64 Wis. 603 | Wis. | 1885
It is substantially alleged in tbe complaint that the plaintiff settled upon the land in dispute as a homestead claimant under the laws of the United States, paid the amount required bylaw, and complied with the requirements of the law by continued residence and cultivation, so as to entitle him to the final certificate therefor, and that he presented to the land office authorities due proof of the same; and that by a final decision of the secretary of the interior upon such proof he was denied the right to said certificate; but that he has remained and still is in the possession and occupancy of said land. In respect to the defendant it is alleged that he intruded upon said land by force, regardless of the right of the plaintiff as aforesaid, and paid the amount required to be paid by a homestead claimant of said land, and obtained a certificate therefor, and now claims that he is entitled to all the rights of a •homestead claimant thereof, and that at the proper time he will be entitled to a patent of the United States to the same. It is further alleged that when the said plaintiff presented his proofs for the purpose of obtaining the final certificate for said land as aforesaid, the said defendant contested his right to the same, and by perjury and fraud in his evidence caused the secretary of the interior to decide against the claim of the plaintiff so made and proved, and to declare said claim void, and to cancel the same, and thereupon made said forcible and fraudulent entry upon said land, and by fraud and perjury obtained a certificate therefor as aforesaid. This land belongs to the United States, and was subject to homestead settlement under the laws thereof, and the title still remains in the United States, subject to the claim of the plaintiff as aforesaid; and the plaintiff in effeot alleges that he has done everything, and performed
If the courts of this state have jurisdiction in such a case, it is not perceived what effectual remedy could be administered. There has been an adjudication of the land office department against the claim of the plaintiff; and the defendant has settled on the land as a homestead claimant, and obtained the first certificate as such. That certificate gives the defendant no right to the land, and he must thereafter perform all of the conditions of the homestead law before he will be entitled to a certificate upon which the patent can be issued. The law does not provide for issuing any certificate upon such entry, but probably the rule of practice of the land office provides for a certificate of some sort, as evidence that the homestead claimant has paid the money required, and entered on the residence and cultivation of the land preparatory to such continued residence for five years, and such cultivation as the law makes a prerequisite to the certificate upon which the patent is to issue. Sec. 2290, E. S. of U. S., prescribes how the applicant may make his first entry. He makes an affidavit that he is the head of a family, or twenty-one years of age, or has performed service in the army or navy, and that his application is for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not for the benefit of any other person. Upon filing such affidavit with the
The defendant has made and filed such affidavit, and paid the initiation fee, and entered upon the settlement of the land. He is yet to secure a homestead therein by residence and cultivation. Tie has yet secured no right to the land, but a mere privilege or permission to enter upon it for the purpose of obtaining title to it by the performance of such conditions. Tie may never secure or be entitled to the land. The title still remains in the government and may so remain.
First. What right or claim to said land or interest in it has he that he could release to the plaintiff according to the prayer of the complaint? Has he the possession? So has the plaintiff. If he is an intruder or trespasser without legal right (and he has no legal right if the plaintiff is entitled to the patent of the United States, as he claims), then, the plaintiff’s remedy, if he has any, is in the proper possessory action at law. The defendant’s right of entry upon the land is a legal right, if he has any. If he has none, then he has no right or title to release. If he has a legal right to so enter, then neither a court of equity nor of law can extinguish or cancel it, or adjudge its release to another. But if all the right ■ the defendant claims is released to the plaintiff, it would not make his title or right any better. It is apparent that the remedy sought by this part of the prayer would be ineffectual and of no benefit
Second. The other part of the prayer is for “judgment that the plaintiff has complied with the homestead law and is entitled to said land.” At the proper time the plaintiff attempted to make and present his proofs of the requisite residence and cultivation of the land in order to obtain the final certificate and the patent of the United States to said land; and then it seems that his right thereto was contested, and proof was offered that he had changed his residence and abandoned said land more than six months at one time during such period, and the secretary of the interior deemed such proof satisfactory as to such change of residence and abandonment, and decided that he had no right to such certificate and patent, and thereupon the said land reverted to the government, according to sec. 2297, E. S. of U. S.
It appears by the complaint that the defendant was sworn as a witness at such contest before the land officers, and that his testimony tended to prove that the plaintiff had so changed his residence and abandoned said land for more than six months at one time during such period, and that the secretary of the interior considered and weighed such evidence of the defendant in making up his opinion in the case, and that said evidence and the absence of the testimony of the plaintiff’s wife rejected by him, resulted in a different decision of the secretary of the interior than would have been made had Mrs. Empey’s evidence been received and the defendant’s evidence been rejected. It is alleged that said testimony of the defendant' was false,
.By the same authorities there should have been made by the plaintiff every reasonable effort to have obtained testimony to contradict the false testimony of the defendant before the land officers, and diligence must be shown to have been used in procuring such testimony. There should have been made an effort to reopen the case, and for its rehearing, upon the showing that such testimony was false and perjured and that the plaintiff was ready and able to prove the same. On a motion to open such a judgment and for rehearing these things must be shown. Stowell v. Eldred, supra.
The case so far has been treated as if the court had jurisdiction in such a case. It would seem to be elementary and axiomatic that a court of equity will not assume jurisdiction of a cause in which adequate relief cannot be given. If the court in such a case should decide that the decision of the secretary of the interior was wrong and based upon perjured testimony, and that the plaintiff was entitled to the final certificate and the patent for the land, and go further, even, and reverse, set aside, vacate, or annul his decision and judgment, how could it be enforced, and what would be its effect? Neither the United States nor the executive departments of the government are amenable to the state courts. The decision would still stand and be enforced, and a patent would not be issued to the plaintiff, and might be issued to the defendant upon his final proofs.
By the Court. — The order of the circuit court is affirmed.