48 App. D.C. 547 | D.C. Cir. | 1919
Lead Opinion
delivered the opinion of the Court:
The decision here must turn upon the interpretation to be placed upon the following proviso to sec. 7 of the Act of Congress of March 3, 1891 (26 Stat. at L. 1095, 1099, chap. 561, Comp. Stat. 1916, §§ 5116, 5113, 8 Fed. Stat. Anno. 2d ed.
It is conceded that no contest or protest or any proceeding whatever wras directed against this entry within two years after the issuance of the final receipt. But it is urged that, inasmuch as the proceedings for cancelation finally instituted were based upon alleged fraud, the action is not barred by the limitations of the foregoing statute. Many cases are cited by respondents to the effect that proceedings in the Land Office to acquire title to public lands may be opened and set aside for fraud at any time prior to the issue of patent. But in no case has such a ruling been made in the face of a limitation terminating the Secretary’s jurisdiction.
The provision of the statute before us was considered by this court in the case of Hoglund v. Lane, 44 App. D. C. 310. The .facts in that case were substantially the same as in the case at bar. There, as here, cancelation of the entry was sought “on account of nonresidence and lack of cultivation.” The facts relied upon in the answer to sustain the jurisdiction of the department were substantially tbe same in both cases. The present case is differentiated, however, by the averment that, by reason of the alleged acts, the final receipt was fraudulently procured.
In any event, the court below properly sustained the demurrer. Accepting the contention of counsel for the government that the Department had jurisdiction to reopen the case, it could do so only on the ground of fraud discovered after the Statute of Limitations had run. In this, the answer fails to respond to an elementary rule of pleading, since no excuse is assigned for failure to discover the alleged fraud within the
The vague and evasive language- here employed to set up fraud, without any attempt to justify the delay, is indicative of a fictitious defense. The facts relied upon are not of such a character that their discovery need involve the Land Department in any difficulty whatever. Efficient administration would seem to dictate an inquiry into the facts before the issue of a final receipt, which would disclose fraud, if it existed, more readily and much more accurately than to negligently allow the investigation, as in this instance, to be postponed for years. The Department has at its command officials, presumably capable, whose duty it is to make such investigations; hence, there is no excuse for failure to set forth the impediments, if any in fact exist, to an earlier discovery of the alleged fraud.
But treating the charge of fraud in the present case as completely distinguishing it in respect of the issues of fact from the Hoglund Case, we think respondents’ case is not strengthened. We there held the limitation was jurisdictional, and a bar 'to any action by the Department against an uncontested entry, after the lapse of two years, and that nothing remained for the Department but the mere ministerial act of issuing a patent.
In tho Hoglund Case, construing the statute, we said: “It is clear that the above proviso is jurisdictional in its operation,
On appeal (Lane v. Hoglund, 244 U. S. 174, 61 L. ed. 1066, 37 Sup. Ct. Rep. 558) the Supreme Oourt, affirming this court, said: “Looking, then, at the statute in the light of all that bears upon its purpose and meaning, we think it certainly and unmistakably lays upon the Secretary of the Interior, as the head of the Land Department, a plain duty to cause a patent to be issued to a homestead entryman whenever it appears, as concededly it did in this instance, that two years have elapsed since the issue of the receiver’s receipt upon the final entry, and that during that period no proceeding has been initiated or order made which calls in question the validity of the entry. In the exercise of its discretion Congress has said, in substance, by this statute that for two years after the entryman submits final proof and obtains the receiver’s receipt the entry may be held open for the initiation of proceedings to test its validity, but that if none such be begun within that time it shall be passed to patent as a matter of course. Thus, in a case like this, where, according, to the conceded facts no proceeding was begun within the prescribed period, there is no room for the exercise of discretion or judgment, but on the contrary a plain duty to see that the entryman receives a patent.”
The purpose of Congress in enacting- this limitation, as reviewed at length in the opinion of the Supreme Court, was to clear the Land Department of large numbers of entries which “were suspended by the General Land Office on vague and in
This proviso, in conjunction with the next succeeding section of the act, discloses a design on the part of Congress not only to prevent delays in the Land Department and in the course, but to establish the security of patent titles. Section 8, among other tilings, provides “that suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents.” This placed a limitation upon the bringing of suits in equity to annul patents, except in cases based upon fraud, in which the limitations of the statute do not begin to run until the discovery of the fraud. Exploration Co. v. United States, 247 U. S. 435, 62 L. ed. 1200, 38 Sup. Ct. Rep. 571. The act indicates a clear intention on the part of Congress to fix a limitation upon the jurisdiction of the Land Department for any reason whatever to question the validity of an entryman’s right to a patent, and a like limitation within which the patent may be annulled in a court of equity having jurisdiction of the res.
No reason has been advanced that would justify us in distinguishing the interpretation to be placed upon the statute in this case from that placed upon it in the Soglund Gase. Indeed, the Department was so convinced, until the intervention of the Agricultural Department through the Department of Justice; and the. Department of Justice, out of abundant caution, has already instituted a suit in equity, apparently intending, if possible, to secure a judicial cancelation of the final receipt in advance of a final mandate compelling the issuance of a patent.
But it is urged that the issuance of a writ in this case would amount to a perpetuation of a fraud. Of course, mandamus
The judgment is affirmed with costs. Affirmed.
Concurrence Opinion
concurring specially:
The act of Congress under consideration, according to a decision of the Supreme Court of the United States, is a “statute of limitations and repose.” Lane v. Hoglund, 244 U. S. 174, 178, 61 L. ed. 1066, 1067, 37 Sup. Ct. Rep. 558. Being a statute of limitations there is an implied condition therein that in' case of fraud it shall not commence to run until the fraud is discovered. “A statute of limitations,” says Judge Story, “ought not, then, to be so construed as to1 become an instrument to encourage fraud, if it admits of any other reasonable interpretation; and cases of fraud, therefore, form an implied exception, to be acted upon by courts of law and equity, according to the nature of their respective jurisdictions.” Sherwood v. Sutton, 5 Mason, 143, Fed. Cas. No. 12,782. The Supreme Court of the United States in construing a statute of limitations, sec. 8 of the act before us, approved the language of Judge Story, just quoted, and said: “The cause of action did not
I do not overlook the principle that a mandamus will not be awarded “to compel the performance of a wrong or to confirm or perpetuate a fraud” (Lane v. Duncan Townsite Co. 44 App. D. C. 63, 67, 245 U. S. 311, 62 L. ed. 311, 38 Sup. Ct. Rep. 99); and if there, was before us such evidence of fraud as we could consider I would be of the opinion that a mandamus should be denied. But a demurrer admits only such facts as are well pleaded (Commercial Bank v. Buckner, 20 How. 108, 125, 15 L. ed. 862, 868), and the facts set forth in the answer are not well pleaded,: — are not pleaded so as to constitute a defense, — and therefore must be put out of sight and the case considered as if they were not in it. This being so, the judgment awarding the writ should be affirmed. Affimied.
A petition for allowance of a writ of error from the Sup wane Court of the United States was granted May 26, 1919.