Moelle v. Sherwood
In Equity. Suit by James K. O. Sherwood against Theodore J. Moelle to quiet title to certain real estate. Upon the original hearing the bill was dismissed, but at the following term of court a rehearing was granted, and thereafter a decree was rendered in favor of complainant, quieting his title. 36 Fed. Rep. 478. Defendant appeals. Affirmed.

Statement by Mr. Justice FIELD:

This is a suit in equity, commenced in June, 1885, in the circuit court of the United States for the District of Nebraska, to quiet the title of the complainant to certain real property described in the bill as the S. E. 1/4 of section No. 31, township No. 3 N., of range 8 E., of the sixth P. M., in Nuckolls county, state of Nebraska, to which the defendant, a citizen of that state, claims some adverse interest and title. The bill alleges that the complainant is a citizen of New York, and that at the commencement of the suit, and for a long time prior thereto, he was the owner in fee simple, and entitled to the possession, of the described premises. His chain of title is as follows:

(1) A patent of the land in controversy, and of other land, from the United States, dated November 1, 1871, issued to George L. Bittinger, and recorded in Nuckolls county, December 31, 1883.

(2) A deed bearing date on the 22d of August, 1882, executed by Bittinger and his wife to L. P. Dosh, of Scott county, Iowa, reciting a consideration of $100, by which they sold, conveyed, and quitclaimed all their 'right, title, and interest in and to' the premises in controversy. This deed was recorded September 19, 1882.

(3) A warranty deed, dated October 27, 1882, of the premises, by L. P. Dosh and his wife to J. R. Dosh, of Guthrie county, Iowa, reciting a consideration of $1,513. This deed was recorded November 20, 1882.

(4) A warranty deed of the premises, dated June 30, 1883, by J. R. Dosh and his wife to the complainant, James K. O. Sherwood, reciting a consideration of $1,800. This deed was recorded April 24, 1885.

The bill alleges that the complainant purchased the premises in question,-that is, the southeast quarter of section 31 of the township named,-at their full value, in the regular course of business, but that the defendant claims that, by some secret and unrecorded deed from Bittinger, he has acquired a superior title to the premises, which claim so affects the title of the complainant as to render its sale or disposition impossible, and disturbs him in his right of possession, but of the nature of the claim, except as above stated, he is ignorant. He therefore prays that the defendant may disclose the nature of his estate, interest, and claim in the premises, that the title of the complainant therein may be quieted, and that the defendant may be decreed to have no estate or interest therein, and be enjoined from asserting any.

The defendant, in his answer, denies that the complainant has any estate in or title to the premises, and sets up that on the 23d day of June, 1870, George L. Bittinger, the patentee of the United States, and his wife, by a warranty deed, conveyed the premises for a valuable consideration to one Guthrie Probyne; that such deed was recorded August 20, 1883; that on the 24th day of August, 1883, Probyne and wife, for a valuable consideration, by a warranty deed, conveyed the premises to the defendant; and that the same was recorded August 28, 1883.

The defendant also, by leave of the court, filed a cross bill in which he alleges that at the commencement of the suit, and a long time prior thereto, he was the owner in fee simple and in possession of the premises in controversy, and that his ownership of the estate rests upon the following muniments of title, namely, the patent mentioned from the United States of the described premises to Bittinger, dated November 1, 1871; the warranty deed of the premises by Bittinger and wife to Guthrie Probyne, dated June 23, 1870, and the warranty deed of Probyne and wife to the defendant, Theodore J. Moelle. The cross bill also refers to an alleged tax deed of the premises by the treasurer of Nuckolls county, Neb., to one Ferdinand Faust, and a quitclaim from him to L. P. Dosh; but no notice is taken of the tax deed, as it is conceded to be invalid. The prayer in the cross bill is that the title of the complainant, the defendant in the original bill, may be adjudged perfect and valid.

The answer to the cross bill sets up the various conveyances under which the complainant in the original suit claimed title to the premises, and, while admitting that the alleged deed to Probyne from Bittinger and wife, dated June 23, 1870, of the land in controversy, was placed on record August 20, 1883, it charges that no such deed of the premises was ever signed, acknowledged, or delivered by the grantors named, but avers that the deed signed, acknowledged, and delivered by them to him on the day designated conveyed different property from the premises embraced in the deed, recorded August 20, 1883, being part of a different quarter section of the township, viz. the southwest quarter of section 32, and not the southeast quarter of section 31, and was recorded June 3, 1871, with this different description. It alleges that subsequent to the record the deed was changed so as to read, 'the southeast quarter of section thirty-one,' instead of the southwest quarter of section 32, and in such changed condition was recorded August 20, 1883.

The depositions taken in the case established the alteration made in the deed to Probyne as set forth in the answer to the cross bill. It is to be observed, also, that the date of the execution of the alleged deed to him by the patentee is more than a year prior to the issue of the patent. The testimony of the complainant, Sherwood, was taken in the case, and was to the effect that, before purchasing the property, he examined an abstract of title to it, and found a regular chain of conveyances from the United States to J. R. Dosh; that he also found, from the records of certain tax sales, a regular chain of conveyances from the grantee of the tax deed to the same party; that no other instrument affecting the title appeared of record; and that he was satisfied that the title was perfect. He then had the land examined, and it was reported to him to be a fair quantity of wild prairie, lying vacant and unoccupied, and never had been occupied, and he paid $1,800 cash for the property. In answer to a question, he stated that, at the time, he believed he was getting a good title, and had no idea that any such controversy as now exists would arise. The land was unoccupied, the price of the land a reasonable one, and he believed that he was getting a valuable piece of property, with a perfect title, for a fair consideration.

The case was heard at the January term of the circuit court, 1888, and on the 9th of March, which was in the same term, a decree was rendered, dismissing the bill. At the following term of the court, on the 18th of May, the complainant made a motion for leave to file a petition for a rehearing, representing to the court that at the hearing of the cause, and when the decree was rendered, it was believed by him that the property in controversy was of sufficient value to give jurisdiction to the supreme court of the United States, and that an appeal would lie from the decree, but that since then he had become assured that no appeal would lie, by reason of the fact that the premises in dispute were in value less than $5,000. The petition was accompanied by the affidavit of one of the solicitors of the complainant that the allegations were made after careful investigation, and believed to be true. On the 29th of October, which was during the May term, the cause was submitted with the petition for a rehearing, and both were decided on the same day, and a decree rendered in favor of the complainant, quieting his title as prayed. 36 Fed. Rep. 478. From that decree the present appeal is taken.

N. S. Harwood and J. H. Ames for appellant.

C. S. Montgomery, for appellee.

Mr. Justice FIELD, after stating the facts in the foregoing language, delivered the opinion of the court. 

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