6 Kan. App. 707 | Kan. Ct. App. | 1897
This was an action'brough by Thomas Krutz, one of the plaintiffs in error, to foreclose a mortgage against Edward Cooke and Caroline M. Cooke, also plaintiffs in error, and Francis Blakely.
The petition was in the ordinary form of such petir tions, describing a mortgage made, July 1, 1880, except that it alleged that judgment had already been had against the makers, Edward Cooke and Caroline M. Cooke, on the bond and coupons thereby secured, on Apri 11, 1885; and it alleged that said defendant Francis Blakely, among others, had or claimed some interest, right or title to the re.al estate, but that said
Edward Cooke filed as his answer in said action a cross-petition against his codefendant Francis Blakely. Blakely answered the petition by a general denial and also by the averment that he was the owner of the mortgaged premises under a patent issued to him by the United States. He also filed an answer to the cross-petition of Edward Cooke, alleging the cancellation of Cooke's prior entry by the Commissioner of the General Land Office on a contest proceeding instituted by said Blakely, and the issue of a patent to himself for said land.
To this answer of Blakely, the plaintiff Krutz filed a'reply, in which he set up all the proceedings in the local and general land offices relating to the entries of the defendants Leonard W. Cooke and Francis Blakely, and in the contest case.
The trial court rendered judgment upon the pleadings in favor of Blakely and against the plaintiffs in error. From the somewhat voluminous pleadings, the following statement of facts is extracted :
On July 23, 1879, Leonard W. Cooke, who then possessed the qualifications of a pre-emptor, filed in the United States land office at Wichita, Kan., a declaratory statement of his intention to purchase the tract of land described in plaintiff's petition, which was a part of the Osage Indian Trust and Diminished Reserve Land, and on May 21, 1880, made final proof therefor as to his settlement upon and improvement of said land in conformity with the law, paying therefor the purchase money, two hundred dollars, and receiving a receipt and certificate of purchase in the usual form for the same. On the same day, he conveyed the said tract to Edward Cooke by warranty deed,
On August 25, 1880, Blakely commenced, in the land office at Wichita, a contest to cancel and set aside the receipt and certificate of entry held by Leonard W. Cooke, the notice thereof being served on his transferee, Edwkrd Cooke, only. The notice was. issued and served on the ninth day of September, 1880. Afterward the contest proceedings were had in said land office, and a decision was rendered therein, by the register and receiver canceling the entry of said Leonard W. Cooke. The latter appealed to the. Commissioner of the General Land Office, who, on. January 30, 1882, affirmed the decision of the local-officers. From the letter of the Commissioner affirming the decision, it appears that the contest hearing occurred on October 26, 1880; that the parties in interest were present in person or represented by counsel, and that the Commissioner found, as the
Blakely has filed a cross-petition in error, in which he complains of certain rulings and orders made by the trial court at a term prior to that at which the case was finally disposed of. We shall pass over these objections and consider only one question in the case ; that is, Would Blakely have been entitled to the judgment in his favor if all the facts alleged in the pleadings had been proven?
Plaintiffs in error contend that the cancellation of Cooke’s entry was erroneous for three reasons, to wit: First, that it was done without notice to Krutz, and without any knowledge by him of the institution or
I. Section 2263 of the Revised Statutes of the United States of 1878 provides that, prior to any entry of a tract of land, a pre-emption proof of settlement and improvement, required by section 2259, shall be made to the satisfaction of the register and receiver of the land district in which such land lies, agreeably to such rules as may be prescribed by the Secretary of the Interior; and, also, that “all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.” Section 2273 provides that all questions as to the right of preemption arising between different settlers shall be determined by the register and receiver of the local land office, and that appeals from the decisions of such officers shall be made to the Commissioner of the General Land Office, whose decision shall be final unless appeal therefrom be taken to the Secretary of the Interior. Section 2283 provides that the Osage Indian Trust and Diminished Reserve Land in Kansas shall be subject to disposal, for cash only, to actual settlers, in accordance with the general principles of the Pre-emption Laws, under the direction of the Commissioner of the General Land Office.
It is evident that by these statutes Congress intended to confer upon the heads of the land department all needful powers in respect to the disposition of the public lands and of the Osage Indian lands held in
II. The return of the purchase money was not a condition precedent to the cancellation of Cooke’s entry, nor would repayment be authorized in a case where the entry was canceled on account of false testimony in the final proof. Walsh’s Case, 5 Land Dec. 319; Woodward’s Case, 2 id. 688; Reynolds’ Case, 12 id. 131; Hatch’s Case, 12 id. 607.
III. The contention that the cancellation of Cooke’s
The decision of the land officers upon questions of fact in a contest case is conclusive upon the parties and is not subject to collateral attack. See Steel v. Smelting Company, 106 U. S. 447, and cases there cited; Aurora Hill Con. Min. Co. v. Eighty-Five Min. Co., 34 Fed. Rep. 515.
The judgment of the trial court is affirmed.