McLane vs. Bovee and another. effect of the former verdict and judgment upon the rights of the parties in the present action. In that action the title in fee to the land in controversy was adjudged to be in the defendant Frederick Bovee. This is conclusive as against the present plaintiff. R. S., ch. 141, sec. 19 (Tay. Stats., 1469). It has, therefore, become a verity in this case, that at some time before that judgment was rendered, Frederick Bovee was seized in fee of such land. The plaintiff claims that the title which he seeks to establish in this action is an after acquired title, which he is not estopped by the former judgment to assert. To determine whether his title is unaffected thereby, it becomes necessary to ascertain the extent of the operation of such judgment. At the common law the plaintiff in an action of ejectment could only recover on proof of title and right of possession in his lessor at the date of the fictitious demise laid in the declaration. But under our system of practice the fiction of a demise is abolished, and it is now sufficient for the plaintiff in ejectment to show title and right of possession at the time he commenced his action. But he must show that he had such right at that time, or he cannot recover. Hence the general denial only puts in issue the plaintiff's title and right when the action was commenced, and not at a subsequent time. Such being the issue, it necessarily follows that the judgment is only conclusive of the title of the plaintiff and his right of possession at that time. Yount v. Howell, 14 Cal., 465; Owen v. Fowler, 24 id., 192; Hestres v. Brennan, 37 id., 385. Under the pleadings it would have been error to permit the defendant in the former action, McLane, to give evidence of an afteracquired title; and the court properly rejected the certificate of entry of 1868, offered by him. It was incumbent on him to procure leave of court therefor, and to file a supplemental answer, alleging the cancellation of Moon's certificate of entry, and the issuing of another to himself pursuant to the act of 1868, before such evidence could be properly admitted. Tyler McLane vs. Bovee and another. on Ejectment, 468-71, and cases cited; McMinn v. O'Connor, 27 Cal., 238; Moss v. Shear, 30 id., 467; Reily v. Lancaster, 39 id., 354. But, while the court had the power, upon the application of the defendant in the former action, to permit him to interpose such supplemental answer and thus bring into the case for adjudication his title acquired pendente lite, and while, had he done so, the judgment thereupon would have been conclusive against the parties to that action and those in privity with them, yet we know of no rule of law which requires or authorizes us to hold that, notwithstanding such after-acquired title was not set up or adjudicated in the action, still the present plaintiff is estopped by that judgment to assert such title here. Had he made application for leave to set up such title as a defense, by supplemental answer, it was within the sound discretion of the court to grant leave, with or without terms, or to refuse it. Tay. Stats., 1447, § 45. It seems to us that nothing short of an absolute and unconditional right to interpose such defense, puis darrein continuance, should be held to estop the plaintiff from asserting it in this action for the first time. In the light of the above principles the determination of the case is not difficult. At the time Frederick Bovee commenced his action against McLane in 1866, he (Bovee) owned the title to the land in controversy which Moon took by virtue of his purchase and certificate of entry. The jury denominated this a title in fee, but of course it was not a fee simple absolute. Some title or interest remained in the United States. Our statute (Tay. Stats., 1614, § 142) makes such certificates prima facie evidence of title, but does not specify the kind or character of title evidenced thereby. The payment for the land and the certificate of entry doubtless conferred upon Moon, and his assignee or grantee, "a valid subsisting interest" in the land, to which the right of possession was incident; and this was sufficient to enable such grantee to maintain ejectment. R. S., ch. 141, sec. 2. McLane vs. Bovce and another. The most that can be successfully claimed for the present defendants, under the judgment in the former action, is, that when such action was instituted, Frederick Bovee was seized of an estate in fee in the lands in question, belonging to a class which Professor Washburn denominates determinable fees, and which he defines to be "fees which are liable to be determined by some act or event expressed on their limitation to circumscribe their continuance, or inferred by law as bounding their extent." 1 Washb. on Real Property, 62. That the commissioner of the general land office had authority to cancel the certificate to Moon, for cause, at any time before a patent issued, cannot be doubted. Such powers have been constantly exercised by the land officers of the government, and the exercise thereof sustained by the courts, ever since our land system was established. We here find the limitation on the fee, or its determinable quality inferred by law, mentioned in the above definition. In Trulock v. Taylor, 26 Ark., 54, such titles are termed "inchoate legal titles." The title of Frederick Bovee, which was established by the former judgment, was legally determined by the cancellation of Moon's certificate of entry after the former action was commenced; and the whole title became thereby vested in the United States. The patent to McLane, the present plaintiff, conveyed that title to him, and, as we have seen, he may assert it in this action. The judgment of the circuit court must be affirmed. The appellant moved for a rehearing, but the motion was denied at the June term, 1874. State ex rel. Flint vs. The Common Council of Fond du Lac. STATE ex rel. FLINT VS. THE COMMON COUNCIL OF FOND DU LAC. CERTIORARI. (1) How writ to be served. (2) Effect of voluntary return. (3–5) Remedy of party defectively served. (6) Order refusing to quash the writ, not appealable. 1. A writ of certiorari must be served by delivering the original, and not a copy, to the proper officer of the court or tribunal to which it is directed. 2. Where the writ has not been properly served, a voluntary return thereto by the party addressed may constitute a waiver of the objection. 3. If the party, without making a return, would take advantage of a defect in the service of the writ, it seems that his proper remedy is by a motion to supersede the writ on that ground. 4. While the writ is not before the court, a motion to quash it seems to be irregular. 5. Where the sheriff has brought back the writ with his certificate of supposed service (by copy) indorsed thereon, quære: (1.) Whether the writ can be regarded as before the court, so that a motion to quash for defective service is proper. (2.) Whether in such case the court will not direct proper service to be made. 6. In this case an order refusing to quash a writ of certiorari, which order was made on the ground that no return had been made to the writ, is held not appealable. APPEAL from the Circuit Court for Fond du Lac County. Upon the affidavit and petition of the relator, the judge of the Fond du Lac circuit court, at chambers, granted a writ of certiorari addressed to the common council of the city of Fond du Lac, commanding them to certify to said court, at its then next general term (commencing in September, 1873), all the acts and proceedings of said council touching the laying out of a new street between Forest and Second Streets in said city, and all resolutions, orders, and other acts of said council, and of all other officers or agents of said city, relating in any way whatever to said improvement, and the proceedings and report of the commissioners appointed by the order of said council to State ex rel. Flint vs. The Common Council of Fond du Lac. appraise and assess benefits and damages for the laying out of said street. The sheriff returned the writ, attached to the order of the court granting the same, and the affidavit upon which such order was made, with an indorsement upon the writ to the effect that he "duly served the within affidavit, order and certiorari on the mayor and clerk [naming them], members of the common council and officers of the city of Fond du Lac personally, by delivering to and leaving with the mayor a true copy thereof" on the day named, and with the clerk on the following day. The papers so returned were filed in the office of the clerk of said court on the 23d of August, 1873. Afterwards the common council moved to quash the writ upon the grounds that it was not directed to the person or persons having the legal custody of the record of the proceedings sought to be reviewed; that the city clerk had legal custody of such record and papers, and was the only person who could make return to the writ; that it did not appear from the relator's petition that the common council of said city had exceeded its powers or jurisdiction; that the petition and writ failed to show on their face any case in which such writ ought to issue; and that the writ was in other respects defective and insufficient. The motion to quash was denied on the ground that it was premature, no return having been made to the writ. From this order the common council appealed. J. W. Bass, for appellant: There are some old cases in New York which hold that a writ of certiorari must be returned before a motion is made to quash it. In those cases the original writ was served, and until it was returned the court could have nothing to pass upon. Here the original writ was never served, but the origi nal petition, order and writ were on file in the court, so that there was nothing to prevent the court from passing upon them. How could the persons to whom the writ was addressed make a return of it to the court, when the court held it in its own hands? |