50 F. 504 | 8th Cir. | 1892
The facts necessary for a proper understanding of the questions presented by the record in this case are as follows: In September, 1883, one Hans Hanson made a pre-emption entry of the S. W. i of section 33, township 147, range 38 W., situated in Bel-trami county, Minn. On June 24, 1884, he filed a declaratory statement of pre-emption, and on November 1, 1884, made final proof of entry, including the necessary payments, and received a certificate from the receiver of the land office at Crookston, Minn., showing payment in full for the land named. On the same day the certificate was issued to him Hanson executed a deed of the land to Andrew Steenerson, who was a partner in the defendant firm, known .as the “Clear Water Land & Logging Company.” That company, during the winter of 1885-86, cut from the land named about 754,000 feet of logs, and placed them in the waters of the Clear Water rWer. On the 29th of April, 1886, the United States brought the present action in the United States circuit court for the district of Minnesota to recover possession of said logs, a
It is well settled that the United States can maintain an action of re-plevin to retake logs wrongfully out from land belonging to the government, and, where the ownership of the logs is dependent upon the question of the title of the lands from which the logs were cut, that issue may be investigated and determined in the action of replevin. Thus in U. S. v. Cook, 19 Wall. 591, an action in replevin, brought to recover possession of logs cut upon an Indian reservation in Wisconsin by the Indians occupying the same, and by them sold to the defendant, Cook, the supremo court decided (hat the fee title of the lands was in the United States; that the Indians had the right of occupancy, but not the right to cut the timber for purposes of sale merely; that such cutting was waste; that, “under such circumstances, when cut, it became the property of the United States absolutely, discharged of any rights of the Indians therein. The cutting was waste, and, in accordance with well-petti ed principles, the owner of the fee may seize the timber cut, arrest
“The title to the land remaining in the state, the lumber cut upon the land belonged to the state.' Whilst the timber was standing it constituted a part of the realty; being severed from the soil its character was changed; it became personalty, but its title was not affected; it continued, as previously, the property of the owner of the land, and could be pursued wherever it was carried. All the remedies were open to the owner whieh the law affords in other cases of the wrongful removal or conversion of personal property. ”
■ In Beecher v. Wetherby, 95 U. S. 517, — an action in replevin for logs cut from a section of land situated in Wisconsin, — the plaintiff claimed title to the land under patents issued by the United States in 1872, and the defendant under patents from the state, issued in 1865 and 1870. The land had at one time been occupied by the Menomonee Indians, but it was claimed that the fee passed to the state upon its admission to the Union, and when the Indians ceased to occupy it, the right of occupancy followed the fee, and hence the land and the right to the timber thereon became wholly vested in the state, and hence passed to the defendants under the patents issued by the state. Thus the right to the logs was shown to be dependent upon the ownership of the land from which they had been cut, and that issue required the determination of the question whether the fee of the land passed to the state by force of the grant contained in the act of congress under which Wisconsin became a state in the Union, or whether the fee passed by the patents subsequently issued by the United States. The court, after a full examination of the facts presented on the record, held that the title of the land had passed to the state, and therefore the plaintiff acquired nothing under the patents issued to him at a subsequent date, and hence had no property in or right to the timber in dispute. These decisions of the court of last resort settle beyond cavil the propositions that standing timber is a part of the realty upon which it grows; that, when severed therefrom, its character changes to personalty, but the title thereto is not affected by such severance; that, if cut and carried away by a wrongdoer, the owner of the land may retake the timber wherever found; that, when thus retaken by means of a writ of replevin, it is open to both parties in the replevin action to assert title to the realty from which the timber was cut, as proof of the ownership of the timber; that, when conflicting claims to the title of the
From the facts disclosed on the record now before us it appears that the title to the realty from which the timber was cut was squarely at issue between the parties. The ownership of the logs was clearly dependent upon the question of the ownership of the land, ,to which both parties asserted title, and hence it became the duty of the court to investigate and adjudicate that issue. On behalf of the United States it was proven that the land was originally part of the public domain, and that no patent or other grant of title had been made. To meet the prima fa-cie case thus made, the defendants proved that Hanson had made a preemption entry of the land, had completed the requisite payments and obtained the receipt or certificate of the receiver of the local land office showing such payment in full. Thereupon it was proposed, on behalf of the United Slates, to introduce evidence tending to show that the entry made by Iianson was not in good faith, and was in fact fraudulent, and made solely for the purpose of enabling the defendant firm to strip the land of the timber, and that the commissioner of the land office had canceled the entry on the ground of fraud. The trial court held that, until the validity of the certificate of final payment had been judicially ascertained and dee,la,red by some tribunal having authority to investigate the ease, the United Slates bad no such title or right oí possession to the logs in controversy as would enable it to maintain replevin. As we gather it from the record, the court held that the entry made by Hanson, and the issuance to him of a certificate of final payment by the receiver of the local land office, regardless of the question of fraud in such entry, convoyed, as against the United Stales, the title and consequent right of possession of such realty to the pre-emptor in such sense that the United States, in order to revest the title in itself, must institute judicial proceedings to set aside the apparent or defeasible title vested in the pre-emptor and his grantees. In support of this view many decisions of the supreme court are cited by counsel, in which it is hold that, when the right to a patent for lands has once become vested in a purchaser or pre-emptor, the same are segregated from the public domain, are no longer subject to entry, and the vested right to the patent thereto is equivalent to a patent actually issued. See Carroll v. Safford, 8 How. 441; Witherspoon v. Duncan, 4 Wall. 210; Stark v. Starrs, 6 Wall. 417; Myers v. Croft, 13 Wall. 291; Wirth v. Branson, 98 U. S. 118; Simmons v. Wagner, 101 U. S. 260; Deffeback v. Hawke, 115 U. S. 405, 6 Sup. Ct. Rep. 95; Cornelius v. Kessel, 128 U. S. 456, 9 Sup. Ct. Rep. 122. The principle on which these decisions are based is that when a homesteader or pre-emptor has, in good faith, performed ail the acts which, under the provisions of the statutes of the United States, are necessary lo complete his right to the land, then he becomes, equitably, the owner of the same, and the United States holds the naked legal title as a trustee for his benefit. For the protection of his rights, thus acquired, it is held that in a contest involving the title of the land an established
It is well settled in Minnesota that in an action of replevin, wherein title to property is claimed under a deed of assignment or other formal conveyance, the validity thereof may be attacked on the ground of fraud, and such issue may be determined in the replevin proceedings. Blackman v. Wheaton, 13 Minn. 326, (Gil. 299;) Tupper v. Thompson, 26 Minn. 385, 4 N. W. Rep. 621; Furman v. Tenny, 28 Minn. 77, 9 N. W. Rep. 172. When it is desired to obtain the cancellation of a deed or patent conveying the legal title of realty on the ground of fraud it is necessary to invoke the aid of a court of equity, but where the relief sought is not equitable in its nature a court of law is certainly competent to adjudicate the issue of fraud. In the case at bar it is not claimed that a patent to the land had been issued, and therefore the legal title remained in the United States. Phe circuit court in effect held that proof of entry and the execution of the receipt showing final payment deprived the United States of the title to the land, regardless of the question whether such entry and payment were made in good faith or fraudulently, and that, before the United States could maintain its right to the logs in controversy, it must, by the adjudication of some proper tribunal, set aside and cancel the title to the realty held by Hanson under his pre-emption entry. It cannot be questioned that the land department is primarily charged with the duty of supervising the disposition of the public domain;' and in cases within its jurisdiction, and
ft is broadly affirmed on behalf of defendants that the land department had no power to cancel tho final receipt for any reason, and that the act of the commissioner in so doing was a nullity. This is the equivalent of the proposition that the issuance of a final receipt or certificate of payment by the receiver of a local laud office ends the control of tho department over tho land, and deprives tho United States of the title thereto, which is certainly not the law. Thus it is said in Bell v. Hearne, 19 How. 262, that — •
“The commissioner of the general land office exercises a general superintendence over the subordinate officers of his department, and is clothed with liberal powers of control, to be exercised for the purpose of justice, and to prevent the consequences of inadvertence, irregularity, mistake, and fraud in the important and extensive operations of that office for the disposal of the public domain.”
And in Cornelius v. Kessel, 128 U. S. 456, 9 Sup. Ct. Rep. 122, it is declared that-—
“The power of supervision possessed by the commissioner‘of the general land office over the acts of the register and receiver of the local land offices in the disposition of the public lands undoubtedly authorizes him to correct and annul entries of land allowed by them where the lands are not subject to entry, or the parties do not possess the qualifications required, or have previously entered all that the law permits. Tho exercise of this power is necessary to the due administration of the land department. If an investigation of the validity of such entries were required in tin? courts of law before they could bo canceled, the necessary delays attending the examination would greatly impair, if not destroy, the efficiency of the department. But the power of supervision and correction is not an unlimited or arbitrary power. It can only he exerted when tiie entry was made upon false testimony, or without authority of law. It cannot be exercised so as to deprive any person of land lawfully entered and paid for. By such entry and payment the purchaser secures a vested interest in the property, and a right to a patent therefor, and can no more be deprived of it by order of the commissioner than he can be deprived by such order of any other lawfully acquired property.”
In the light of these decisions of the supreme court it cannot be successfully maintained that the commissioner of the general land office had
“Before any person claiming the benefit of this chapter is allowed to enter lands he shall make oath before the receiver or register of the land district in which the land is situated that he has never had the benefit of any right or pre-emption under section twenty-two hundred and fifty-nine; that he is not the owner of three hundred and twenty acres of land in any state or territory; that he has not settled upon and improved such land to sell the same on speculation, but in good faith to appropriate it to his own exclusive use; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person whatsoever, by which the title which he might acquire from the government of the United States should inure, in whole or in part, to the benefit of any person except himself; and, if any person taking such oath swears falsely in the premises, beshall forfeit the money which he may have paid for such land, and all right and title to the same; and any grant or conveyance which he may have, except in the hands of bona fide purchasers, for a valuable consideration, shall be null and void, except as provided in section twenty-two hundred and eighty-eight. * * *”
The evidence which the United States sought to introduce tended to prove that Hanson entered the land, not for settlement and improvement by him for his own benefit, but for the express benefit of the logging company, and under an agreement with them to convey the land as soon as it could be done, in order that the company, under guise of right, might strip the land of the timber growing thereon. Such facts, if proven, would certainly show that Hanson never acquired a vali.d title,-legal or equitable, to the land as against the United States, and as the defendants, in support of their right to the logs cut from the land, put in evidence the entry and declaratory statement made by Hanson, it was open to the United States to prove that such entry was in violation of the statute, and the statement was false, and therefore no rights were acquired thereunder by Hanson or by^ his grantees, who aided in the perpetration of the fraud thus established. We hold, therefore, that it was error to rule out the evidence offered by the United States. The same should have been admitted with such other competent testimony as either of the parties might have offered upon the question of the validity of the entry made by Hanson; that question being one involved in the issues in the case, and one which it was the duty of the court to deter