Malone v. Hoxsie ( 1901 )

WTCKERSHAM, District Judge

(after stating the facts as above). The fact is undisputed that Hoxsie entered into the possession of this lot in 1899, and continued in the sole use .and occupation thereof up to the time of the sale of that portion now in dispute to Pope. It is beyond question that at the time of the purchase from Pope the plaintiffs knew of Hoxsie’s interest in the property, and knew that he had sold it to Pope, and held a mortgage to secure the payment of the sum of $5,000 upon the purchase price thereof. It is admitted that Hoxsie offered to accept his money from them, and continue them in the use and occupation of the property upon the •payment of the money due from Pope, which they refused. They then first set up a claim as original occupiers under the United States land laws. Their action is void of equity or law to support it. By virtue of his use and occupancy Hox-sie came into possession of the lot, and the plaintiffs entered upon it, not $b original settlers, but by virtue of a lease or option to purchase from Pope, and they ought not to be heard to deny the title through which they gained possession of it. A court of equity will not assist them in maintaining a possession so gained, by enjoining the marshal from making the deed in the foreclosure proceeding against Pope. The plaintiffs assume the position that, under the facts in this case, the defendant could not have foreclosed his mortgage against the plaintiffs. It would be immaterial, under their theory, whether he could or not. They have now assumed the position of original occupants, and repudiated everything in connection with the title except their own possession under the paramount proprietor, the United States. They must either stand upon that foundation or fail, and the other question is immaterial. They argue, too, that the defendant Hoxsie cannot enforce his foreclosure proceedings. The answer to that argument is that they are claiming under their rights as original occupants under the United States, and they must stand upon that foundation or fail. If they are original occupants, and have the exclusive right of possession, subject only to the paramount ownership of the government, it follows that no foreclosure or other proceedings will have any validity against them. Such is not their position, however. They are not, and never were, original occupants of this property. They entered as tenants under Pope with an option to purchase, which, they repudiated. They ought not to be heard, and this court will not assist them, to deny the •title of the party who let them into possession of the property. They must either pay the purchase price of the property or surrender it to the owner.

Findings of fact, conclusions of law, and a decree in conformity with this view may be entered for the defendant.