiff will apply to the Court for the relief therein demanded. Given under my hand and seal of the District Court of the Twelfth Judicial District of the State of California, in and for the city and county of San Francisco, this 20th day of April, in the year of our Lord one thousand eight hundred and seventy-eight. [L. S.] apr20w9 THOS. H. REYNOLDS, Clerk. By J. D. RUGGLES, Deputy Clerk. C. G. Howard, attorney for plaintiff. Record Brevities. THE CALIFORNIA LEGAL RECORD, published by F. A. Scofield at 603 Washington street, San Francisco, should be in the library of every lawyer who wishes to keep abreast of the decisions of our courts. Its excellence increases with its age. There is no verbiage about it. Its statements of facts are clear and concise, and beside giving the decisions of the courts of our own state it gives also the most important decisions of the courts of last resort in other states and current land decisions of the department of the interior. Last week's number contains the rules of the California Supreme Court as amended by the judges on the 29th ult. Lawyers should not be without the LEGAL RECORD, and some of our Watsonville soreheads might profitably study its pages and possibly learn how much journalistic castigation they would have to staud before they would have a legal right to punch the head of the editor of the Transcript. Bro. Scofield, when you come down this way drop in and see us.— -Watsonville Transcript. RULES OF THE SUPREME COURT OF THE of dismissal shall be forthwith issued, as pro No motion for a rehearing shall be permitted in cases in which the remittitur shall have been ordered to be issued. All motions for rehearing shall be upon petition, which, in civil cases, shall be printed. The petition must be filed within twenty-five days after the judgment has been rendered. The time herein prescribed shall not be extended by the Court, and the Clerk shall not file a petition after such time has expired. The petition shall operate as a stay of proceedings until it has beeu determined. When it appears that a petition has been filed for delay only, or is frivolous, the Court may impose such costs and damages as may be deemed proper. RULE XXI. When causes are placed upon the calendar, parties shall be primarily liable for costs, as first be liable; second -If by the responfollows: First-If by the appellant, he shall dent, or by consent, then both parties. In civil cases the Clerk shall not be required to remit the final papers until the costs are paid. In all cases in which the judgmenet or order appealed from is reversed or modified, contains no direction as to costs of appeal, and the order of reversal or modification the Clerk will enter upon the record and insert in the remittitur a judgment that the appellants recover the costs of the appeal. RULE XXVII. All causes regularly on the calendar may be brought to a hearing by either party, when called in their order, on the day for which they are set, or as soon thereafter as No remittitur shall issue until after the they may be reached in the regular call, expiration of twenty-five days from the without further notice than is contained in entry of judgment or order unless up- the apportionment of the calendar by the on the order of the Court, or of three of Clerk. When the appellant has failed to the Justices; provided that when an ap-file the transcript, as provided by Rule 2, peal is dismissed for any cause, the remittitur in case the transcript shall have been filed in this Court, shall issue forthwith, unless stayed by an order of Court or of three Justices therof; and in case no transcript shall have been filed then a certificate and the cause is put on the calendar on the motion of the respondent, the appeal will be dismissed, or judgment affirmed, in the discretion of the Court, on motion of respondent. (To be continued next week.) |