The Cheyenne daily leader. [volume] (Cheyenne, Wyo.) 1870-1884, 1880-01-29

FTatCG Cnar
In the case of Mary Z. Boughton vs..
Charles Hecht, Judge Peck delivered
the following opinion on the 26th in
slant:
This is al action of ejectment for
lots No. l and 2, in block No. 353, of
Cheyenne, and for the rents. The
plaintiffs evidence tends to show, and
unimpeached, does show, that Martin
V. Boughton occupied the premises
continuously in his W right for ever
al years prior and down to his execut-
ing to her a deed in fee of the premises,
dated February 10th, 1871; that she
then took and continued in possession
in her own right, first through her
grantor and next through one Smith,
until she vas ousted by the defendant
in April, 1877; and that the United
States by a patent of 1875 conveyed the
same premises to the Union Pacific
Railroad company. Upon this state of
the evidence, the defendant claims
that the plaintiff has shown title out
Of her g%rantor, and out of herself as
his successor in interest. ard therefore
that she has nothing to recover upon.
Now, allowing that the proof of the
patent does show title ont Of her grant
or, and, so far AS she relies upoii his
title, therefore out of herself, the proof
of the patent only cuts down her title
to the date OF the patent, leaving her to
stand upon adversary title in herself
by possession, which was continuous
from that date to tho custer. This
gives to her title enough to recover upon
unless the defendant has shown q bet
ter. It cuts off his claim of superior
title under the sheriff's deed to him of
April Dist, 1877, executed on n sale by
execution upon a judgment against N.
| V. Boughton, which sale was made of
the premises rs belonging to the latter.
1t cuts off the defendants claim to SUI
perior title under a tax deed to him
the Both of Dec, 1873, upon a sale of
the premises for delinquent taxes as
sessed against NJ. v. B~oughton as the
owner of the premises. 1t cuts off the
tax title, provided the tax can bind
the premises only as belonging to the
latter when levied upon them, and
as otherwise regularly laid and enforced
For these two alleged titles the one by
execution, the other by tax, are the de-
fendant's only grounds of claim; and,
unless the tax title can hold as binding
the land, though not belonging to NJ.
V. Boughton when the tax was laid,
and as otherwise regularly laid and en-
forced inasmuch as NJ. V. Boughton
is the defendants only source of
title. The effect, of the patent in cut
ting the NJ. V. Boughton title, and with
it the defendant leaves AS the controlling
title that which the plaintiff acquired
by adverse possession TO the patent.
1t does not, however, follow that the
effect Of the PLAINTIFFS proving the
patent is to cut the Boughton title off
down to the date of the patent; because
such is not necessarily the effect Of the
execution of the patent. Under sec
tons and 8 of the Union Pacific land
grant the United States conveyed to
the company the equitable title to the
lands specified in those sections, to be
confirmed upon the accomplishment of
given conditions, which are also therein
specified, by a patent from the Unit
ed States conveying the legal estate
in fee. The execution of the
patent is conclusive that the con
ditions were satisfied and that
at its execution the company, as against
the government, had acquired Il full
equitable title. The Boughton title
was founded on an adverse possession
which, If uninterrupted, would have
ultimately overcome and extinguished
the ~company's title.
But it is IN uniform principle of
ejectment that. If both parties claim title
from the same source, it is. treated for
all the purposes of the case that title
resided in that source; each party is es-
topped from denying it, and, so far as
respects that source, the contro-
versy is reduced TO the inquiry, which
party, plaintiff or defendant, If either,
mas BOI tltlt lTuU VHuI source! lUdl
is the next question in the case.
The defendant claims that the NJ. v.
Boughton's deed was executed to his
wife, whose name is Mary L. Boughton,
for n valuable consideration, paid to
him by her; that she was intended by
the name "Mary L, Boughtonn CON
tanned in the deed as the name of the
grantee, the initial "E" having been
inserted by mistake, and consequently
the NJ. V. Boughton interest was
not conveyed to the plaintiff, be-
cause she is u stranger to the
deed, not to Mary Boughton, be-
cause she was the grantor's wife, and
the execution of the deed was inopera-
tive, leaving the interest in him. If
the real grantee in this deed vas the
wife and not the plaintiff, the latter's
title is junior and inferior to that of
NJ. V. Boughton. The execution sale,
if valid as against the latter, transferred
his title to the defendant, the latter's en-
try in April of 1877 was under superior
title and his custer lawful. Thus the
execution deed is let into operation.
But, if the real grantee in this deed
is the plaintiff, NJ. V. Boughton's title
vested in her, the execution sale could
have passed nothing to defendant. So
far rs respects that sale his entry was
without title, and his custer illegal.
Who, then, is the grantee? The de-
PENDANT also claims that, if the plaintiff
is the grantee, the deed was not deliv-
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