Atkins v. Faulkner , 11 Iowa 326 ( 1860 )

Wright, J.

It will be observed that complainant relies upon an entry made by the location of a military land warrant. Respondent defends upon his pre-emption, based, according to the proof, upon improvements made -or commenced in July prior to complainant’s entry. This right of the respondent is attempted to be impeached upon the ground that the improvements were made and the pre-emption proved up for the benefit of one Booth; that it is therefore void under the laws of the United States, and should be set aside in favor of complainant’s superior equity and better title. To this it is responded that no such agreement is shown, or if shown, that while it might be a fraud upon the United States and render respondent liable to the government, complainant cannot take advantage of it, and especially so as he made his entry subsequent to the time the improvements were made by respondent.

We have had much difficulty in arriving at a satisfactory conclusion in this case. And this difficulty has resulted for the most part, from the character of the bill, the state of the pleadings, and the nature of the evidence adduced. Had respondent answered in denial we should have had no hesitation in saying that the proof was entirely insufficient. He did not however, and we are to treat the bill as confessed. So regarding it, all distinct and positive averments are to be taken as true. If however the allegations are indefinite, or the complainants demand is uncertain, the requisite certainty must be afforded by the proof. (3 Iowa 557, and cases cited.) Assuming then that the material averments are sufficiently distinct and positive, we inquire whether the evidence taken by complainant and found in the record, does not, under all the circumstances in effect destroy the case made in the bill. And after the most careful investigation we are compelled to conclude that it does Add to this the further view entertained by us, that there is no inconsiderable want of certainty and definiteness in the allegations of the bill, that it fails to point out the character of the alleged agreement between respondent and Booth, that it contains nothing more than a general charge of fraud, that it is quite unartificially drawn, and we feel the more justified in holding that the decree below was erroneous.

Complainant’s purchase was made subject to the right of the respondent or any other pre-emptor. Respondent did, upon the strength of improvements made prior to complainant’s entry, prove up his pre-emption in duo and proper form, to the satisfaction of those officers whose duty it was to hear and adjudicate upon his claim. To do this he presented his own oath, together with that of at least one other witness. Unless the title which he thus acquired is sufficiently impeached, it must prevail over that of complainant. And the proof instead of showing a fraudulent and illegal agreement between the pre-emptor and Booth;, falls very far short of it. It consists of loose and random conversations ; which taken altogether negative the idea of any such contract. It is entirely insufficient, under such a bill, to justify our interference with the legititaate action of the officers' of the government. A court ought not upon a case so barren to divest a party of his title to real property.

We have entertained doubt, whether treating the averments in the bill as sufficiently distinct and positive, we should interfere with the decree, if the testimony produced the conviction that it was erroneous. When we consider however, that the cause is here for hearing de novo; that upon the whole record we are to determine whether the complainant is entitled to the relief asked, we have felt justified, after giving due right to the fact that respondent failed to answer, in concluding that the bill should be dismissed.-

Decree reversed.