35 Am. St. Rep. 259 | Idaho | 1891
This is an action in ejectment, brought by the plaintiff against the defendant, to recover possession of certain real estate situated in the county of Bear Lake, in this state. The complaint is the ordinary one in an-action of ejectment. The answer is a general denial of the allegations of the complaint, and sets up that defendant is in possession of said land under a homestead entry. The pleadings are not verified. The case was heard in the court below upon the following stipulation of facts: “In the above cause it is stipulated and agreed that the facts are as follows: That -about the month of August, 1884, Lauritz Neilson made pre-emption declaratory statement No. 1362, embracing the land in controversy in this cause, and on the first day of October, 1885, made his pre-emption entry and final proof for the land embraced in his declaratory statement, being the lands in controversy in this case and in the ease of S. P. Sorrenson v. Emil Meyers, post, p. 61. That he, on that day, purchased said land, and paid $200 therefor, and took patent certificate for the same. That on the twenty-eighth day of October, 1886, said Lauritz S. Neilson, together with his wife, Catharine Neilson, by deed of conveyance duly executed and recorded, conveyed the lands described in the complaint to the plaintiff, Thomas W. Jones. That said Thomas W. Jones has never conveyed any of said land to any other person. That said, conveyance to Thomas W. J ones was made in consideration of the sum of $200, which had been paid in the month of June or July, 1886. That said purchase was made in good faith by said purchaser on June 7, 1886. That the defendant filed an affidavit in the United States land office at Oxford, Idaho, charging that Lauritz S. Neilson had failed to comply with the requirements of the pre-emption law in the matter of residence and improvement of said land, previous to his final proof and payment therefor. That Neilson was notified by the officers of the United States land office that a day had been set for hearing,
It is admitted that Lauritz S. Neilson, the grantor of plaintiff, entered the land in question under and by virtue of the pre-emption laws of the United States, and that at the time he made his final proof and received his final receipt or certificate from the receiver he had not resided upon said land six months, •and did not reside thereon at the time of making said final proof. It is conceded by appellant that the final certificate was ■procured illegally and fraudulently, but appellant contends that the land department of the United States has no authority to ■cancel an entry where final certificate has been issued, and the land described therein sold to such a purchaser as the stipulation of facts shows appellant to be. It is admitted that respondent entered a contest to set aside Neilson’s entry in June, 1886. It is also admitted that appellant purchased the land in ques-
Appellant contends that the supreme court of tbe United States in Myers v. Croft, 13 Wall. 291, holds that a sale by a preemptor, after entry and final proof and the issue of a final certificate to a Iona fide purchaser for a valuable consideration, conveys to the purchaser a valid, legal title. The court in that case in no respect intimates that the grantee of a pre-emptorwould get any better title than his grantor had, or that any title would pass if the grantor had not in good faith, and in full compliance with the requirements of the pre-emption law, entered the land eonvsyed. The concluding portion of said' opinion indicates very strongly the contrary opinion. The court, says: “If it had been the purpose of Congress to attain the object contended for, it would have declared the lands themselves unalienable until the patent was granted. Instead of this, the legislation was directed against the assignment or transfer-of the right secured by the act, which was the right of preemption, leaving the pre-emptor free to sell his land after-entry, if at that time he was in good faith the owner of the land, and had done nothing inconsistent with the provisions of
Chief Justice Tripp, of Dakota, in the case of United States v. Edward H. Dudley, 1887 (not reported), rendered an exhaustive opinion as to the authority of the land department to cancel a final certificate issued to a pre-emptor, in which he reviews and comments upon numerous decisions of the supreme court of the United States and decisions of the highest courts of many of the states and territories, and arrives at the following conclusion, to wit: “I am clearly of the opinion that the supervisory and appellate powers vested in the Secretary of the Interior, and the commissioner of the general land office, under' his direction, gives them the right to examine all acts of the register and receiver. In matters of fact left to the determination of the local officers, the jurisdiction of the secretary and commissioner may be exercised by appeal and a re-examination of the fact themselves, or by examination of their action, and requiring them again to examine the questions of fact involved, and in all cases to supervise the purely administrative or executive acts of the local officers.” The power of supervision given the secretary and commissioner is a general one over all the acts of the register and receiver. There is no exception made in the matter of the issuing of final certificates; and, if the position here contended for be the correct one, to wit, that the commissioner must issue a patent at once upon the