54 Kan. 274 | Kan. | 1894
The opinion of the court was delivered by
This was an action to foreclose a mortgage on a tract of real estate in Kingman county that had been given to secure a loan of money. The land in question was a portion of the Osage Indian trust and diminished reserve, and on July 10, 1882, Sarah Alverson, claiming the right of preemption, made a cash entry of the same at the local United States land office at Wichita. Oh July 20, 1882, she conveyed the land by deed of general warranty to H. L. Nye, who later conveyed the same to the parties who executed the mortgage in question. James E. Coffman, who was made a defendant, questioned the validity of the mortgage, and alleged that those who executed it had no title to the land. He alleged, and offered proof to show, that on August 20, 1884, he initiated a contest of the entry, made by Sarah Alverson, upon the ground that Sarah Alverson was known as Phamelia S. Coovey, and under that name had made a prior filing upon other land in that vicinity; that she had not resided on the land, but that it was used as a sheep range by H. L. Nye,
It appears that on July 11, 1885, Nye, who was the grantee of Sarah Alverson, conveyed the land to James A. Rusk, who, in April, 1886, mortgaged the same to the plaintiff in error. As will be seen, the mortgage was executed after a final receipt had been secured by Sarah Alverson, but before the patent was issued, and also that it was executed after a contest had been initiated by Coffman, and while it was pending. The trial court held that, the entry of Sarah Alverson having been canceled and set aside, the mortgage executed by her grantee was invalid. There was a further finding that Coffman was the owner of the land, and a decree was entered canceling the plaintiff’s mortgage, and removing the cloud from the title. As against this ruling, it is contended that the action of the land commissioner in canceling the Alverson entry was without authority, and that the validity of his action may be litigated in a court of justice. It is within the power of the executive officers of the United States land department to cancel such an entry before the patent issues thereon, and the mortgagee of the entry man, after a final receipt is given and before the patent issues, takes his mortgage subject to the supervisory power of the land officers. (Swigart v. Walker, 49 Kas. 100; Fernald v. Winch, 50 id. 79.) The power to correct a mistake or to cancel an unlawful entry continues in these officers until the legal title passes from the United States. In determining such questions, the laud officers aré invested with authority to ascertain the facts upon which the rights of the claimants depend, and their decision upon all questions of fact is conclusive upon the