1. Under the act entitled "An Act concerning the practice in
territorial courts and appeals therefrom," approved April 7, 1874,
18 Stat. pt. 3, p. 27, the appellate jurisdiction of this Court
over the judgment or the decree rendered by a territorial court in
a case not tried by a jury can only be exercised by appeal.
2. Where the record of a suit is duly certified upon an appeal
to a district court in Utah and the latter states its findings of
fact and its conclusions of law separately, and appeals from its
order refusing a new trial and from its judgment are taken to the
supreme court of that territory, the statute whereof requires a
statement, to be settled by the judge who heard the cause,
specifically setting forth the "particular errors or grounds"
relied on, and containing "so much of the evidence as may be
necessary to explain them, and no more," and where a statement
settled and signed by him, and annexed to the copy of the order
refusing a new trial, contains all the testimony and written proofs
and allegations of the parties certified up to the district court,
upon which the trial was had, and it was stipulated that the
statement might be used on an appeal from the judgment to the said
supreme court,
held, 1. that the proceeding was thus made
to conform to the requirements of the Practice Act of Utah, and
that the latter court was called upon to decide whether the
evidence was sufficient to sustain the findings of fact, and, if it
was, whether they would support the judgment; 2. that if that court
reverses the judgment because the evidence does not sustain the
findings, other findings must be made before the case can be put in
a condition for hearing here, but if it has all the evidence which
could be considered below should the case be remanded, it may state
the facts established by the evidence and reader judgment; on an
appeal to this Court, the case, if otherwise properly here, will be
determined upon the facts so stated; 3. that if the findings of the
district court be sustained and its judgment affirmed, or if its
judgment be reversed for the reason that the findings are not
sufficient to support the judgment, such findings are in effect
adopted by the said supreme court, and they, for the purpose of an
appeal here, furnish a sufficient statement of the facts of the
case within the meaning of the act "concerning the practice in
territorial courts and appeals therefrom," approved April 7, 1874,
supra.
Page 99 U. S. 611
3. A., possessed of a lot in the City of Salt Lake, Utah, died
in 1857, leaving a widow and minor children. Under the Act of March
2, 1867, 14 Stat. 541, the mayor, Nov. 4, 1871, duly entered at the
proper land office the lands occupied as the site of the city and
received, June 1, 1872, a patent therefor, "in trust for the
several use and benefit of the occupants thereof according to their
respective interests." The legislature of the territory prescribed,
by a statute approved Feb. 17, 1889, rules and regulations for the
execution of such trusts, and provided that the several lots and
parcels within the limits of the lands so entered should be
conveyed to "the rightful owner of possession, occupant, or
occupants," or to such persons as might be entitled to the
occupancy or possession. Shortly after A.'s death, his widow
relinquished the possession of a part of the lot. She subsequently
conveyed another portion thereof, and removed with her children
therefrom. Another portion was sold by the administrator of A. to
pay taxes assessed and debts incurred by making improvements upon
the property after the latter's death. The purchaser paid full
value therefor, and has since Dec. 10, 1869, remained in the
exclusive possession thereof.
Held 1. that A. at the time
of his death had, by reason of his possession of the lot, an
inchoate right to the benefit of the act of Congress, should under
its provisions the lands be entered, and that his right to maintain
the possession as against the other inhabitants of the city
descended under the laws of Utah to his widow and children; 2. that
the withdrawal of the widow and children from parts of the lot, and
her voluntary surrender of all control over them, extinguished her
and their rights as to such parts; 3. that, under the territorial
statute, an occupant of a lot could sell and convey his possessory
rights therein before the lands were so entered; 4. that the
purchaser from the administrator is entitled to a conveyance from
the mayor; 5. that the widow and children of A. are entitled to a
deed from the mayor conveying to them, according to their
respective interests, that part of the lot whereof they were in
possession at the time the lands were entered.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
By the act of Congress "concerning the practice in territorial
courts and appeals therefrom," approved April 7, 1874, 18 Stat. pt.
3, p. 27, the appellate jurisdiction of this Court over the
judgments and decrees of the territorial courts in cases of trial
by jury is to be exercised by a writ of error, and in all
Page 99 U. S. 612
other cases by appeal. It follows that the appeal in this case
was properly taken, and that the writ of error must be
dismissed.
An important question arising under that part of the Civil
Practice Act of Utah which relates to appeals in a civil action
from the district court to the supreme court of the territory has
been elaborately discussed in the argument, but in the view we take
of the case, it need not be decided. This is a special statutory
proceeding, instituted in a probate court to settle disputes
between claimants as to their respective rights under the trust
created through the purchase, by the Mayor of Salt Lake City, of
the lands on which the city stands, pursuant to the authority for
that purpose granted by the Act of March 2, 1867, 14 Stat. 541,
"for the relief of the inhabitants of cities and towns upon the
public lands," and the several acts amendatory thereof. The
territorial statute under which this trust is to be carried into
execution (Comp.Laws Utah, 1876, 379) requires parties interested
to sign a statement in writing containing the particulars of their
claim and deliver it to the clerk of the probate court of the
county. If there are conflicting claimants, it is made the duty of
the probate judge to call them before him "and proceed to hear the
proof adduced and the allegations of the parties, and decide
according to the justice of the case." The statements filed stand
in the place of pleadings. The court is required to cause full
minutes of the testimony to be kept, which must be preserved with
the papers and entered on the record with the decision at length.
If either party is aggrieved by the decision, he may appeal to the
district court as in other cases, and upon the perfection of an
appeal, the probate court must
"cause the testimony and written proofs adduced, together with
the statements of the parties and the judgment of the court, to be
certified to the district court, to be there tried anew, without
pleadings, except as above provided."
This case was heard in the district court on the record
certified up in accordance with these requirements, and in giving
its decision the court stated its findings of fact and conclusions
of law separately. In this it followed the rule prescribed by the
Civil Practice Act of Utah, on a trial by the court of an
Page 99 U. S. 613
issue of fact in a civil action. After the decision had been
made, the present appellees moved for a new trial on the ground
that the evidence was not sufficient to support the findings. This
motion was denied, and appeals were thereupon taken to the
territorial supreme court both from the judgment and the order
refusing a new trial. Such appeals are allowed by the Practice Act.
When an appeal is taken to the supreme court of the territory, the
law requires a statement to be settled and signed by the judge who
heard the cause, which shall set forth "specifically the particular
errors or grounds" relied on, "and contain so much of the evidence
as may be necessary to explain the particular errors or grounds
specified, and no more." This statement is annexed to the copy of
the judgment roll or order appealed from and furnished to the
supreme court. Comp.Laws Utah, 1876, 493, 494.
The statement settled and signed in this case, annexed to the
copy of the order refusing a new trial appealed from, contained all
the "testimony, written proofs, and statements of the parties"
certified up from the probate court, and upon which the trial was
had, and it was stipulated that the statement on the appeal from
this order might be used, so far as applicable, on the appeal from
the judgment. Thus, the proceeding was made to conform to the
regulations of the Practice Act in reference to appeals in civil
actions, and the court was called upon to decide whether the
evidence was sufficient to sustain the findings of fact, and, if it
was, whether the facts as found would support the judgment. In
short, the supreme court of the territory was called upon to
determine whether, according to the justice of the case as shown by
the record, the judgment of the district court was right.
The act of April 7, 1874,
supra, provides that on
appeals to this Court from the territorial courts, in cases where
there has been no trial by jury, instead of the evidence at large,
a statement of the facts of the case in the nature of a special
verdict, and also the rulings of the court on the admission or
rejection of evidence when excepted to, shall be made and certified
by the court below and transmitted to this Court with the
transcript of the proceedings and judgment or decree. Under this
act, if the findings of the district court are sustained by
Page 99 U. S. 614
the supreme court and a general judgment of affirmance rendered,
the findings of the district court, thus approved by the supreme
court, will furnish a sufficient "statement of the facts of the
case" for the purposes of an appeal to this Court. The same will be
true if there is a reversal, for the reason that the facts as found
are not sufficient to support the judgment. But if, as in this
case, the judgment is reversed because the evidence does not
sustain the findings, other findings must be made before the case
can be put in a condition for hearing in this Court on appeal.
Without undertaking to decide what would be the proper practice in
an ordinary civil action when a judgment is reversed because a new
trial was refused in the district court, we are clearly of the
opinion that in a suit like this, where all the evidence is before
the supreme court that could be considered by the district court if
the case should be sent back, it is proper for the supreme court
itself to state the facts established by the evidence and render
the judgment which ought to have been rendered by the district
court. To remand the case for a new trial would be in substance
only to direct the district court to state the facts as found by
the supreme court and adjudge accordingly. This would make another
appeal to the supreme court necessary in order to put the case in a
situation for a review in this Court, the probabilities being that
on such an appeal, the supreme court would be called upon to do no
more than affirm its former judgment. There is no statute of the
territory which in express terms creates the necessity for such a
circuity of action, and we do not think the Practice Act, when
fairly interpreted, requires it. Upon a new trial, no new testimony
could be introduced. The district court could do no more than find
the facts which, in the opinion of the supreme court, should have
been found before, and the judgment which should follow from those
facts may just as well be settled by the supreme court on the first
appeal as on a second. We conclude, therefore, that the case is
properly here for decision upon the facts stated by the supreme
court, and this brings us to the inquiry whether, upon these facts,
the judgment appealed from was right.
The Act of March 2, 1867,
supra, provides that the
"land so settled and occupied" for a town site may be entered at
the
Page 99 U. S. 615
land office, "in trust for the several use and benefit of the
occupants thereof according to their respective interests," and
that the execution of the trust shall "be conducted under such
rules and regulations as may be prescribed by the legislative
authority of the state or territory." The Legislature of Utah
enacted that the lands so acquired in trust should be conveyed to
the "rightful owner of possession, occupant, or occupants," or to
such persons as might be entitled to the occupancy or possession.
Comp.Laws 381.
In
Cofield v.
McClelland, 16 Wall. 331, this Court decided that
the act of Congress created the trust in favor of those who at the
time the entry was made were occupants or entitled to the
occupancy.
In
Hussey v. Smith, supra, p.
99
U. S. 20, we held that a nonresident might, by purchase
from an occupant, acquire such a right to the occupancy as would
entitle him to a judgment for a conveyance under the trust. The
power of an occupant to sell and convey his possessory rights is
clearly recognized by the territorial statute.
It is expressly found that the appellees were not in the actual
possession of any part of the lot except that which was adjudged to
them by the district court when the entry was made by the corporate
authorities. Joseph Cain died in 1857, leaving his widow, Elizabeth
Cain, and two minor children, Elizabeth, now Mrs. Crimson, aged
nine years, and Joseph M., aged seven. He then occupied the whole
of the east half of the lot in question as his homestead. Soon
after his death, Brigham Young set up a claim to the north half of
the premises, and the widow, without recognizing his right,
submitted to his demand. Young afterwards assumed to control the
property, and transferred a part of it by deed to Jennings, who
went into possession, claiming the right of occupancy, and under
his occupation improvements were made by himself or his tenants.
Young was never himself an actual occupant, but it is found that
when the testimony was taken, the Cooperative Company was in
possession, paying him rent. It does not, however, distinctly
appear from the findings whether either Jennings or the company
were occupying the property when the entry was made at the land
office.
Page 99 U. S. 616
At some time after the death of Cain, his widow sold and
conveyed to Charles King all "her right of claim, interest, and
possession" in that part of the south half of the premises in
controversy which was claimed by Jennings and adjudged by the
district court to him. When the testimony was taken in the case,
the Cooperative Mercantile Company was in actual possession of this
part of the lot, paying rent to Jennings. It is not stated
definitely when this conveyance was made by Mrs. Cain or when the
tenants of Jennings went into possession, though it is found that
Jennings himself was never an actual occupant of the property.
On the 10th of December, 1869, the Stringfellow Brothers went
into the possession of that part of the premises claimed by them,
under a sale made by the administrators of Cain to pay taxes
assessed upon the property after his death and to pay debts
incurred for improvements also made after his death. They paid for
the property its full market value at the time, and were in the
actual occupation when the entry was made by the corporate
authorities at the land office. The children of Cain were not made
parties to the proceedings in the probate court to obtain an order
for the sale, but from the time the sale was made until the
statements were filed in the office of the clerk of the probate
court, neither they nor their mother had possession of the premises
which were sold.
Upon this state of facts, it is apparent that the real question
to be settled is whether the children of Cain retain the benefit of
their father's occupancy of that part of the lot in controversy not
in their actual possession when the townsite was entered at the
land office by the corporate authorities. All the interest their
father had in the lot when he died was an inchoate right to the
benefit of the townsite law in case the property should be
purchased from the United States by the corporate authorities under
the provisions of that law. All he could do was to maintain his
occupancy, and claim the statutory trust in his favor in case that
trust should be created. He held the position of one seeking to
acquire a title by a possession adverse to all the other
inhabitants of the town. His right to maintain this adverse
possession descended under the laws of Utah to his widow and
children. There can be no doubt that the possession
Page 99 U. S. 617
the children thus acquired, if continued, would have ripened
into a perfect title under the trust.
The infants could not bind themselves by contract to sell and
convey their possessory rights, but they might lose their rights by
a failure to keep possession. They need not maintain an actual
occupancy, but they must in some form retain control of the
property to the exclusion of an adverse entry. When Cain died, the
mother became the head of the family and by the laws of Utah the
natural guardian of the children. In this way she had by law the
control of their persons. If she remained in the possession of the
property, she necessarily did so for the benefit of her children
and herself in proportion to their respective interests in the
inheritance; but if she voluntarily withdrew from the property and
gave it up to others, the rights of the children as well as
herself, which depended upon keeping the possession, were gone. The
adverse possession commenced by the father might in this way be
abandoned.
Applying these principles to the facts as stated, we think it
clear that the rights which the children had as occupants on their
father's death were given up by their mother, except as to that
part of the lot they had in actual possession when the corporate
authorities purchased the land from the government. Soon after the
death of the father, the mother yielded up the possession of the
north half of the lot on the demand of Mr. Young, the leader of the
Mormon Church, to which she and her husband during his life
belonged. It matters not for the purposes of this inquiry whether
this was rightfully or wrongfully done. In point of fact, it was
done many years before the purchase from the government. After
that, Young assumed the control of the property so surrendered and
deeded some part of it away. Subsequently the mother sold and
conveyed to King that part of the south half which is now claimed
by Jennings. From the facts as stated it may fairly be presumed
that this was done to save or improve the remainder. Her husband
when he died owed no debts, and so far as appears had no
considerable amount of property except his possessory rights in
this lot. To raise the means to pay taxes which accrued after his
death, and to pay debts incurred for improvements
Page 99 U. S. 618
also made after his death, his administrators sold that part of
the south half now claimed by the Stringfellows, and received its
full value in money. When these several sales were made, the mother
withdrew with her children from the occupancy, and the
Stringfellows made an actual entry in December, 1869, which they
have kept up until the present time. If the mother was not
technically the guardian in socage of the children, she occupied
under the circumstances the place of such a guardian, and Mrs.
Crimson, who was then unmarried, must have been of full age when
the Stringfellows took their possession. We cannot see how there
could be an abandonment if this is not, and it seems clear to our
minds that it must have been made by the mother in an honest effort
on her part to save all she could of that which the father by his
original occupancy had endeavored to secure.
We are therefore of the opinion from the facts as they are
stated by the supreme court:
1. That the surrender of the north half of the lot by Mrs. Cain
on the demand of Young was such an abandonment of the possession as
deprived her and her children of the right to claim title to that
part of the lot without a subsequent entry, which is not shown.
2. That the conveyance by Mrs. Cain to King operated in the same
way in respect to that part of the south half of the lot embraced
in her deed to him.
3. That the administrator's sale had the same effect as to that
part of the lot bought by George and Samuel Stringfellow, or one of
them.
4. That George and Samuel Stringfellow are entitled to a
conveyance of that part of the lot described in the administrator's
deed, and claimed by them in their statement filed with the clerk
of the probate court.
5. That the appellees are entitled to a conveyance of all that
part of the south half of the premises not embraced in the deed of
Mrs. Cain to King and in that of the administrators to
Stringfellow, and no more.
The judgment of the supreme court of the territory will
therefore be reversed, and the cause remanded with
instructions:
1. To enter or cause to be entered in the proper court a
judgment
Page 99 U. S. 619
in favor of George Stringfellow and Samuel Stringfellow for that
part of the lot purchased by them at the administrator's sale.
2. To enter or cause to be entered a judgment in favor of the
appellees, according to their respective interests under their
inheritance from Joseph Cain, for that part of the south half of
the premises in controversy not sold to Stringfellows and King, and
dismissing their claim as to all the rest and residue of the
lot.
3. To rehear the case upon the evidence sent up from the
district court in respect to the claims of Jennings and Young as
against the corporate authorities of Salt Lake City, and decide
according to the justice of the case.
The appellees will pay the costs of this appeal.
Judgment reversed.
MR. JUSTICE STRONG and MR. JUSTICE BRADLEY did not sit in this
case nor take any part in deciding it.