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CORNELIUS v. KESSEL.

decided: November 19, 1888.

CORNELIUS
v.
KESSEL.



ERROR TO THE SUPREME COURT OF THE STATE OF WISCONSIN.

Author: Field

[ 128 U.S. Page 457]

 MR. JUSTICE FIELD delivered the opinion of the court.

This case comes to us from the Supreme Court of Wisconsin. It is an action for the possession of forty acres of land, being part of a quarter section in Township 16 of Range 20, in the county of Sheboygan, in that State, and was brought in the Circuit Court of that county. The complaint alleges that the plaintiff has the lawful title as the owner in fee simple, and the right to the possession of the demanded premises; and that the defendant wrongfully withholds them from him to his damage of three hundred dollars. It therefore prays that the defendant may be adjudged to surrender to the plaintiff their possession and to pay the said damages.

In support of his alleged title the plaintiff relies on a patent

[ 128 U.S. Page 458]

     of the United States for a tract embracing the demanded premises, issued to one Myron H. Puffer on the 4th of June, 1877, upon a homestead entry made by him in December of the previous year, and sundry mesne conveyances from the patentee.

The answer of the defendant admits that she was in possession of the premises at the commencement of the action, but denies generally and specifically the other allegations of the complaint, and pleads in bar of the action an entry upon the premises by her, and those through whom she derives her interest, under claim of title, exclusive of any other right, founded upon a written instrument as a conveyance thereof, and their occupation under such claim for more than ten years prior to the commencement of the action.

The answer also sets forth, under a separate heading or count, by way of counter-claim, various matters which the defendant claims constitute in equity a defence to the action and entitle her to a decree that she has a right to the title and possession of the premises. Those matters, briefly stated, are substantially as follows: In January, 1856, one Henry I. Davidson entered two tracts of land in Township 16 of Range 20, in Sheboygan County, one of which constitutes the premises in controversy, as public lands of the United States subject to entry, paid the full purchase price to the receiver of the land office for the district, and obtained from him the usual duplicate receipt therefor, which was duly recorded in the office of register of deeds of the county in April, 1857. Subsequently Davidson and his wife conveyed the tract in controversy to one Joseph Hein, and from him, through sundry mesne conveyances, all of which are on record in the register's office of the county, the property, in October, 1869, became vested in Jacob Kessel, the husband of the defendant. Kessel died in July, 1876, in possession of and thus owning the premises, leaving the defendant, as his widow, and four children surviving him. By his last will and testament, which has been admitted to probate, he devised to the defendant a life estate in the premises in controversy, and she is now in possession, halding the same thereunder, the fee thereof being in the

[ 128 U.S. Page 459]

     children, subject to her life estate. And she alleges that, from the time of the entry by Davidson down to the death of Kessel, there was an uninterrupted possession and claim of title by Kessel and his predecessors, and that valuable improvements were made thereunder, without their knowledge of any adverse claim or of the assertion of interest of any kind.

In October, 1857, an order was made by the Commissioner of the General Land Office, canceling the entry of Davidson for the two tracts of land, on the alleged ground that one of them, not the tract embracing the premises in controversy, was included in a prior grant to the State, and therefore was not subject to entry. The order of cancellation was made without previous notice of any kind to Davidson or any party in interest under the entry, and the purchase money paid was never returned or offered to him or to any of his successors in interest; and the defendant contends that the order was erroneously and improperly made. The Commissioner of the General Land Office afterwards came to the same conclusion, and in June, 1879, he directed the entry to be reinstated as to the tract which had not been previously granted to the State; that is, the tract in controversy in this case. It was between the cancellation and the reinstatement of the entry as to this tract that the homestead entry was made by Myron H. Puffer, and the patent issued to him.

The answer also imputes fraudulent conduct to the register or receiver of the land office of the district, alleging, on information and belief, that the entry of Puffer was made in his interest, but it is not deemed necessary to repeat the imputations. It concludes with a prayer that the title to the premises may be adjudged to have been in Jacob Kessel at the time of his death, and that the defendant is entitled to the possession thereof, or that such other and further relief be granted as may be just.

The practice of setting up in actions at law defences, whether of a legal or equitable character, is permissible under the laws of Wisconsin. They are required, however, to be separately stated that they may be considered on their distinctive merits, and ...


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