13 Mont. 476 | Mont. | 1893
The question for this court to determine is whether or not the answer in this case states facts sufficient to constitute a defense to the action. The answer admits the material allegations in the complaint, and seeks, in a measure, to state facts in avoidance. After pleading in extenso the proceedings in the land department, and the contest and decision therein, in relation to the land mentioned in the pleadings, the appellant seeks in this case to retry the facts
We are of the opinion that the decision of the secretary of the interior pleaded in this cáse is final and conclusive until reversed in a direct proceeding for that purpose, aud cannot be collaterally attacked in this action. In speaking of the decisions of the laud department in such cases, in Steel v. Smelting Co., 106 U. S. 447, Mr. Justice Field, delivering the opinion of the court, says:
“In Johnson v. Towsley, 13 Wall. 72, the effect of the action of that department was the subject of special consideration; and the court applied the general doctrine ‘that when the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others’; and said, speaking by Mr. Justice Miller: ‘ That the action of the land office in issuing a patent for any of the public land subject to sale by pre-emption, or otlierAvise, is conclusive of the legal title must be admitted under the principle above stated; and in all courts and in all forms of judicial proceedings where this title must control, either by reason of the limited powers of the court or the essential character of the proceeding, no inquiry can be permitted into the circumstances under which it was obtained.’
“ In French v. Fyan a patent had been issued to the state of Missouri for swamp and overflowed land, under the act of September 28, 1850, chapter 84. In an action of ejectment by a party claiming title under a grant to a railroad company, which would have carried the title if the land were not swamp and overflowed, parol testimony was offered to prove that it Avas not land of that character, and thus to impeach the validity of the patent. The court beloAv held that the patent concluded the question, and rejected the testimony. The case being brought here, the ruling was sustained. This court, speaking through Mr. Justice Miller, said: ‘We are of opinion that in this action at law it would be a departure from sound principle, and contrary to well-considered judgments in this court and in others of high authority, to permit the validity*485 of tlie patent to the state to be subjected to the test of the verdict of a jury on such oral testimony as might be brought before it. It would be substituting the jury, or the court sitting as a jury, for the tribunal which Congress had provided to determine the, question, and would be making a patent of the United States a cheap and unstable reliance as a title for lands which it purported to convey/ (93 U. S. 169, 172.)
“In Quinby v. Conlan (decided at the last term) we said: ‘It would lead to endless litigation and be fruitful of evil if a supervisory power were vested in the courts over the action of the numerous officers of the land department, on mere questions of fact presented for their determination. It is only when those officers have misconstrued the law applicable to the' case, as established before the department, and thus have denied to parties rights which, upon a correct construction, would have been conceded to them, or where misrepresentations and fraud have been practiced, necessarily affecting their judgment, that the courts can, in a proper proceeding, interfere and refuse to give effect to their action. On this subject we have repeatedly and with emphasis expressed our opinion, and the matter should be deemed settled/ (104 U. S. 420, 426. See, also, Vance v. Burbank, 101 U. S. 514.) .... So with a patent for land of the United States, which is the result of the judgment, upon the right of the patentee by that department of the government to which the alienation of the public lands is confided, the remedy of the aggrieved party must be sought by him in a court of equity if he possess such an equitable right to the premises as would give him the title if the patent were out of the way. If he occupy, with respect to the land, no such position as this, he can only apply to the officers of the government to take measures in its name to vacate the patent or limit its operation.” (See Silver Bow Mining and Milling Co. v. Clark, 5 Mont. 378.) There seems to be no conflict in the authorities on this point.
The appellant insists that it complied with its contract by executing and delivering to respondent its deed to the land in accordance with the terms of its contract of sale. The appellant’s contract required it to make aud deliver a deed to the respondent, and stipulated that “ the said deed shall convey the.
In section 414, Waterman’s Specific Performance of Contracts, we find the doctrine to be stated thus: “As a general rule, it makes but little difference what the precise terms of the contract are, whether the vendor agrees to make title, or a good title, or to make a deed or a warranty deed, if it appears that he is negotiating to sell at a sound price, to be paid or part paid at the conveyance. In such cases, usually, the vendor, without a nice examination of words, is understood to agree to furnish a good title, and the vendee cannot be put off with merely a good’ deed.....An agreement to give a ‘good deed’ is not simply a promise to execute a deed in legal form with proper warranty, but a deed good and sufficient both in form and substance to convey a valid title to the land.” And see authorities cited in note to this section.
Did the appellant execute and deliver to respondent such a deed as conveyed the title to the land it contracted to deed? We think not. By appellant’s own showing the land department had decided that it had no title, and, as a matter of course, it did not convey, and could not convey, any title to the land by the deed it executed and delivered to respondent.
Nor do we think that the position assumed by appellant, that respondent, having accepted the deed from appellant, was compelled to wait until he was ousted, and then sue on the covenants of the deed, is tenable. The respondent got nothing by the deed from appellant. When it was determined by the proper tribunal, as is the case here, that appellant had no title to the land, and could not comply with its contract to convey the title, then and there was a breach of its contract that authorized respondent to sue, without being ousted or surrendering possession of the land or deed. (Marshall v. Caldwell, 41 Cal. 611; Stone v. Fowle, 22 Pick. 166.) We are of the opinion that the answer did not state facts sufficient to constitute a defénse.
Affirmed.
