GODKIN v. COHN et al.

GODKIN v. COHN et al. (Circuit Court of Appeals, Seventh Circuit. May 3, 1897.) No. 307. 1. Public Lands—Mistake in Land Patent. Where, by mistake arising from the erroneous numbering of lots upon a plat in a local land office, lot “No. 2” was described in entries and in patents as “No. 4,” and “No. 4” was described as “No. 2,” and these mistakes ran through successive conveyances of both lots, none of the purchasers being misled thereby as to the lot he was actually purchasing, but being merely mistaken as to its proper designation, the mistake may be corrected as against one who, with knowledge of the mistake, finally purchased lot “No. 4,” having it conveyed to him as lot “No. 2,” with the fraudulent purpose of claiming according to that description. ■2. Same. A remote grantee of the original patentee of lot No. 2, erroneously described as lot “No. 4,” may avail himself of the mistake, as each grantee should not be required to proceed by separate bill against his immediate grantor. 3. Same—Laches. The fact that nearly 24 years elapsed after the original mistake before the filing of the bill to correct the error does not constitute laches, neither the defendant nor any of his grantors having been prejudiced by the delay, and there having been nothing to put plaintiff or his grantors on inquiry as to the mistake until the assertion of the adverse claim, after which plaintiff proceeded with diligence. 4. Limitation. As it was not possible for the original patentee, under whom plaintiff claims, to assert his right as long as the legal title remained in the United States, the sovereign being exempt from suit, the limitation of 10 years prescribed by Rev. St. Wis. § 4221, did not begin to run until the conveyance of the legal title to the patentee under whom defendant claims. Appeal from tbe Circuit Court of tbe Uuited States for tbe West-urn District of Wisconsin. This is a bill in equity, filed in the court below by John Godkin, the appellant here, as complainant, which stated, in substance, the following facts: On June 10, 1896, Crosier Davidson, being the owner of military land warrant numbered 93,834, issued by the United States under the act of congress of March 3, 1895, applied at the United States land office at Stevens Point, in the state of Wisconsin, to locate in satisfaction of the warrant all that portion of section 12 in township 41 N., range 9 E., lying north of the east and west center line of the section, and east of the lake which indents the northern portion of the section (called for brevity the “northeast quarter” of the section, although the land covers all of that quarter section and some other land lying in the northwest quarter section between the northeast quarter section and the lake). The register and receiver, upon such application, caused to be written upon the plat of the lands in their office, and upon the lands so designated by Davidson, the following: “Land Warrant No. 93,834. Act 1855. it. and R. No. 10,577. June 10, 1869,”—and thereupon filed an application for such location, signed by Davidson, certified and attested by the register and receiver in the usual form of such applications, and asserting that the location was correct, and in accordance with law and instructions (referring to the instructions of the commissioner of the general land office issued May 3, 1855, which, among other things, contained the following: “Each warrant is to be distinctly and separately located upon a compact body of land”). The following Is a plat of section 12: The numbers referred to as “marked in red ink” are enclosed in parentheses; the red lines being indicated by dotted lines. The numbers of the lots as noted upon the plat in the general land office are marked in red ink; as they appear upon the plat in the local land office in black ink. The land inclosed by the red lines is a compact body of land, upon which Davidson designed to locate under the land warrant, and the land which the register and receiver understood he had located under such warrant, and which they intended to describe in his application, and to certify as being-located. These lands contained two full 40-acre lots, and, adjoining upon the west, two fractional lots, running westerly to the shore of the lake. The northerly fractional lot contained 35.50 acres and the southerly one 56.50 acres, according to the government survey. The whole of the land embraced withiD the red lines contained 172 acres, which, being- 12 acres in excess of the quantity of land to which Davidson was entitled under the warrant, he was required to pay and did pay to the register and receiver, in cash, the government price for the excess of 12 acres, and took a receipt therefor. In the application made out by the receiver and signed by Davidson, the land was described as the “east y2, northeast 14, and lots one (1) and four (4) of section No. 12, in township forty-one (41) north, of range nine (9) east, in district of lands subject to sale at the land office at Stevens Point, Wisconsin, containing 172 acres.” The southerly one of the two fractional lots was described in the application as “lot four,” instead of by its correct number, “lot two,” through clerical error by the register or receiver, or by some clerk in their service. The application was forwarded to the general land office, and upon July 1, 1870, a' patent was duly issued by the United States, conveying to Crosier Davidson lots 1 and 4, and the E. % of the N. E. % of section 12, in town 41 N., of range 9 E. The error in describing lot 2 as lot 4 arose from the error of the local land office in entering the location, and from mistakingly reporting the location and purchase as conveying, lot 4 instead of lot 2. This patent has never been delivered to Davidson, or to those claiming under him, but still remains in possession of the government officers. The words, figures, and letters appearing upon the drawing are fac-similes of the original words, figures, and letters which the register and receiver caused to be written upon the government plat in their office at the time Davidson made his location; and such words, figures, and letters show that the lands embraced in the red lines were located under warrant No. 9,334-, issued under act of 1855, and that the lands so located were intended to be described in the register and receiver’s duplicate receipt No. 10,-577, issued June 10, 1869. There is in section 12 a fractional lot 4, but it is not contiguous to or adjoining any lands in the N. E. 14 of the section, but appears in the drawing in the N. W. 14 of the S. W. 14 of the section; contains only 31.30 acres of land according to the government survey, and is separated from the E. % of the N. E. 14 and lot 1 of the section by two fractional lots; so that, if the land warrant had been located in fact as described in the application and patent, the location would cover but 147.20 instead of 172 acres, and the land warrant in such case would not have been located upon a compact body of land according.to the instruction of the commissioner of the general land’ office. By an error of some clerk in the service of the United States, lot 2 was erroneously numbered upon the government plat furnished by the United States to the register and receiver, and by them kept in the land office at Stevens Point, by entering thereon the figure 4 as its number, and' a like error was made in numbering lot 4 by entering thereon the figure 2, and that appears upon the plat still preserved in the local land office now located at Wausau. Davidson and wife conveyed to Parry, Boss, and Oockburn, August 3, 1871, by warranty deed with the usual covenants. March 22, 1872, Parry, by like deed, and for a valuable consideration, conveyed his interest to Oockburn and Boss; and on August 28, 1875, Oockburn, by a like warranty deed with the usual covenants, ■ and for a valuable consideration, conveyed his interest to Boss. On September 29, 1892, Boss likewise conveyed to Benjamin Godkin and John Godkin, and on March 17, 1891, Benjamin God-kin, by like warranty deed with the usual covenants, and for a valuable consideration, conveyed to John Godkin, the complainant and appellant. All the grantors and grantees intended to describe in their several deeds the laud applied for and intended to be entered by Davidson, and intended that the same should be conveyed by each of these deeds; but, misled by the error and mistake charged, and following the description given to the lands by the receiver and register, described as lot 4 tbe southerly lot of the two lots west of the E. % of the N. B. Yi> instead of describing it as lot 2. Assessors of the state of Wisconsin, whose duty it was to enter taxable real estate upon their assessment rolls in regular order as to lots and blocks, sections and parts of sections, up to and including the year 1877 (with the exception of the year 1876), assessed the property according to the description that appears in the deeds. In the year 1876 there was no lot 4 assessed as a part of the N. E. % ■of section 12; but a lot 2 was assessed, which Boss, the then owner of the N. E. Yi, being misled by the error of the United States officers, did not recognize by that description as part of the N. E. % of the section, and through mistake, and by being misled, failed to pay the taxes levied in that year. For the same reason taxes assessed upon a portion of the N. B. % were unpaid in 1882; but Davidson and his grantees intended in good faith to pay the taxes in each year, and attempted so to do, and would so have done but for the fact that they did not recognize the entry of the lot in the assessment in the tax roll by any other description than lot 4. The defendant Gohn once claimed some title or interest in lot 2 under tax deed issued to one Giliett upon tax sales of lot 2 for the years 1875 and 1882, in which years the legal title to lot 2 was still vested in the United States. Gohn obtained from Giliett a conveyance of lot 2 on December 29, 1891, but the complainant avers upon information and belief that Cohn did not intend to rely thereon as a title to lot 2, but bases his claim upon certain other conveyances, now to be stated. •On October 20, 1885, one Dunfield applied to the local land office to purchase from the United States a fractional lot in section 12, being the N. W. % •of the S. W. Y± of that section, the correct number of which lot is 4; but. Dunfield and the register and receiver believing that its number was 2, it was, through mistake, described as lot 2 in the entry, and purchase then made by Dunfield, and in the record of the register and receiver touching such entry and purchase, and in their report thereof to the government. The entry of Dun-field was noted upon the defective plat upon the N. W. Y,, which upon the plat bears the number 2 instead of the correct number, 4. Dunfield designed to purchase, and in fact paid for, 31.70 acres of land,—that being the number of acres charged against him by the register and receiver in the entry (which included other lands) as the acreage of the land erroneously described in the entry as lot 2; that amount being the correct area of lot 4 in the section ■according to the government survey. Thereafter, on July 30, 1886, a patent was issued by the government to Dunfield, conveying lot 2, which patent has never been delivered, but is still in possession of the government officers. Dunfield never claimed the ownership or title to any part of the N. E. Yi of -the section, but always claimed the ownership and title to the N. W. % of the S. W. % of the section. On November 24, 1885, he sold the land to one Thomas B. Scott, since deceased, conveying it by- warranty deed, wherein he described the land both as lot 4 of section 12 and as the N. W. % of the S. W. % of that section. After the death of Thomas B. Scott, Walter A. Scott, his devisee in trust, thinking the correct number of the lot to be lot 2, obtained a quitclaim deed of the same from Dunfield on February 1, 1888, the lot being therein described as “the northwest quarter of the southwest quarter of said section twelve (12),” and as lot 2 of that section. These conveyances were duly recorded in the proper office in the years 1886 and 1888. Walter A. Scott, trustee, by deed dated June 20, 1891, recorded July 1, 1891, conveyed to Thomas B. Scott, an heir of Thomas B. Scott, deceased. By deed June 29, 1891, recorded ■July '2, 1891, Thomas B. Scott conveyed to Walter A. Scott. By deed dated June 20, 1891, recorded July 6, 1891, Walter S. Scott conveyed to Gassie S. Cushing. By deed dated May 4, 1892, recorded May 17, 1892, Cassie S. Gushing conveyed to Walter A. Scott and Thomas B. Scott. In each and all of these conveyances the lot was described as the N. W. % of the S. W. *4 of the section, and as lot 2 of that section. Lot 2 of section 12, east of the lake, was a valuable piece of land. Up to the winter of 1892-93 its chief and almost entire value consisted in the pine timber growing thereon, which alone was of the value of $17,000. Lot 4, being the lot in the N. W. % of the S. W. %, and south of the lake, was also chiefly valuable for its pine timber, but was never worth, with the pine timber thereon, to exceed $400. None of the grantees fin the deeds described, deriving title from or under Dunfield, ever claimed any right or ownership in any part of the N. E. Vi of section 12, but they each and all believed and understood that the title derived by them from Dunfield was a title to the N. W. Vi of the S. W. Vi of that section, and claimed title thereto. The defendant Cohn, having ascertained the error which had been committed in the location by Davidson and entry by Dunfield, and that they had each obtained the title from the government to land which they had not purchased, and that they and their grantees, respectively, were ágnorant of the fact, and that Dunfield, Thomas B. Scott, and those claiming under him did not know that lot 2 described in the entry of Dunfield and the patent thereon issued was in the N. E. Vi of the section, but supposed and believed that lot 2 was the N. W. Vi of the S. W. Vi of the section, and intending and designing to make profit to himself out of such mistake and out of the continued ignorance of the parties claiming lots 2 and 4, respectively, negotiated with Walter A. Scott for the purchase of the N. W. Vi of the S. W. Vi of section 12, and agreed upon a price to be paid therefor upon the basis of an estimate of the pine timber growing and standing thereon, which he procured to be made, and upon an estimate of the timber upon the same lot which Scott had in his possession, and which had been made or procured by Dunfield, or by some one claiming under him. Cohn drafted a deed from the two Scotts, grantees in the deed of May 4, 1892, to himself, in which deed he did not describe the lands actually purchased by him, but therein described the land as lot 2 in section 12; and the two Scotts, believing that they were conveying to him by th^.t deed the lot which they claimed to own, namely, the N-. W. Vi of the S. W. Vi oí section 12, executed and delivered to Cohn a deed on August 16, 1892, for the sum of $400, which was about one-twentieth part of the actual value of the rea.1 lot 2-On November 10, 1892, Cohn conveyed to the defendant Finn an undivided one-half interest in the pine timber upon lot 2, warranting the title thereto, Finn agreeing to cut all the pine timber into merchantable saw logs, and remove the same from lot 2 during the logging season of 1892-93. The consideration of this deed was expressed to be $2,135, the receipt of $250 being acknowledged, Finn agreeing to give to Cohn his promissory notes for the balance of the consideration. Finn afterwards assigned to the defendant Sales some interest in the timber purchased by Cohn. Thereupon Finn and Sales entered upon lot 2, and began to cut timber thereon, and claimed ownership thereof; and, upon the complainant becoming informed of their claim of title, he was led to investigate the facts concerning the location of Davidson and the entry of Dunfield, and then for the first time ascertained the facts in regard to the errors and mistakes asserted. None of the grantors or grantees in the complainant’s chain of title had any information or knowledge that the error had been committed in the location by Davidson, but each and all believed the location covered theN. E. Vi of section 12, and the land described upon the plat as located by Davidson. Having become informed of the facts, he notified Finn and Sales of his equitable ownership in lot 2, and forbade the cutting or removing of any timber therefrom. Finn and Sales, however, persisted after this notification, and removed all the merchantable timber, to the value of $17,000. Finn and Sales entered into negotiations with the defendant the Merrill Lumber Company for the sale to them of the logs and timber so cut and removed from lot 2, and, pending the negotiations, and before their conclusion, Godkin, the complainant, notified the Merrill Lumber Company of his title and ownership in the logs- and, timber, but, notwithstanding, the Merrill Lumber Company consummated the negotiations, and purchased the logs and timber, and now claims to own the same. The purchase was upon credit, and not for cash, except as to a small cash payment made thereon. All these parties charged, before the time of their respective purchases, knew of the errors and mistakes set forth in the location by Davidson and the entry by Dunfield, and of Davidson’s intention that the-location should cover lot 2, and of Dunfield’s intention that his entry should cover lot 4. The interior department of the United States does not and will not correct any error of the government, or between the government and purchasers of land from it, unless application is made for the correction before a. patent for the lands has been executed and recorded; and the complainant has now no remedy in the interior department for the correction of the errors and to obtain title to lot 2, and has no adequate remedy at law whereby he may obtain justice. He has applied to the interior department for correction of the-patents before they should be actually delivered, but bis application was refused, and sueb correction now would not avail, as tbe timber, which constitutes almost the entire value, has been cut and removed as stated. The complainant offers to convey lot 4 to Cohn, or to such of his grantees as may be entitled to receive conveyance, as may be decreed by the court. The bill prays-that it may be decreed that Cohn “took and holds the title to said lot two in section twelve, town forty-one, range nine, in trust for your orator, and that he and the other defendants be decreed to execute said trust by conveying said title to your orator, and by accounting to and paying your orator the value of said timber taken by him and them, together with interest thereon, and such other damages as your orator may be entitled to recover, together with the costs of this suit, and such other relief as your orator may be entitled to in this suit.” The defendants demurred to the bill generally, and specifically upon the ground that the bill showed that the complainant had no interest in lot 2, and had no right of action or right to any relief against the defendants, or any of them, but the right of action, if any, is in Crosier Davidson, named in the bill; and also upon the ground that the right of action has been barred by lapse of time, and the laches and delay of the complainant and those under whom he claims, and that the action was not commenced within the time limited by law; that the complainant has an adequate remedy at law; and that the grantors of the complainant are necessary parties to the bill. Upon hearing, the court sustained the demurrer, and dismissed the bill, from which decree the complainant appealed to this court. O. L. Collins, W. C. Silverthorn, H. A. Hurley, T. C. Ryan, and G-. D. Jones, for appellant. Heal Brown, L. A. Pradt, and H. C. Hetzel, for appellees. Before WOODS, JEKKIHS, and SHOWALTER, 'Circuit Judges. [MAJORITY — JENKINS, Circuit Judge] JENKINS, Circuit Judge (after stating the facts as above). Assuming, as we must, the truth of the allegations of fact stated in the bill, it is established that Davidson located under his warrant the 172 acres of land in the H. § of section 12 embraced within the red lines of the plat. This is rendered certain by the entry of the register of the land office upon the plat. It is also clear that Dunfield in fact purchased the lot in the H. W. \ of the S. W. \ of the section, wrongly numbered 2, and not the lot located by Davidson, wrongly numbered 4. He paid upon the basis of the acreage contained in that lot, which was less in amount than the acreage contained in lot 2; and upon the plat his entry was noted by the government officials upon the lot in the H. W. ¿ of the S. W \ of the section. Both mistakes in the entries and in the patents arose from the erroneous numbering of the respective lots upon the plat in the local land office. Dunfield conveyed, describing his lot as lying in the H. W. of the S. W. -£ of the section, thus emphasizing the fact that he claimed lot 4, and not lot 2. It results that when lot 2 was so located by Davidson, the United States held the legal title thereto, as trustee for the benefit of Davidson, and upon conveyance of that title to another “the grantee with notice took it subject to the equitable claim of the first purchaser, who could compel its transfer to him. In all such cases a court of equity will convert the second purchaser into a trustee of the true owner and compel him to convey the legal title.” Cornelius v. Kessel, 128 U. S. 456, 460, 9 Sup. Ct. 122. The government had received from Davidson the consideration for lot 2. It intended to sell, and the officers supposed they had sold, that lot to Davidson; and the latter intended to purchase, and supposed he had purchased, it. The government was, therefore, bound in good morals and in law to grant the legal title to the property purchased (U. S.v. Hughes, 11 How. 552), and was clearly bound to correct the mistake occurring through the error of its officials. This correction could have been made under sections 2369-2372, Rev. St., upon proper application prior to the issuance of the patent to Dunfield; and doubtless, if such application had been made, the error would have been corrected. Upon conveyance by the government of the lot so sold to Davidson, the purchaser with notice of Davidson’s rights is charged as trustee of the true owner. So Dunfield, not intending to purchase lot 2, but receiving legal title thereto through the mistake of the officers of the government, is also chargeable as trustee for the true owner, as was Davidson chargeable by virtue of the patent to him of lot 4, as trustee for Dunfield. So likewise are Dunfield’s grantees, who took title under similar mistake, supposing they were purchasing, and intending to purchase, lot 4, and not lot 2. Cohn knew of the mutual mistakes and designed to obtain an unjust advantage. He in fact purchased lot 4, but induced his grantor to convey a lot which he did not purchase. This was an imposition upon his grantor, who was innocent of any designed wrong, being only the victim of the mistake of the officers of the government; but Cohn cannot be regarded as an innocent purchaser, since he had notice of the errors of description. Possibly a more difficult question touches the right of the grantees of Davidson to avail themselves of the mistake. Each of them supposed he was purchasing, and intended to purchase, and each grantor supposed he was selling, and intended to sell, lot 2. The several mistakes in description arose from the original error of the government officials in marking the plat. Davidson, then having the equitable title to lot 2, and supposing that he had the legal title thereto under its description as lot 4, undertook to convey his interest in all the property in section 12 which he had located under his land warrant; and by his deed, although by wrong description, conveyed his equitable interest therein, which, through like successive conveyances, passed to the appellant. We see no valid objection to sustaining the right of the appellant to have correction of an error that is common to both claims of title. A direct proceeding like the present would certainly avoid a multiplicity of actions. It would be, if the facts alleged are established, an unnecessary requirement that each grantee should proceed by separate bills against his immediate grantor, when the whole beneficial estate is vested in the appellant. It is not like the case of Crocker v. Bellangee, 6 Wis. 645, relied upon by the appellees. There the plaintiff’s grantor had conveyed to the defendant, and, as was alleged, had been imposed upon and defrauded in the sale. Thereafter, without attempt at rescission, the grantor conveyed the same property to the plaintiff, who filed his bill to set aside his grantor’s conveyance to Bellangee, seeking to avail himself of the fraud- practiced on his grantor. It was held, and we think rightly so, that the fraudulent sale was voidable, not void, and then only at the election of the party defrauded; that the title, both legal and equitable, had passed by the conveyance to Bellangee, subject to be defeated, if obtained by fraud, only by direct action of tbe party defrauded; and that tbe subsequent conveyance to Crocker by tbe grantor of Bellangee did not devest tbe title. To tbe like effect is Graham v. Railroad Co., 102 U. S. 148. But here Davidson bad tbe equitable title. Tbe United States held tbe legal title in trust for bim. It later conveyed tbe legal title through error, and Dunfield, tbe grantee, and those bolding under bim, took it with notice of tbe error, or under such circumstances that in equity they must be charged as trustees. Davidson conveyed bis equitable title supposing be bad tbe legal title. Although tbe original error of description runs through tbe entire chain of title, we .must bold that tbe effect of tbe conveyances is in equity to vest tbe equitable title to lot 2 in tbe appellant. This conclusion is sustained by authority which we are not at liberty to disregard. Thus, in May v. Adams, 58 Vt. 74, 3 Atl. 187, two tenants in common divided their lands by deed of partition. There was a mutual mistake in tbe deed in that tbe language did not correctly describe tbe line agreed upon. Tbe agreed line was recognized and understood by them to be tbe one described in tbe deed so long as they were tbe owners, and tbe parties to tbe suit purchased with like understanding, and recognized it for several years. It was held that tbe mistake was remediable in equity both between tbe original owners and their grantees. So, also, in Widdicombe v. Childers, 124 U. S. 404, 8 Sup. Ct. 517, Smith, tbe grantor of tbe defendant, purchased at tbe proper land office tbe southeast quarter of a section; but tbe register by mistake described it in tbe application as tbe southwest quarter, and tbe entry in tbe plat book showed tbe purchase and sale of the southeast quarter. Tbe plaintiff, with full knowledge of these facts, afterwards located and obtained a patent for tbe southeast quarter. It was held that be was a purchaser in bad faith, and that bis legal title, though good as against tbe United States, was subiect to the superior equities of Smith and of those claiming under him. We are unable to distinguish between that case and tbe one in band. Tbe facts bear remarkable similarity. To like effect is Hoyt v. Gooding, 99 Mich. 71, 58 N. W. 41. It is alleged that this bill should not be sustained, because of laches. Tbe location by Davidson was made June 10, 1869. Tbe suit was brought in tbe year 1893. Tbe lands are known as “pine lands,” and were for many years after tbe entry remote from railway communication. They doubtless were obtained, as most lands of similar character in the northern section of tbe state were purchased, with a view to tbe prospective increase in value of pine timber. It is true that nearly 24 years bad elapsed prior to tbe filing of tbe bill to correct tbe error. But that is not controlling. There must be neglect in tbe enforcement of a right, and such negligence presupposes knowledge of one’s right. So laches may be excused from ignorance of one’s right or from tbe obscurity of tbe transaction. What is required is that one seeking tbe aid of equity should use reasonable diligence in bis application for relief. Thus in Galliher v. Cadwell, 145 U. S. 368, 372,12 Sup. Ct. 873, it is said that tbe decisions on tbe question of laches “proceed on the assumption that tbe party to whom laches is imputed has knowledge of his rights, and an ample opportunity to establish them in the proper forum; that by reason of his delay the adverse party has good reason to believe that the alleged rights are worthless, or have been abandoned; and that because of the change in condition or relations during this period of delay, it would be an injustice to the latter to permit him now to assert them.” And on page 373, 145 U. S., and page 874, 12 Sup. Ct., it is said that “laches is not, like limitation, a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced,—an inequity founded upon some change in the condition or relations of the property or the parties.” In Halstead v. Grinnan, 152 U. S. 412, 416, 14 Sup. Ct. 641, it is observed: “The length of time during which the party neglects the assertion of his rights, which must pass in order to show laches, varies with the peculiar circumstances of each ease, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defense, controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant to the rights such, that it would be inequitable to permit the plaintiff to now assert them.” See, also, Alsop v. Riker, 155 U. S. 448, 15 Sup. Ct. 162; Gildersleeve v. Mining Co., 161 U. S. 573, 16 Sup. Ct. 663. •Applying these principles to the facts stated in the bill, we are unable to say that the appellant or any of his grantors is properly chargeable with laches. We can discover here no sleeping upon one’s rights, or any negligence in ascertaining those rights. There was no assertion of claim to this lot 2 by any one other than Davidson’s grantees until the month of August, 1892, when Cohn, with knowledge of the mistakes, designedly imposed upon his grantor, and obtained a legal title to the lot which he had not purchased, and which his grantor did not claim. That was the first assertion of an adverse claim to the property to which the appellant had equitable title. There was no actual invasion of the possession until December, 1892, and thereafter the appellant proceeded with diligence, both by notification to the parties and by suit, in the assertion of his rights. During the period between the location of the lands by Davidson and the assertion of title by Cohn there was nothing to put the parties upon inquiry with respect to the mistake. An investigation of the records of the land office at Stevens Point or Wausau would not have suggested an error; to the contrary, would have confirmed them in the belief that there was no error. It is true that an examination of the plat in the general land office at Washington would have disclosed the mistake, but, without anything to put them upon inquiry, and in the absence of any adverse claim to the property, we are not prepared to say that diligence required a journey to Washington, or communciation with the general land office at Washington, to verify the correctness of the government plat in the land office at Stevens Point or Wausau. There was, therefore, no negligence in failing to apply for a correction of the error under sections 2369, 2372, Rev. St. Neither Davidson nor his grantee knew, or could reasonably be charged with knowledge, of the errors prior to the assertion of title by Cohn. Until then they had no knowledge of their rights, and there was no sleeping upon their rights; nor has Dunfield or any of his grantees been prejudiced by the lapse of time. It is also asserted that the appellant’s right of action is barred by the statute of limitations of the state of Wisconsin. Subdivision 4, § 4221, Rev. St. Wis., classifies actions which must be commenced within 10 years, and the subdivision is as follows: “An action which, on or before the 28th day of February in the year 1857 was cognizable by the court of chancery, when no limitation is prescribed in this chapter.” It is true that a suit to correct a mistake in a deed must be brought within 10 years, and that the term commences at the delivery of the defective deed. Parker v. Kane, 4 Wis. 1. But the statutes of Wisconsin also provide (section 4231): “If, when the cause of action shall accrue against any person, he shall be out of this state, such action may be commenced within the terms herein respectively limited, after such person shall return to or remove to this state. But the foregoing provision shall not apply to any case where, at the time the cause of action shall accrue, neither the party against or in favor of whom the same shall accrue is a resident of this state; and if, after a cause of action shall have accrued against any person, he shall depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” This provision of law. clearly indicates tbe intention of the legislature of the state with respect to the application of the statutes of limitations, that there must be a person who may be sued, and one upon whom process may be served. Thus section 4233 provides that the statute of limitations shall not operate against infants, insane persons, or a person imprisoned upon a criminal charge, during the time of such disability. From 1869, when the mistake occurred, and a cause of action arose in favor of Davidson, to October 20, 1885, when Dunfield made his entry, the legal title to lot 2 was in the United States, the equitable title being in Davidson. It was not possible for Davidson to assert his right during that period, for the sovereign is exempt from suit. Under such circumstances it would be most unjust to apply the statute of limitations. Such statutes do not bind the sovereign without its consent. They cannot bind the individual in the assertion of a right as against the sovereign exempt from suit. We cannot believe that the legislature of the state designed that it should have such an application. The suit was brought within 10 years after the conveyance of the legal title to Dunfield. We are of opinion that the court below erred in sustaining the demurrer to the bill, and that the decree dismissing the bill must be reversed, and the cause remanded for further proceedings in conformity with this opinion.