HISTORY OF O'BRIEN COUNTY

CHAPTER XIX.

LITIGATION IN O'BRIEN COUNTY.

The experience of O'Brien county in the amount or aggregate quantity of litigation, and of the changes that have resulted as the county has grown older in years, has been much the same as many other rural and farming counties in Iowa. Its probate work has increased as the years have moved on. All other litigations have decreased. There are many reasons for this. The county was first settled by young and middle aged men, mainly by men under forty years of age. It followed, therefore, that the death rate per thousand people has increased each year thus far. This necessarily increases the probate work and all that class of court proceedings relating to wills, executors, trustees, administrators and guardians, and actions for the partition and sale of real estate and divisions of property among heirs and children. This large class of court proceedings very seldom calls for a jury and belongs to that division of litigation passed upon by the court, upon short hearings in large part. The rapid advance in price of land from ten to one hundred and fifty and more dollars per acre, within the short space of thirty years, on the other hand in settlements of estates and partitions has had the tendency to leave the families satisfied with court results, and has usually brought about adjustments with but a nominal number of contests. Indeed so far in the county this advance from year to year has been so rapid that, no matter what the questions involved, the heirs as a rule have received more than he or she expected, and satisfactory adjustment has been the rule rather than the exception. This, however, means only in the general tendency. Also, while the values have gone up, the rates of interest have gone down, and as a consequence the amounts in which loans could be placed on a forty, eighty or quarter section of land have increased in this thirty years from three dollars per acre until now, if needed, loans can actually be made from sixty dollars per acre to even seventy-five per acre. In these partitions of property among the second generation or now third, and occasionally fourth, generations from the original homesteader, these lands and loans that can be made enable these children and heirs to buy each other out in shares and handle matters in that way. The tendencies of all these situations have been

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to smooth out frictions and to end what might otherwise be litigations. The great prosperities of these later years have paid off hundreds of these mortgages and lessened the number of foreclosures of mortgages. It seemed a curious fact that the court records show far more foreclosures in the earlier days, when only five hundred dollars could be borrowed and when the poorer settler was paying ten per cent interest, than now when he could, if he wished, borrow ten thousand at five per cent.
Another prominent item has tended to the later lessening of litigation. During the period from 1873 to l885 the numbers of sales of land for taxes were, as compared to the last ten years, as twenty to one. Tax sales in the county are now a rarity. Tax deeds then were as ten to one now. No matter how careful the tax purchaser, his tax deed was under the ban of a natural prejudice. The courts were called upon to establish his rights. Those tax title questions have now been practically all solved out. Those litigations are past, though it took a goodly number of years and many go to sale, much less to a deed. Even the refuse or back town lots in the smallest towns are too valuable to lose out in a tax deed.
Another big question in the earlier days which contributed to the extent of litigation were the contests between the early homesteaders and squatters and railroads and between each other. This was especially notable in the long years of litigation over the overlapping lands. This subject has been exhaustively gone into in the chapter on Homesteads, Free Lands and Squatters, and we need not here repeat its details. When men are contesting for possession of land, it arouses far more frictions and determinations to fight than when simply partitioning out lands of large value, where cash is ready for the heir. When excited men are contending for the nine points of law or present possession and actually putting in their crops on top of each other it caused many litigations. Farming with threatening revolvers or writs of ejection increased the number of suits.
The period in the early day when every tract practically had to have a loan on it to carry the land and other debts, called on the technical Eastern loan company to investigate the title to each tract. Much of the early business was necessarily done loosely, land being cheap, and owners did not look after the loopholes. These Eastern loans and the looking into the titles to warrant making them, kept straightening out those titles, together with the suits necessary to make the records right. All this kept decreasing the number of questions, calling for trouble, between neighbors, purchasers or loan companies. That class of litigation is now largely out of the way.

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The collection of the many hundreds of private debts contracted in the early days increased the litigations and numbers of suits. The payment of most of those old matters has made the people independent and more contented. Besides the very fact that people have more to do with, and handle themselves and their properties, and that they plan in larger figures, make them better satisfied and contented. Contentment and a happy frame of mind ends much litigation.

THE LARGER AND LESSER LITIGATIONS.

It is a little difficult to draw a line between the leading and the lesser litigations. It sometimes occurs that some lesser decisions are more important than the greater.
Perhaps the one great suit decided in the supreme court of the United States on October 21, 1895, relating to the twenty-two thousand acres of overlapping lands claimed by the railroads, and involving one hundred and twenty-five families, was the most important single litigated matter brought into one court ever affecting our people. True, however, that that was in the federal courts. The fact that some six to eight hundred suits in our own court house in Primghar all hovered around this nucleus of litigation, made it in effect an O'Brien county litigation. See the chapter on homesteads and free lands for a full statement.
The second largest litigation ever in the county was the series of suits in our own courts, during the same period, testing out those large mass of legal questions of the taxation of those same railroad lands, and when taxation commenced. These questions were somewhat akin to the land questions themselves. The county commenced the assessment and levy of taxes on those lands as early as 1873, on the theory that the railroads under the grant by Congress should commence to pay taxes when they should have earned them, or at least when they did earn them. The county did this to save whatever rights might later be found to exist. We make these tax suits a separate series from the lands, as in this series of suits the county of O'Brien, as a financial institution, was a party and became interested in the collection of its revenues that it should have had in years gone bv. To further complicate matters, several boards during the years had entered into sundry contracts with the railroads attempting to fix dates when taxation commenced. In this series of suits questions were raised that even the boards of supervisors had no right to make contracts that would lessen the people's rights to collect its revenues, and that the determining point when

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taxation commenced depended on the deeper questions of congressional land grants and other questions by the courts, and the questions when title commenced, so that taxation could he had, were all gone into. In the meantime also the county, by its treasurers, had in some of the years sold some of these lands for these disputed taxes and sundry tax deeds had been issued on same. But even this series of tax suits largely lingered around the one great parent suit in the supreme court of the United States of 1895 referred to, and the attendant federal litigation. In the main, and as a final result, the homesteader and squatter paid his back taxes after he secured patent and during the subsequent years, and those who secured title by virtue of being holders of the railroad contracts were held to pay taxes for many years further back, as they stood in the shoes of the railroads. The payment and collection of these large amounts of back taxes in such large sums in these later years between 1900 and 1910 replenished the treasuries in the sundry funds and much aided the county in solving out some of these serious financial straits caused by the old debt. This suit or series of suits involved approximately one hundred and thirty-five thousand dollars, which as collected was distributed among the various funds, state, county, town and school.

AN EARLY BIG LITIGATION AND BREAK.

One of the earliest of the largest litigations, involving many separate suits, was the failure in 1892 and 1893, of Frank Teabout, of Sanborn, or rather, perhaps, of Teabout & Valleau. Mr. Teabout, up to that time, had been one of the largest of the big farmers. His farming operations were generally referred to as "Teabout's ranches." In fact, he had been a large farmer in both Winnesheik and O'Brien counties, handling thousands of acres with great success. He was a man of brains. His personal movement of body was like the tread of royalty. By an unfortunate plunge for him, in 1878, in his older age, he had taken into partnership William H. Valleau, who had even prior to that been a plunger and had broken up on a large scale in Decorah, Winnesheik county, and a full-grown and all-around speculator on the board of trade, with no capital. Stores and grain elevators were soon started in several towns. Mr. Valleau was a rapid-firing gun. It was but a short time until Mr. Teabout's large accumulations of a long lifetime were involved in a mesh of complicated business, including even a twenty-thousand dollar mortgage executed to Field, Lindley & Company, a speculating firm on the board of trade in Chicago, and covering all his farm properties. When the crash came, divers judgments were rendered against the firm and litiga-

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tions involving the various features of the break lasted for years, involving, it was claimed, from one hundred and fifty to two hundred thousand dollars. Many forms of litigation followed, all resulting in a series amounting to one of the large litigations of O'Brien county.

A.P. POWERS VS. COUNTY TREASURER.

This suit was on the record of the court for many years, commencing in 1870. As this suit and its connections was fully gone into in the chapter of the Taxpayers' Associations and other subjects, we need not repeat. It was brought by the Taxpayers' Association to enjoin the payment of the county debt of two hundred and thirty thousand dollars. It was a curious oddity of this suit that while we must rank it as one of the great litigations of the county it never was itself tried in the court. It went to the supreme court on a side question, but was dropped. The injunction was in force two years.

AMHERST H. WILDER.

Amherst H. Wilder was one of the trustees of the Sioux City & St. Paul Railroad and resided in St. Paul. He was in his individual capacity wealthy and as such individual and as trustee, and in his estate and that of his wife, connected with some very extensive records in our courts.

JOHN IRWIN SUITS.

This was one of the very long series of tax title suits brought in the county involving thousands of acres of land in this as well as Clay county, and many parts of Nebraska, but ended with practically no actual trials in this county. John Irwin spent his life in Nebraska City. For some reason, as the facts developed, it seemed that during his long life his one great hobby was to fight, not simply tax titles, but taxes, fighting whether or no and to resist them in every shape. He refused to pay taxes, he refused to redeem them from taxes when sold, and let them go to tax deeds and then fought the tax deeds. This hobby became almost a mania. He held the patent or first fee titles. Notices were served on him for these tax deeds and still he paid no attention. Later on he died. Then his heirs opened up the question that these eccentric hobbies of his were not only hobbies, but that they constituted insanity, and that a tax deed could not be procured against an insane man. These long-drawn-out sundry litigations being in so many

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different courts and covering so many years, though mainly tried in other jurisdictions, met with all sorts of results. They were on the court records of O'Brien county for more than ten years. This large number of suits held on our records for so many years were largely notorious as mere levers or clouds on titles to collect something, notorious in the negative and practically were never tried.

LITIGATION OVER THE SHELDON BANK.

As stated in the article on Banks and Banking, the liquidation of Ed. C. Brown's bank, known as the Sheldon State Bank, was the only bank in forty years that ever broke up and landed its troubles in the courts in this county. In its details, it involved also a series of litigations and court proceedings. Mr. Brown was himself indicted for embezzlement, the trial lasting a week, in which, however, he was acquitted. A receiver was appointed for the bank, in the person of R.W. Ady. The bank had had everybody's confidence. The whole break-up covered, or rather included, property questions relating to about one hundred and eighty thousand dollars, branching out in all its details of banking on both sides of the ledger. Its deposits included sundry large sums from the county and school treasuries, and funds from other banks and various trust funds. These items involved many legal problems as to whether preferences should be given to certain trust deposits or other peculiarities connected with their deposit in the bank, and many of the questions were carried clear to the supreme court of the state. The right to such preferences were not sustained, except as to one small claim collected by the bank the day it closed its doors, the details of the suit being too extensive to go into in this article. On the whole, as a record bunch of litigations it all ranks as one of the leading litigations of the county. The bank paid dividends of about seventy-three per cent.

ISRAEL LASH LAND RECORD AND LITIGATION.

This set of court proceedings covered a large acreage in this county, and was one of the largest in volume and number of pages of record from other state courts in the United States, ever in the county. It was not, however, large litigation in the sense of serious questions submitted to the courts for decision, but in the patient and plodding details needed to complete same, and was all collected and closed in one of the largest, in acreage involved, of the large partition suits of land in the county. Mr. Lash had died, leaving an

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unusually large and complex set of family connections, scattered everywhere, to such an extent as to become overwhelming. It was an action for partition and sale of lands. The heirs and children and brothers and sisters and grandchildren, in one hundred and twenty-two sets of families or divisions of people or groups to be dealt with, involving wills, and administrators, executors, guardians, minors and insane, scattered in a dozen states and in all manners of courts. To make things doubly sure, in addition to the immense court records, the parties finally sent a special agent to see all the parties and got quit claim deeds in each of these large list of families. It was a complete piece of work, however, and stood the test of scores of title examiners during the past twenty-five years.

ELIZABETH STREETER.

This bunch of litigations, or rather lack of litigations, was one of the oddities of court proceedings. In 1897 Elizabeth Streeter leased a half section of land in Omega township, with a proviso in the lease giving her an option to buy it at any time during the lease at a given price. Thus it can be seen she had absolutely nothing invested. She soon skillfully had it circulated broadcast, both by word of mouth and in the papers, that a very wealthy German lady was opening up an expensive set of farming operations. As if by magic, it soon piled up a sort of mountain-high credit. She had the appearance of the most sublime rustic innocence, that captured bankers, business men and everybody. She understood, in fact, all branches of business methods. She captured the very elect. She attended all the stock sales and bought extensively. She signed notes and papers in plenty. She bought fine teams of horses, and cattle and even down to ducks and chickens, grain, farm machinery, built buildings, fences, all on an elaborate scale. Of course the bubble broke. All sorts of suits and attachments followed. Still she held her nerve. She was arrested, indicted and landed in jail. She would walk directly away from the sheriff and out and away from the court, with utter disregard to court proceedings. Her trial was never even finished. She feigned sickness and escaped entirely, but was soon heard of in the same business in other places. In the meantime, she walked away from this county with her accumulations, amounting to thousands. Her apparent innocence outgeneraled the best business men in several counties.
One of the large litigations in the county in the early days was over the establishment of the independent school district of Sheldon. The city of Sheldon, being exactly on the county line between O'Brien and Sioux, it can

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be seen that were the town to be confined in its landed territory for taxation purposes to that reasonable limit, only that the district could extend eastward in O'Brien county, it could not secure enough funds to build and equip an adequate school for such a prospective town. Happily the law of Iowa provided for just such a contingency, as common sense would say it should.
The law seemed perfectly plain. But this did not appear to be plain to the Sioux county officials or people. They contested the right very energetically through all the courts, but the town of Sheldon finally won out and has ever since enjoyed sufficient territory on both sides of the line.
The county has had no feuds, no unconquerable plaintiffs or defendants, or at least very few, no clannish citizenship, or trouble causing uprisings that have lasted through the generations. The homestead and squatter litigations were the longest and most numerous, but even these litigations were normal and natural and grew out of real questions. The people of the county may be said to be satisfied with the local administrative justice, its courts and its litigation. Nineteen-twentieths of its people are engaged in some actual independent occupation, each individual acting for himself. The county has no bodies of people dependent on one factory or separate concern. The county never had a strike or its equivalent, for the reason that it never had any of the conditions for a strike. All this has kept its litigation healthy and natural.

QUIETING TITLE LITIGATION.

The many early tax deeds, the bogus swamp land deeds, and title clouds by possession and otherwise, have been the cause of many quieting title suits. For instance, Herman Greve, who purchased many thousands of acres at the large tax sale of 1874 and other years, procured tax deeds to about four thousand two hundred acres by tax deed in 1879, bringing thirty-five separate suits to quiet title in one term of court.
The county, as organized and managed by the board of supervisors, has been very fortunate in not having other than normal litigations, none overwhelmingly serious. Its criminal trials, in results and in costs, have been natural and reasonable in amount. It has never had a criminal suit where the costs have reached the sum of fifteen hundred dollars, exclusive of attorney fees. Its investigations, for instance, by coroners and justices of the peace, looking in the direction of murder and manslaughter, scarce reach a half dozen in the forty years, and the actual trials not that number. The county has never yet had in its criminal litigation what might be called a "swamper," either in amount of costs or excessive length of time taken by the court.

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The claims for damages against the county thus far have been minor in importance, and it has never had a judgment rendered against it as yet reaching above a few hundred dollars. Indeed, in both damage and criminal suits its expenses have been nominal, as compared with the fate of some other counties.
The people of the county have had considerable litigation in the federal courts, over the overlapping lands, as we have recited in that chapter. The fact that one or other of the parties in suits have been nonresidents of the state has transferred many cases from the district court at Primsrhar to the United States court at Sioux City. This has been especiallv true in many cases against the railroads, the roads showing that they were nonresidents, by reason of having been incorporated in another state, and that the amount involved entitled it to go there.

REFEREE IN BANKRUPTCY.

The United States court at Sioux City, since 1898, has appointed and maintained a referee in bankruptcy residing in this county. He hears all petitions in bankruptcy, and takes all evidence, and passes upon all contested questions except that of discharge in bankruptcy, which must be done by the court at Sioux City. It becomes quite a court within itself.
The following persons have been appointed and filled this office of referee in bankruptcy, and who have presided over that court: J.L.E. Peck, from August, 1898, to September. 1903; George T. Wellman, from July, 1903, to July, 1911; Spencer A. Phelps, from 1911 to the present time.
During Mr. Peck's period of about five years there were brought and tried ninety-one bankruptcy proceedings. A corresponding number have been filed and heard during the period of the other referees.
The records of the referee's court are all finally deposited with and become a part of the proceedings in the United States district court at Sioux City or Dubuque. The referee handles these bankruptcies very much as an estate is handled in a probate court, and makes all orders relating to same. Trustees, however, are appointed by the referee, who conserve the properties and distribute the funds under orders by the referee, all matters of which may be reviewed on appeal to the court itself at Sioux City. Some large properties, reaching as high as forty thousand dollars and upwards, have been handled. One plunger of a merchant, or rather perhaps a transient merchant, at Sutherland in 1899 was refused a discharge in bankruptcy until

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he should pay into the court the sum of fifteen thousand dollars he was adjudged to be holding back from the creditors, which item was appealed to the United States court at Sioux City and the ruling of the referee sustained. Other items of like import and size, and of various phases on the lines of bankruptcy, have been before the court.
Referring again to general litigation in the county, the jury trials have run from three to five per term of court, or perhaps a dozen per year, occasionally fifteen to twenty, or about seven to eight hundred jury trials in the grand total of forty years.
So far in the history of the county during the forty years, and up to January 1, 1914, the suits and numbers of proceedings brought have numbered as follows: In the old circuit court, abolished in 1886. there were brought one thousand four hundred and fourteen cases, and transcripts to that court amounted to thirty-nine. In the district court to January 1, 1914, and which court has existed for the whole period of the county, there have been seven thousand nine hundred and sixty suits and proceedings, and one thousand nine hundred and eighty-six transcripts. In the probate branch of the district court during the whole period of the county there have been, up to January 1, 1914, one thousand one hundred and thirty-four estates, guardianships and kindred proceedings. In grand total of all proceedings there have been twelve thousand five hundred and thirty-three up to January 1, 1914.
Thus it can be seen that fully three-fourths of all actual material court work in the county is done by the judges. Of all that large number of suits and causes of action in the county only about seven to eight hundred have been tried by a jury. No single case in open court in the county has ever exceeded about nine days in actual trial. It may be truly said, therefore, that the county has never been seriously cursed with any Harry K. Thaw, Jarndice vs. Jarndice, or McNamara trials, as in other places.

ESTATES.

Of the large estates and guardianships the following are among the larger of the county: Jonathan A. Stocum, William Harker, Elizabeth Harker, John Metcalf, Henry C. Lane. E.Y. Royce, Thomas Nott, E. M. Brady, James McKeoen and others.
To sum up briefly, the litigation in the county has mainly consisted of normal law suits naturally arising, with conclusons reached. We have not

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attempted details and perhaps have not recited all or even the most important litigations. Among all these thousands of proceedings, as can be seen, it would-be difficult to give a brief review in the space allotted in this article; it would need a book to enter into even a considerable number. We have, however, given enough to show the general outline of the litigation in O'Brien county.
The justices' courts of the county are much the same as found in other counties in the state. This, however, is the people's court, with jurisdiction up to one hundred dollars, and by consent of parties up to three hundred dollars. It comes in touch in each neighborhood with the citizens in the several townships. As will be seen from figures above given, there have been in all two thousand and twenty-five transcripts filed in the district court. A large number, perhaps a full half, have been transcripts or appeals from the justices' courts of the county, the remaining transcripts being transcripts of judgments and proceedings from the courts of record in other counties. The above numbers, however, would only be a small part of the actual trials and judgments rendered in those courts, a large majority of whose trials and hearings become final.

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