61 N.W. 1036 | N.D. | 1894
Lead Opinion
The plaintiff’s theory of action, as disclosed by his complaint, is not the one that was developed upon the trial. The complaint is framed under § 5449, Comp. Laws, to try an adverse claim to plaintiff’s alleged title. The pleading contains an allegation that the plaintiff is the owner in fee simple of the land in question. On the trial it appeared that the plaintiff was not the owner in fee simple; that he did not pretend to hold the legal title; but that, on the contrary, he was seeking by this action to have the defendant, who' held the legal title, adjudged to be a mere trustee for the plaintiff as to such title, and to procure a decree directing defendant to convey the same to the plaintiff. The pleadings and the proof are not in harmony; but, as no point has been made touching the failure of the plaintiff to establish the cause of action he had alleged, we will consider the pleadings as amended to conform to the evidence, and turn to the latter for our guidance in determining whether the theory on which the case was tried below and argued in this court can be sustained.
The defendant holds a patent for the land. The plaintiff claims under a pre-emptor whose certificate was canceled by the commissioner of the general land office before defendant made the entry on the land under which he obtained his patent. The question which confronts us at the very threshold relates to the power of the commissioner to cancel entries which have been allowed by the officers of the local land office. In this connection a more particular reference to the facts is advisable. The entry under which plaintiff claims was made by Willis B. Simpkins, January 11, 1883. In less than a month after he had received his patent certificate, he conveyed the land to Charles J. Wolfe, who sold the land to Jessie J. Russell, by whom it was mortgaged. The plaintiff claims as a purchaser under the sale on foreclosure of this mortgage. These transfers and this mortgage were all executed prior to the cancellation of Simpkins’ entry. After the cancellation of this entry, the defendant entered the land as a pre-emptor, and ultimately obtained a patent. It is the legal title under this patent which the plaintiff seeks to secure by this
The first inquiry is whether this power of cancellation exists. The authorities are divided upon this question, but the great weight of the adjudications supports the power, and so does the better reason. Holmes v. State, (Ala.) 14 South 51; Judd v. Randall, (Minn.) 29 N. W. 589; Mortgage Co. v. Hopper, 56 Fed. 67; Lewis v. Shaw, 57 Fed. 516; Jones v. Meyers, (Idaho,) 26 Pac. 215; Swigart v. Walker, (Kan.) 30 Pac. 162; U. S. v. Steenerson, 1 C. C. A. 552, 50 Fed. 504; Stimson v. Clarke, 45 Fed. 760; Bogan v. Mortgage Co., supra; Freese v. Scouten, (Kan.) 36 Pac. 741; McLane v. Bovee, 35 Wis. 27; Vance v. Kohlberg, 50 Cal. 346; Hosmer v. Wallace, 47 Cal. 461; Figg v. Hensley, 52 Cal. 299; Fernald v. Winch, (Kan.) 31 Pac. 665; Bellows v. Todd, 34 Iowa, 31. See, also, Harkness v. Underhill, 1 Black, 316-325; Barnard v. Ashley, 18 How. 43; Cornelius v. Kessel, 128 U. S. 456-461, 9 Sup. Ct. 122. The argument employed to assail the existence of the power begs the whole question. It necessarily assumes that the power does not exist. The argument, in substance, urges the
The state of the record will not, however, permit us to rest here. It is contended that, even conceding the existence of this power, it was improperly exercised in this case. The general doctrine is that this power is not unlimited; that the courts will not always refuse to investigate the question whether it has been properly exercised. Said the court in Boga?i v. Mortgage Co., supra,:' “But the supervisory or reviewing power of the commissioner of the land office or of the secretary of the interior is not an arbitrary, unlimited, or discretionary power, but a power that must be exercised according to law, and not in violation or disregard of it. When it is so exercised, and its exercise is not induced by fraud or mistake, the results it produces are sustained by the courts. Where its exercise has been induced by fraudulent misrepresentations or by material mistake of fact, or when the power has been exercised in violation or in disregard of law, the results produced are uniformly so modified by the decrees of the courts that those who are entitled in equity to the titles to the lands ultimately obtain them.” To same effect are Cornelius v. Kessel, 128 U. S. 456, 9 Sup. Ct. 122; Bernier v. Bernier, 147 U. S. 242, 13 Sup. Ct. 244. It is well settled that, if the commissioner cancels an entry under a misconception of the law, the courts will rectify the error, and give the land to the one who would have received the patent if the mistake had not been committed. There are numerous cases in which this has been done. See, among others, the authorities last cited. But it is not pretended here that the cancellation of Simpkins’ entry was the result of a mistake of law. The entry was canceled on the ground that it was fraudulent and speculative, and that Simpkins’ final proof was false. These were all matters of fact. The commissioner having power to investigate them, and to reach a conclusion upon them, his decision is final, unless the case is
Do the peculiar facts of this case take it out of this general rule? This brings us to a further consideration of the evidence. On September 13, 1884, W. W. Mcllvain, special agent of the general land office, made a report to that office, in which he stated that only six acres of the tract in question had been cultivated, and that this constituted all the improvements on the land; that he thought there had never been any actual residence established on the land; that the claimant was entirely unknown in the neighborhood; and that the entry must have been fraudulent. This report was supported by four affidavits. Simpkins’ final proof was false, and his entry fraudulent, if these facts were true. On this report the commissioner ordered a hearing before the local officers. A summons was issued and served by publication, the special agent certifying that the summons could not be personally served on Simpkins; that he was informed that Simpkins was not a resident of the territory; and that he believed that personal service could not be made upon him. It will be noticed that these facts were not sworn to, but were embodied in a mere certificate of the special agent. On the day set for hearing, S. B. Pinney appeared specially for Simpkins, and moved that the proceedings be dismissed, on the ground that there had been no legal service upon Simpkins. This motion was denied. Mr. Pinney was then notified by the receiver that he might and must
It is urged by plaintiff that the commissioner failed to acquire jurisdiction in the proceedings to cancel the entry, for the reason that the summons was not personally seived, and that no affidavit for publication was ever made. The publication was made, as we
Said the circuit court of appeals in U. S. v. Steenerson, 1 C. C. A. 552, 50 Fed. 504, at p. 509: “But if it appeal's in a given case that when, in the proper course of business, the commissioner of the land office was called upon to determine whether the preemptor was entitled to a patent, he adjudged that the entry was fraudulent, and therefore void, then the claimant is without a final adjudication in his favor, and he must resort to other evidence to sustain his claim.” In this very case, the proceedings to cancel the entry were ex parte, and yet the court ruled that this circumstance would not excuse the citizen from showing compliance with the law after the evidence of such compliance had been
In Risdon v. Davenport, (S. D.) 57 N. W. 482, the question arose upon the pleadings, the plaintiff having demurred to the answer. The defendant was the holder of a mortgage upon land, executed by the entryman whose entry had been canceled. Plaintiff held a patent under an entry made subsequently to such cancellation,
There is nothing in the point that there was no evidence before the commissioner that the entry was fraudulent; or at least no competent evidence. The courts cannot review the decisions of the land department on the ground that the evidence was insufficient, or that only incompetent evidence was before it. The power to try questions of fact necessarily embraces the power to pass upon the weight and competency of evidence.
There is much force in the decision of the court in Lewis v. Shaw, 57 Fed. 516, that a cancellation is a nullity as against an
We now come to the last question in this case. There is evidence warranting the conclusion that the mortgagee to whom the land was mortgaged before these cancellation proceedings were instituted was a mortgagee in good faith, for a valuable consideration, and made the loan without notice or suspicion of any failure on the part of Simpkins to comply with the law, or of his fraudulent purpose in making the entry. The plaintiff, under the foreclosure, occupies the same vantage ground. Do these facts prevent a cancellation of the entry? We think not. Here, again, the cases disagree. But on this point, as on the general quéstion of the power to cancel, the weight of authority, and we think the better reason, support our view. Swigart v. Walker, (Kan.) 30 Pac. 162; Jones v. Meyers, (Idaho,) 26 Pac. 215; Judd v. Randall, (Minn.) 29 N. W. 589; Figg v. Hensley, 52 Cal. 299; Fernald v. Winch, (Kan.) 31 Pac. 665; Mortgage Co. v. Hopper, 56 Fed. 67, 74, 75; Lewis v. Shaw, 57 Fed. 516; Freese v. Scouten, (Kan.) 36 Pac. 741. When the bona Jide purchaser who holds the interest of the entryman at the time of the commencement of the cancellation proceedings is not heard, and has no chance to be heard, before the department, possibly the proceedings will be regarded as ex parte with respect to him, and he be allowed to prove in court the lawfulness of the entry. See Lewis v. Shaw, 57 Fed. 516. See, also, U. S. v. Steenerson, 1 C. C. A. 552, 50 Fed. 504; Lindsey v. Hawes, 2 Black, 254; Garland v. Wynn, 20 How. 8; Lytle v. Arkansas, 22 How. 193. There is a strong disposition on the part of the courts to throw about the entryman, and those who claim under him, protection against arbitrary destruction of their rights. See Cornelius v. Kessel, 128 U. S. 461, 9 Sup. Ct. 122, in addition to the cases last above cited,
We are next referred to section 7 of the act of March 3, 1891, entitled “An act for the repeal of the timber culture law, and for other purposes.” That portion of section 7 which relates to this case provides as follows: “And all entries made under pre-emption, homestead, desert land, or timber culture laws, in which
The judgment is affirmed.
Concurrence Opinion
(concurring.) My associates reach a judgment of affirmance without referring to § 2262, Rev. St. U. S., and purely upon common law principles. I concede that their conclusion is correct upon those principles. I concede, also, that the same conclusion must be reached under that section, as construed in Mortgage Co. v. Hopper, 56 Fed. 67, and cases there cited. The construction there given to the statute simply makes it declaratory of the law as it stood without the statute so far as it refers to conveyances of the land. I confess that, in the absence of such construction, I might have concluded that the statute was enacted expressly to relieve parties who had invested money as the record shows that plaintiff did in this case. But the construction is unmistakable, and a federal construction of a federal statute ought to control this court; hence I concur.