McCord v. Hill

111 Wis. 499 | Wis. | 1901

Lead Opinion

The following opinion was filed October 3Ó, 1900:

Dodge, J.

1. The general rules of law governing the controversy here presented are well settled, and not seriously controverted. They may be summarized as follows: The United States land laws, as between individuals, are deemed to be largely self-executing. If those laws confer a right to the land upon the existence of certain facts, then that right arises when the facts are found to exist by the proper officers of the government. The ascertainment of the facts upon which the land laws are to act is vested in the executive branch of the government, and in that particular department presided over by the secretary of the interior, and under him by the commissioner of the general land office. When such facts are ascertained 'and decided by the executive officers, the rights of the parties are those conferred by the law. If, therefore, the secretary of the interior issue to one person a patent, when upon the facts decided by him another party is entitled to the land, ultimate rights will not be changed thereby, but the holder of the patent will by the courts be considered to hold in trust for him to whom the land in equity belongs. Moore v. Robbins, 96 U. S. 530; Marquez v. Frisbie, 101 U. S. 473, 476; Lee v. Johnson, 116 U. S. 48; Sanford v. Sanford, 139 U. S. 642; Stewart v. McHarry, 159 U. S. 643; Parsons v. Venzke, 164 U. S. 89; Hawley v. Diller, 178 U. S. 476.

In this case it is claimed that, upon the facts found and decided to exist by the executive officers, Jacobus became, by virtue of the act of June 3, 1896, vested with the right to the land,— complete equitable ownership thereof; that the refusal of the secretary of the interior to recognize this right, and his decision permitting the defendant, Hill, to enter upon the land, and awarding him a patent therefor, were mere mistakes of law, and ineffectual save to confer ostensible legal title upon Hill, which can rise no higher than that which the government then had, namely, a nakéd legal title in trust for Jacobus, the true owner, or his assigns. Wis. Cent. R. Co. v. Price Co. 133 U. S. 496, 506.

The question before us on this complaint is whether it appears clearly, and without substantial doubt, that the facts entitling Jacobus to the land not only existed, but were decided to exist by the executive officers, and that the action of the secretary was predicated, not upon a decision of facts adverse to that claimant, but upon a misapplication or mistake of law to the facts already decided to exist. It is claimed that the complaint'shows, by facts specifically alleged and by the unavoidable construction of the various executive decisions contained therein, that up to June 3, 1896, it had been decided that Jacobus had duly entered the land; had prior to September 20, 1892, resided tliereon, in. compliance with the homestead laws, for a period of more than fourteen months; and had made an honest proof of such settlement, residence, and entry, paid his money on commutation, and received the receiver’s certificate therefor, constituting full paper evidence of complete equitable title; that the local land officer’s findings of these facts were in no wise challenged, but impliedly confirmed, by the commissioner’s ex parte order of May 15, 1893, which pointed out that, conceding such facts to be true, still, by reason of a law of which neither Jacobus nor the land officers had actual knowledge, it had been made necessary that there should have been fourteen months of residence after the entry, as distinguished from the settlement, whereas his residence, as appeared on the face of the papers, with no attempt at concealment, had only been a little over two months after such entry, whereby it resulted that the reception of the proofs and the issue of the receiver’s receipt had been premature by nearly one year.

It is inferable, of course, from the act of June 3, 1896, that there were other cases of this sort; for that act was general, and undertook to provide that they who had duly entered and occupied the land, whose proof, if not characterized by any fraud, had been duly received in disregard of the act of 1891, and the only defect in which was its prematureness, should be the owners of the land, provided their entries had not prior to the act been canceled and no one else had entered. Clearly, if Jacobus had done nothing after making his proofs in September, 1892, and his entry had remained without formal cancellation, he would have been entitled to confirmation thereof, and to his patent, upon the passage of this enactment. He did, however, take further steps, and attempted . in September, 1893, when fourteen months from his entry in July, 1892, had elapsed, to prove residence in good faith for his own benefit up to that date, as the then existing law required. In this he could not but fail, for, relying on his. supposed complete title, he had sold the land and abandoned his residence upon it. This fact was concealed in the affidavits whereby he attempted to make his later proofs, and on trial those proofs were held 'to be fraudulent, and he refused the land, although the final cancellation of his entry and certificate had not then taken place.

Eolio wing the act of 1896, and by reason of it, Jacobus made application for confirmation of his certificate of entry made in 1892, which it was claimed satisfied all the conditions of this act; thus practically ignoring the subsequent steps. The secretary of the interior denied that application by reason of “the practice of fraud in making proofs.” It is conceded by the appellant, on the one hand, that if, upon any evidence, the secretary found fraud to exist as a fact in the premature proofs made in September, 1892, then his decision is final, and he was justified in refusing Jaco-bus his patent, under the act of 1896. But if he intended only to decide that fraud had been practiced in the proofs presented in September, 1893, then he made a mistake of law; for the reason that the good faith of such subsequent attempt to make proofs was not essential to Jacobus’s right to a confirmation of his certificate of entry and to a patent under the act of June 3, 1896, such proofs being immaterial to that right. The question is 'therefore reduced to the somewhat simple one of the construction of Secretary Smith’s ruling of August 4, 1896. It must not be forgotten, i’n approaching that question, that this one order was made upon two motions,— one was the motion to review his previous decision made April 28th, confirming the action of the commissioner of the general land office in denying Jacobus the privilege of making proofs in 1893. That was overruled, as the secretary states, for the reason “ that the entry was not made in good faith, and the proof submitted by the entryman was fraudulent, as full/y set forth in your office decision of January 83,1895.” Of course that decision related to the proof which was before the secretary for consideration, and not to a previous proof, held of no avail because tendered and received before the land officers had any right to receive it as the law then existed.

We have carefully examined all of the preliminary proceedings and controversies, as set forth in the complaint, and are constrained to the conclusion that the proofs, and only proofs, referred to by the secretary in this order as permeated by the practice of fraud, were the same proofs which the commissioner had found fraudulent, and the secretary as well, in affirming the commissioner’s decision. It is hardly necessary in this opinion to go over the whole of this ground. The principal considerations are, however, that, up to the time of the motion on which this order of August 4th passed, no question had been presented, litigated, or discussed as to fraud in any proofs save those which were tendered in September, 1893, and it sufficiently appears from the complaint that the action of the secretary, both that of April 28, 1896, and August 4, 1896, was predicated on the record which had come to him from the district land officers through the commissioner for review. It must be remembered that the officers of the land department — either the local land officers, or the commissioner, or both — had already decided, first; that the settlement and residence up to the time of the entry, namely, from Eebruary 1,1891, to July 6, 1892, were Iona fide and satisfactory; again, in September, 1892, that such residence as the law required had continued, and that the entry, the proofs, and the application for commutation to a pre-emption entry at that time were bona fide. This conclusion, upon facts reached by the land officers, was in no wise impugned by the order of the commissioner made in May, 1893, to the effect that such proofs could not be considered, for that the new law Rad required a residence of fourteen months after the entry, which time had not elapsed. Then came in September, 1893, the attempt to offer proof of continuous residence by Jacobus as a homesteader up to that time,— that is, through the year from September, 1892, to September, 1893,— when confessedly during that year Jacobus had sold out and gone off the premises, and when it was conceded that his attempt to resume occupation thereof under the guise of a return to him of the title was not with a view to making a homestead for himself, but for the purpose of protecting the title of his grantee,— a purpose meritorious enough inter pastes, but fraudulent as to the government. Here came the protest by Hill, which attacked the good faith of Jacobus’s entry and alleged the facts with reference to abandonment, conveyance, removal, and reconveyance. Ho suggestion in this protest was made that the original proofs offered and accepted in September, 1892, were characterized by any fraud or fraudulent practice, and no issue as to the bona fides of Jaco-bus in tendering those proofs was presented. How, while it is doubtless within the power of the commissioner of the general land office and of the secretary of the interior to extend their examinations beyond the issues which may be formed by a protest, it is said in Lee v. Johnson, 116 U. S. 48, that such practice is not common, and we think it clearly appears from the context and language of the decisions of the local land officers, the commissioner, and the secretary that no such extension was made in this case. From the record set forth, it appears that the local officers persisted in the conclusion already reached by them,— that the residence of Jacobus, up to the time of allowance of his first proofs, was satisfactory. They, however, point out the acts subsequent to that time, which clearly established the fraudulent character of the proofs of September, 1893, from the government’s point of view, and recommend cancellation of the whole proceeding by reason of that fraud. This is the view which it seems to us the commissioner of the general land office adopted. In the light of the record on which he was passing, the language is adaptable to that view and to no other, and the fraud in the proofs then tendered and under consideration for acceptance was an abundant reason for refusing them, and thereby, as the law then stood, justified final action invalidating Jacobus’s claim to the land ab initio. Had that conclusion been carried into effective judgment by a cancellation of his entry, it would have been justified, would have been final, and he would have been entitled to no relief under the act of June 3,1896. The ultimate rendition of judgment, however, had been postponed so that his rights were still unadjudicated,, though decided, when the act of 1896 came in and declared that they should be adjudicated upon the proof made in September, 1892, unless in making such proof fraud had been practiced.

It is therefore entirely clear that the proofs first mentioned in the secretary’s order of August 4, 1896, as those which had been held fraudulent in the commissioner’s decision, brought up and already affirmed on appeal, were the proofs of September, 1893, and the mere reading,of the order leaves us in no doubt that he referred to and intended the same proofs in the latter part of the same order. Certainly no one could pass from consideration of the last proofs, affected, as they were, by events and acts peculiar to themselves, to those of the year before, which, if fraudulent, must have been so found upon wholly different reasoning, without noting in his order the very marked distinction and antithesis which must have been present to his mind. It is inconceivable that the secretary, after brusquely reaffirming the former decisions of his subordinates as to the 1893 proofs, should turn to those of 1892, and reverse the holding of the same subordinates thereon, in such phraseology as that used by him. Whether the secretary overlooked the fact that there were two sets of proofs, and assumed that Jacobus’s claim to confirmation and patent, under the act of June 3, 1896, was dependent on the bona fieles of the same proofs as was his application for confirmation and patent previously considered, or whether, having the situation correctly in mind, he decided, as matter of law, that fraud in the 1893 proofs would preclude him from the benefit of his 1892 proofs under the new law, is perhaps not certain. Either, mental attitude is such mistake as precludes the idea that he passed on the question of fraud in the proofs of September, 1892, as a fact, and such a mistake as can be reviewed and corrected by the courts. We reach the conclusion, therefore, that the complaint with sufficient certainty shows that Jaco-bus was denied his patent because of fraud in a transaction which under the law could have no effect upon his right thereto; that, as a result, the issue of patent to Hill conveyed only the title which the United States then had,, namely, a bare legal title in trust for Jacobus, in whom the act of June 3, 1896, had vested full equitable title; and that the complaint states a cause of action to charge Hill with such trust in favor of plaintiff.

The respondent urges strenuously that the allegations of the complaint that no evidence was offered tending in any way to impeach the good faith of the entry of Jacobus, or tending in any way to show any purpose on his part to make the sale which, after the issue of his final certificate, he did make, are merely conclusions, and cannot suffice to render it sufficiently certain that evidence on that subject was not presented and considered, and that it is the duty of the plaintiff to set out all of the evidence in order that the court can draw its conclusions instead of accepting those of the pleader. This contention imposes too strict a rule for pleadings. Doubtless no judgment can go repudiating the conclusion reached by the executive department of the United States without full and clear proof of their mistake of law, but, under our statute, the complaint shall consist of “ a plain and concise statement of the facts constituting the cause of action ” (sec. 2646, Stats. 1898), and is to be liberally construed (sec. 2668). Under these provisions, it is sufficient for plaintiff to allege as a fact the absence of any testimony or proofs on a given subject, which allegation we think must be accorded literal effect upon demurrer, leaving the plaintiff to make proof thereof according to the ordinary rules of evidence.

2. The plaintiff makes further contention that certain representations and agreements on the part of Hill estop him from making any claim of title under his patent from the United States. In view of the grounds upon which we have reached it, the foregoing conclusion as to the force of the action of the interior department seems to us conclusive against this contention. We have held that the refusal of title to Jacobus was based entirely on facts occurring subsequent to Hill’s representations, those facts being: Jaco-bus’s conveyance of the premises to the plaintiff, his abandonment thereof, and his fraud upon the government in attempting to revest himself with title and to make affidavit that, after such conveyance, he continued to occupy for himself. Hill, at most, could only estop himself by declaration of existing facts, except so far as ‘he may be said to have entered into a contract performance of which might be indirectly enforced by holding him estopped from breaking it or from claiming the fruits of its breach. The allegations of the complaint on this subject are well summarized in respondent’s brief as follows: Hill stated to appellant, first, that he did not have any claim to the land; second, that he would not make any claim to the land; third, that he had been fairly beaten in his contest with Jacobus; fourth, that, if appellant bought the land from Jacobus, Hill would make no claim to it; and, fifth, relinquished all his claim to the land'to the United States. Of course, any declaration made by Hill as to his then existing lack of title to the land could not estop him from subsequently acquiring and insisting upon a new and independent title not then claimed by him, and not inconsistent with his declaration. 2 Pomeroy, Eq. Jur. § 813; Bushnell v. Scott, 21 Wis. 457. Whether his assertion that he had been fairly beaten in his contest with Jacobus would estop him from assailing the good faith of the latter’s entry or commutation proof, which had already been made, it is immaterial to decide, in view of the conclusion reached that that question was not considered and had no weight in bringing about the reclamation of the land by the .United States. If, when the evidence is fully in, it shall be found that such assault on Hill’s part was effective, a different question may arise, but for the purposes of the present discussion we may drop that assertion from view. None of his other declarations or promises is inconsistent with the claim which Hill now makes. He may well concede that he then had no claim to the land, and that he would not assert any claim which he then had to it if the appellant purchased it, and that be did in fact relinquish to the United States all claim which he then had. His present title may nevertheless stand; for, as we have held to appear by the complaint, the United States took the land away from Jacobus, not because of any claim which Hill had, and not because of any facts which existed at the time of Hill's representation, but because of acts performed by Jacobus afterwards. Hill's present title is predicated, not upon any claim that he then had, but upon the fact that he, by his protest, brought to the attention of the United States Jacobus’s subsequent conduct, and in consideration thereof was given the privilege to purchase the land from the United States as a new and independent transaction. The conduct of Hill, therefore, so far as stated in the complaint, cannot estop him from asserting the validity of the title acquired by his patent, if it should ultimately be held that Jacobus’s rights were properly canceled and destroyed, unless, indeed, that were done upon the ground of facts existing at the time of the representations and denied thereby.

By the Qourt.— Order of the circuit court reversed, and cause remanded with directions to overrule the demurrer.

Cassoday, O. J., and MaRshall, J., took no part.

A motion by the respondent for a rehearing was submitted on the brief of A. B. Boss, attorney, and W. F. Bailey, of counsel, for the motion, and Sanborn, I/use, Powell do Ellis, contra.

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Rehearing

The following opinion was filed February 1, 1901:

Pee CuRIAm.

Motion for rehearing granted, provided, however, that reargument'shall be confined to the following questions, viz.: First, whether, as conditions precedent to the confirmation of Jacobus’s certificate of entry under the act of June 3, 1896, application to the commissioner of the general land office, proof of the necessary facts before him, and finding thereon by him, or either of those proceedings, was made essential; second, whether the six-months actual residence in good faith by the homestead entryman prior to the commutation, required by said act of June 8, 1896, was required to be subsequent to the date of entry; third, whether at the date of said act, June 3, 1896, Jacobus’s entry had been canceled, and the land in question had been re-entered by the homestead act; fourth, whether the rights now claimed by the respondent are such that he is estopped to set them up against the appellant.

The cause was reargued September 26, 1901.

For the appellant there was a brief by Scmborn, Luse do Powell, and oral argument by A. L. Scmborn and Z. K. Luse.

For the respondent there was a brief by W. F. Bailey, attorney, and W. LL. Stafford, of counsel, and oral argument by 'Mr. Bailey. ' ■

The following opinion was filed October 15, 1901:

Dodge, J.

1. The first question submitted for reargument, namely, whether, as conditions precedent to the confirmation, under the act of June 3, 1896, of Jacobus’s previous commuted pre-emption entry, there was necessary an application to the commissioner of the general land office and proof of the necessary facts before him and finding thereon by him, is predicated upon the first clause of the act of June 3,1896, “ Whenever it shall appear to the commissioner of the general land office that,” etc.-, The doubt suggested by these words, as pressed upon us in the motion for rehearing, was whether the purpose of Congress was to create the commissioner of the general land, office a special tribunal to pass upon the existence of the necessary facts for relieving certain applicants for public lands from the effect of the act of March 3,1891, or whether it was intended merely to provide, wbjxM'i materia with the other land laws, for an examination and decision of these questions by the land department, presided over by the secretary of the interior, and in which the commissioner of the general land office and all other officers are but subordinates of the secretary of the interior, and exercising one or another of the functions of that department, subject to direction, control, and supervision by the secretary. It is well known that in 1820 Congress for the first time attempted something like general legislation which should affect and regulate the management and disposal of the then considerable public domain, which had been derived from various sources and was obviously to increase vastly in extent and value. Since then legislation has been almost as frequent as the sessions of Congress; some of it scientific and deliberate, but much of it seemingly accidental and aimed at special details. Many of these acts, if construed according to their exact words, would have been subversive of certain phases of the obvious general policy of Congress with reference to this important subject; and in this field, perhaps more than almost any other of congressional legislation, the construction placed upon the land laws from time to time enacted both by the department and by the courts has been that- they were intended merely to be added to and become a part of a consistent system of legislation, and as enacted one by one were, so far as possible, to fall under and be controlled by those general provisions and regulations evidently intended to cover the whole field. A comparatively late illustration of this view is presented in the case of U. S. v. Healey, 160 U. S. 136, but there are many others which might be cited.

Since the incorporation of the land department into the interior department, whereby the whole business of the former was placed under the • supervision and control of the secretary of the interior, there has been no element of the policy of Congress and of the public land system more prominent than that the secretary of the department of the interior should be the responsible head thereof; that through and by him spoke and acted the government of the United States with reference to the public domain; and an act which substituted some subordinate of his as the responsible and final representative of the government, free and independent of the secretary’s control, would be a most startling innovation. It is therefore not surprising that we find that the act of 1896 under discussion was promptly assumed by the interior department to be but one more of the many laws directing the conduct of the land department, to be controlled in its execution by the general policy above outlined, whereby the commissioner exercised no more absolute power or discretion than he did generally with reference to the conduct of the land business. On July 9, 1896,— about one month after the enactment of the law,— we find the commissionér, having first obtained the approval of the secretary, promulgating regulations for the execution of this act by a circular published in 26 Land Dec. Dep. Int. 544. This circular provided that in certain cases then pending no application to any officers need be made, but that tbe general land office would at once take them up for consideration without application. As to other cases it'was provided that application should be made, not to the commissioner as a responsible and special tribunal, but, as in the case of all other land matters, to the local land officers, who should examine and report thereon, as upon other applications, not to the commissioner, but to the general land office. This circular, while emanating from the commissioner of the general land office, did not purport to emanate from him as the source of authority, but, in accordance with the usual practice of the land department, bore upon its face the sanction of the approval of the secretary. It was wholly inconsistent with the understanding that the establishment of rights under the act of 1896 was intended to be treated otherwise than the rights of other applicants under the general system of public land laws. Two instances are cited to us by counsel of the treatment of applications under this law in exactly th¿ same manner as other applications for lánd, in that the. power of the secretary of the interior to supervise, regula,te, and control is recognized and exercised. In re Hasselquist, 24 Land Dec. Dep. Int. 351; Kuepper v. Tripp, 26 id. 561. To these may be added Jacobus’s own application, over which the secretary unhesitatingly took jurisdiction without a thought that a new tribunal exclusive of himself had been vested with that authority. We find nothing to indicate that the line of construction thus adopted in the depart-' ment has ever been varied, and these decisions, commencing at about the time of the passage of the act, and continuing thereafter, are, of course, very cogent in- its construction. U. S. v. Healey, 160 U. S. 136.

In the case of Buena Vista Co. v. I. F. & S. C. R. Co. 112 U. S. 165, an act of Congress provided “ that the commissioner of the general land office is hereby authorized and required to receive and examine the selections of swamp lands, . . . and allow or disallow said selections and indemnity provided for,” etc. A decision by him under such act was reversed by the secretary of the interior, and in the suit it was contended — as by the respondent here — that the decision of the commissioner was intended to be final' and not appealable to the secretary. This contention was overruled, the court saying:

“ There is nothing in the act which alters the relation between the two officers as otherwise established, or puts the decisions of the commissioner under that act upon a footing different from his other decisions.”

In Knight v. U. S. L. Asso. 142 U. S. 161, the question of the relation of the secretary to the execution of the land laws — not only those existing at the time his general authority was defined, but such as might be thereafter enacted — was exhaustively discussed by Lamae, J., who shortly before had been secretary of the interior. This discussion is so exhaustive, and the citation of statutes, precedents, and illustrations so complete, as to render further enlargement now unnecessary. The views there expressed are further supported by Orchard v. Alexander, 157 U. S. 372; Parsons v. Venzke, 164 U. S. 89; Warner Valley S. Co. v. Smith, 165 U. S. 28; In re Sweayze, 5 Land Dec. Dep. Int. 570; 17 Op. Att’ys Gen. 205.

In the light of the rules for construction of the land laws promulgated by these decisions of the supreme court of the United States and the practical construction given to the act of 1896 by the executive officers, we cannot doubt that it was intended to be carried out under the direction and supervision of the secretary of the interior. While he might, and generally did, require that rights claimed under it should first be submitted to the officers of the general land office, he did not thereby preclude himself from assuming direction and supervision upon direct application to himself, waiving such preliminary steps. In such case his decision was the ultimate and final one of the executive branch of the government.

2. The second question submitted for argument was whether the words, ^Whenever it shall be made to appear . . . that there was at least six months’ actual residence in good faith by the homestead entryman prior to such confirmation,” etc., required that such residence should be after the entry. Obviously, there is nothing in the words themselves to express such requirement, unless it lurks in the word “ entryman.” The suggested argument is that residence by an entryman can only exist after entry; before that claimant is not an entryman. This contention gives to that single word extraordinary force as a limitation, and we should be slow to believe that statute makers used it for that purpose, unless such intention were confirmed by context or other considerations. The word “entryman” may quite as naturally have been used merely to describe •such person as was entitled to the benefit under the act of 1896. To be entitled to confirmation thereunder, one must have been a homestead entryman. We find the word thus used elsewhere in the same statute more than once; that is, .as merely descriptive of the persons to whom'that act applies. If used in the same sense in the clause under consideration, it would only require six months’ residence by that person. That the same word is used in the same sense when repeated in a law is ordinarily to be presumed,, unless a different purpose is plain. We can discover no reason, either in context or in the purpose of the legislation, to avert that presumption. On the contrary, we think that it is merely an adoption into this particular statute of a rule of the general land office which for many years had been applied to pre-emptors, whereby, in excess of the statutory conditions for acquiring title, they were required to have resided in good faith upon the land for at least six months before preemption certificate could issue. Since this requirement was not statutory, the act of 1896, giving to homestead entrymen the same rights to pre-emption prescribed by law for those originally applying as pre-emptors, might have been construed as waiving this requirement for six months’ residence in good faith prescribed only by regulation. It seems obvious that the clause in question was interpolated merely to avoid this result, and to require of homestead entry, as a condition of commutation into pre-emption, the same six months’ residence in good faith as the regulation had previously imposed on all others; which residence had never been required to be subsequent to entry, but merely prior to final proof.

Another reason is now urged by appellant why the clause making right to confirmation under the act of 1896 dependent on six months’ actual residence should not exclude the plaintiff, even if such residence must be subsequent to entry. That reason is that, as appellant now claims,'his entry took place when he filed the necessary papers and paid the fee in February, 1891. He cites authorities seeming to sustain the position that the date of an entry of land is when the applicant having the right to enter completes all of the acts required of him to effect that result; that delay of the land officers to note on their books such entry cannot affect his rights, whether such delay results from hearing and deciding a contest or from any other cause. Chotard v. Pope, 12 Wheat. 586; Lytle v. Arkansas, 9 How. 333; Shepley v. Cowen, 91 U. S. 330; Postle v. Strickler, 3 Land Dec. Dep. Int. 42; Gilbert v. Spearing, 4 id. 463; Goodale v. Olney, 12 id. 324; Coder v. Lotridge, id. 643; Bomgardner v. Kittleman, 17 id. 209; McDonald v. Hartman, 19 id. 562. Since we have decided that the six-months residence is not required to be subsequent to entry, we do not need to pass upon this contention of appellant. If we should adopt this view, it would not change the result. We therefore consider that we ought not to pass on it, for its decision might sustain plaintiff’s right to the land independently of the acts of 1891 or 1896. In that respect it is an entirely new proposition, presented for the first time upon a rehearing limited by our order so as not to fairly include it, so that respondent cannot be said to have had reasonable opportunity to meet it. On the original argument of this- case no question was raised as to the correctness of the commissioner’s ruling that Jacobus’s entry was of date July 6, 1892, and our consideration of the case proceeded upon assumption of such correctness. As the question was not raised or argued by counsel, so it was not 'considered or decided by the court. The several references in the former opinion to July 6, 1892, as the date of entry are to be construed, not as a decision of that fact, but merely as assumption of a premise from which the discussion of other questions proceeded.

3. The first part of the third question reargued we deem unnecessary of decision for the purposes of this case. Examination of various decisions of the land department of the United States and of federal courts leaves much confusion and doubt whether an order of the commissioner of the general land office that an entry be “held for cancellation ” effectively cancels it if an appeal is taken therefrom, or whether its efficacy as a judgment of cancellation is complete only upon the expiration of the time for appeal without that right being exercised, or, if exercised, upon final affirmance by the secretary of the interior and communication thereof to the commissioner, followed by formal order of cancellation. There seem to be decisions and dicta supporting the different theories. Johnson v. Walton, 11 Land Dec. Dep. Int. 278; McDonald v. Hartman, 19 id. 547; In re Northern Pacific R. Co. 20 id. 191; In re Hasselquist, 24 id. 351; Germania I. Co. v. James, 89 Fed. Rep. 811; S. C. 107 Fed. Rep. 597. Since the effect of such acts must largely be ascertained by the holdings of the department; and ultimately by decision of federal courts, we deem it unadvisable to declare our view thereon unnecessarily. We therefore withdraw the statement in our former opinion bearing on completed cancellation, as follows: “The ultimate rendition of judgment, however, had been postponed so that his rights were still un-adjudicated, though decided, when the act of 1896 came in and declared that they should be adjudicated upon the proof made in September, 1892, unless in making such proof fraud had been practiced.” We say that completeness of cancellation of plaintiff’s entry is immaterial and unnecessary of decision because his right to confirmation under the act of 1896 was by the terms of that act defeated only in case there had been both cancellation and re-entry under the homestead act prior to June 3, 1896, or prior to application for confirmation; and the complaint clearly asserts that no reentry had taken place. It not only categorically and in terms negatives such event, but also alleges that HilVs entry did not take place until September 7, 1896. This would seem conclusive upon demurrer that this call of the statute had not been complied with, but counsel for respondent urges that Hill had acquired a “ preference right of entry ” at some earlier date, which should be deemed that of his re-entry. Careful examination of the- complaint discloses no such allegation, but if we should infer from the fact that Jacobus’s attempt to make second commutation was defeated upon HilVs contest, and that the latter afterwards entered, that such entry was allowed by reason of preference right based in his contest, still the existence of such preference right is not an entry nor a re-entry, within the words of the act of 1896. Such right is a mere privilege to enter, and in no sense an entry. Sec. 2, ch. 89, Laws of 1880 (21 Stats, at Large, 140); In re Hendrickson, 13 Land Dec. Dep. Int. 169; In re Davis, 19 id. 489. Hence we conclude that, whether cancellation had or had not taken place, there certainly had been no re-entry, and plaintiff was not within the terms of the proviso to the act of 1896, so as to preclude him from, right to confirmation under it.

After full consideration of all the reasons urged, we find none to lead us to recede from the decision formerly declared. It is therefore unnecessary to consider whether, if any of such reasons had been sustained, estoppel might successfully be invoked against respondent in urging them.

By the Court.— Order of the circuit court reversed, and cause remanded with directions to overrule the demurrer.

MaRshall, J., took no part.