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selections, are subject to be disposed 435 of by the United States or to be settled upon or occupied under the pre-emption and homestead laws of the United States; and,

"That the Secretary of the Interior has no authority to withdraw from the sale or settlement lands that are within indemnity limits which have not been previously selected, with his approval, to supply deficiencies within the place limits of the company's road": Page 565.

A critical examination of the cases which are said to maintain a contrary rule will show that they were cases arising under grants which directly authorized a withdrawal, or between original and subsequent grantees claiming the same lands, and in the latter cases the question was what was to be understood by the term "public lands," as used in the subsequent grant-that is, whether it was exclusive of lands covered by a former grant not yet earned. It happened in many cases that the lands covered by a prior grant had been withdrawn by the Secretary of the Interior, but this was not the controlling feature of the decisions. The holdings generally have been that the term "public lands," as used in the subsequent grant, excluded lands included within prior grants.

The case of Wolsey v. Chapman, 101 U. S. 755, 25 L. ed. 915, cited by plaintiffs, belongs to the first class. There the controversy arose over a general land grant made to the state of Iowa of five hundred thousand acres of land for internal improvements, dated September 4, 1841. These lands were to be selected from any public lands, "except such as is or may be reserved from sale by . . . . proclamation of the President of the United States": 5 U. S. Stats. at Large, 455. April 6, 1850, the Secretary of the Interior directed that certain lands in the state of Iowa be reserved from sale in order to settle the rights of rival claimants thereto. On July 20, 1850, the agent of the state of Iowa, having in charge the school lands and school fund, gave notice at the general land office that he had selected a portion of lands thus withdrawn as a part of the five hundred thousand 436 acre grant under act of 1841. It was held that the order of withdrawal was authorized by the grant and all lands which had at the time been reserved and all that might thereafter be reserved by the proclamation, of the President were excepted from the grant. It was also held that the order of withdrawal issued by the Secretary of the Interior must be held to have been by proc

lamation of the President and was the withdrawal provided for in the grant.

The case of Northern Lumber Co. v. O'Brien, 139 Fed. 614, 71 C. C. A. 598, also relied upon by plaintiffs, does not involve the question we are called upon to decide. It does, however, recognize the rule as here stated. In distinguishing the question presented to it from the one in Nelson v. Northern Pacific Ry., 188 U. S. 108, 23 Sup. Ct. Rep. 302, 47 L. ed. 406, and other similar cases, the court said: "None of these cases has particular reference to or makes the decision turn upon the clause 'there be, and hereby is, granted . . . . every alternate section of public land,' which makes the grant one in praesenti of land then public, but instead each has particular reference to and makes the decision turn upon the limitation on the granting clause, which makes it also requisite that 'the United States have full title, not reserved, sold, granted or otherwise appropriated, and free from pre-emption, or other claims or rights at the time the line of said road is definitely fixed.' They all recognize the well-established rule, that the grantee under a railroad land grant acquires, by designating the general route of its road, only an inchoate right to the odd-numbered sections granted by Congress, and that until the definite location of the road these sections remain within the disposing power of Congress, and this, even though they be withdrawn for the protection of the grant, as in the present case": Page 620.

The well-established rule, therefore, is that where lands are granted to a railroad, with certain reservations, for purposes designated in the grant, in the absence of express authority the Secretary of the Interior or the land commissioner is powerless to make any order with reference thereto which will have the effect to defeat 437 the reservations. Congress has exclusive authority to dispose of the public domain, and in the absence of its adoption of any specific rule for carrying out its purpose the land department may adopt such rules and regulations as to it may seem proper for that purpose; but in the absence of express authority that department is powerless to adopt a procedure which will defeat the expressed intention of Congress in the disposition of the public domain. Congress, in the grant in question, expressly reserved from its operation all lands sold or reserved by the United States or to which the right of pre-emption or homestead settlement attached when the line of railroad or its branches should be

definitely fixed. The lands falling within these reservations were not granted to the railroad companies, and the land commissioner had no authority by any act to deprive those for whose benefit the reservations were made of the privilege of exercising that right. The judgment is affirmed.

All the justices concurring.

Judgments bind only parties and privies: Cope v. Payne, 111 Tenn. 128, 102 Am. St. Rep. 746; Gouwens v. Gouwens, 222 III. 223, 113 Am. St. Rep. 395; Nickum v. Burckhardt, 30 Or. 464, 60 Am. St. Rep. 822; Fuller v. Metropolitan Life Ins. Co., 68 Conn. 55, 57 Am. St. Rep. 84. The term "parties" includes those who are directly interested in the subject matter of the suit, knew of its pendency, and had the right to control and direct or defend it: Courtney v. William Knabe etc. Co., 97 Md. 499, 99 Am. St. Rep. 456. The question as to who are parties within the rule of res judicata is further considered in the note to Hill v. Bain, 2 Am. St. Rep. 876.


[74 Kan. 456, 87 Pac. 551.]

VENDOR AND PURCHASER-Notice of Existing Liens.-A purchaser of land, in the absence of fraud, takes the title thereto subject to all liens which are properly of record, and also subject to all other liens of which he has actual notice. (p. 333.)

SUBROGATION-Payment of Mortgage-Notice of Judgment Lien. A purchaser of land with knowledge that three mortgages and two judgments are then subsisting liens thereon, who assumes and agrees to pay the mortgage debts, but ignores the judgment liens, is not entitled, having paid one mortgage, to be substituted to the position of the holder of the mortgage paid, and to have that mortgage considered unpaid when an attempt is made to sell the land on execution to satisfy the judgments. (p. 334.)

SUBROGATION-Purchaser-Payment of Liens.-An independent purchaser of land encumbered with liens, who has no interest to protect therein, and no other equitable claim, cannot assume the payment and pay such lien or liens as he may choose, and claim subrogation as against all inferior liens. (p. 335.)

Hursh & Walton and J. D. Myers, for the plaintiff in error.

Hayden & Hayden, for the defendants in error.

457 SMITH, J. The plaintiff in error, having at the time no interest whatever in or lien upon the land, purchased a tract of land which was encumbered by three mortgages. At

the time of the purchase, and for some time prior thereto, abstracts of two judgments rendered by a justice of the peace against Kuhn's grantor and in favor of the National Bank of Holton had been on file in the district court of Jackson county, in which county the land was located, and such judgments were liens upon the land in question. By his contract of purchase Kuhn assumed and agreed to pay the mortgages against the land and all unpaid taxes thereon. He paid one of the mortgages, procuring the money therefor principally by a loan which he secured by executing a new mortgage on the land. Subsequently Kuhn paid the mortgage given by him to secure the loan, leaving only the two mortgages which he had assumed to pay and the two judgments as liens upon the land.

Thereafter the National Bank of Holton, the owner of the two judgments, caused execution to be issued thereon, and the sheriff of Jackson county, not finding goods or chattels of the judgment debtor to satisfy the executions, levied the same upon the land in question and advertised it for sale, subject only to the two unpaid mortgages. Thereupon Kuhn brought this suit in the district court of Jackson county to enjoin the bank and the sheriff from proceeding with the sale. A temporary injunction was granted during the pendency of the suit, and in due time a trial was had before the court and the temporary injunction was dissolved, a permanent injunction was refused, and judgment was rendered against the plaintiff. He brings the case here for review.

458 Two objections to the action of the court in this case are presented: 1. The exclusion of evidence offered to show that the plaintiff had no actual knowledge of the existence of the judgments or judgment liens on the land at the time he purchased it; 2. That, upon the facts, not the defendants but the plaintiff was entitled to judgment.

If, as it has uniformly been decided, a purchaser of either real or personal property is bound to take notice of the facts affecting the title to property which the records of the county show, and which records the statutes provide shall be public notice, then it is quite immaterial whether or not Kuhn had actual knowledge of the existence of the judgments. In the absence of conduct on the part of the person who afterward asserts the facts shown by the records to the prejudice of the purchaser which prevents an examination of the records or induces the purchaser not to make such examination, it

is negligence for a purchaser of either real or personal property to make the purchase without ascertaining the facts shown by the records which may affect the title to be acquired. In the absence of such fraudulent conduct the purchaser will be presumed to have bought with knowledge of all the facts which the records at the time would have disclosed. Equity cannot be invoked to relieve one from the consequences of his own negligence: Hargis v. Robinson, 63 Kan. 686, 66 Pac. 988.

If, then, as is to be presumed, Kuhn bought the land with knowledge that the three mortgages and two judgments were subsisting liens thereon, and assumed and agreed to pay the mortgage debts but ignored the judgment liens, is he entitled, having paid one mortgage, 459 to be substituted to the position of the holder of the mortgage paid and to have the mortgage considered unpaid when an attempt is made to sell the land on execution to satisfy the judgments? If so, having paid the senior mortgage lien, could he not, in a suit to foreclose the second mortgage, claim subrogation as to the first? Or, having paid the first and second, could he not claim subrogation as to both, in a suit to foreclose the third? Sufficient answer it is to say that the equitable relief of subrogation was not designed to aid speculation nor to relieve litigants from the consequences of their own negligence, ignorance or mistakes of judgment: Hargis v. Robinson, 63 Kan. 686, 66 Pac. 988. This equitable relief originated in the evident justice of substituting a surety who has been compelled to pay the debt of his principal to the place of the creditor as against other creditors affected by the transaction. It has on principle been extended to the relief of junior lienholders who, to protect their own interests, have been compelled to pay off prior liens, and to other cases where natural justice required its application and where no violence was done to legal rights of others.

It is urged in behalf of plaintiff that at the time he bought the land in question it was of no greater value than the amount of the three mortgages and taxes due thereon. We are not cited to any evidence and have scanned the record in vain to find evidence in support of this assertion. Whether the land was worth more or less than the debts assumed, which constituted the only consideration for the purchase, is probably immaterial. At the time Kuhn made the purchase he had no interest in the land to protect. At

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