5 Dakota 180 | Supreme Court Of The Territory Of Dakota | 1888
This is an action in the nature of a suit in •equity, brought by the plaintiff, Francis Vantongeren, against the defendants, John Heffernan and Michael Brennan, to quiet title to certain lands situated in the county of Grant, Dak. The action was tried before a referee; and the facts found by the referee show that the plaintiff, Francis Vantongeren, on the 2d day of January, A. D. 1880, entered the S. W. J of section ’21, township 121, range 47, under the pre-emption law, and that Michael Brennan, defendant, on the 7th day of December, 1880, entered the N. W. | of the same section, under the preemption law, and that each received, at the time of entry, the usual final receipt, and that the defendant Michael Brennan, on the 13th day of December, 1880, conveyed to the defendant ■John Heffernan the said N. W. J of said section 21 by deed of warranty. These entries and final proofs were made under the ■survey of the United States in 1865. The referee further finds “that at the time the plaintiff in this action, in the spring of 1879, settled upon and improved the south-west quarter of see-lion 21, township 121, range 47, under the government survey •of 1865, there was not visible any section corners or landmarks, ■showing township, section, quarter lines or corners; that plaintiff, in selecting this quarter section of land, so far as the boundaries of the same are concerned, was governed by the Whetstone ■creek, and took and settled upon and improved said quarter section with reference to its location north of the Whetstone creek, •except the twenty acres south of the Whetstone creek, as in these findings hereinbefore mentioned; also he was governed by the •character of the soil, the land lying north of the Whetstone be
From the findings it further appears that in the month of September, 1882, the government of the United States caused a resurvey to be made of the township, including these quarter sections in controversy; and by this new survey the east and west quarter section lines between the N. W. and S; W. quarter of said section 21 were removed south about 80 rods; making the N. J of the S. W. under the survey of I860, to become the S. J of the N. W. J of section 21 under the survey of 1882. That the improvements of the plaintiff, consisting of a house, barn, granary and other buildings, breaking, etc., of the value of about $700, were made and erected prior to the new survey, and are situated on the N. J of the S. W. £ of said section 21 under the survey of 1865, and on the S. £ of the N. W. £ under the survey of 1882. There is no finding of the referee as to where the lines of the survey of 1865 were actually run, or where the section and quarter section corners were actually established with reference to this land, further than as shown by the location of these quarter sections upon the plats with reference to Whetstone creek, and other'natural objects designated thereon. No patents have ever issued for either of said quarter sections.
■ The complaint alleges that, by virtue of the premises, he is thq owner of said N. of the S. W. J of said section 21, under the survey of 1865, now designated as the S. J of the N. W. £ of section 21, under the survey of 1882; that the defendant has entered upon and disturbed his possession, has committed trespass, and threatens to commit trespass, thereon; and prays “that this court decree that plaintiff is the rightful owner of said south half of the north-west quarter of said section, as well as the north half of the south-west quarter of said section; that defendants have no rights or interest therein; that they be required to execute to plaintiff a good and sufficient deed of title to the said south half of the north-west quarter of said section, and that the title to said land be quieted in said plain
The court confirmed the report of the referee, and thereupon ordered, adjudged, and' decreed “that the plaintiff have judgment, as prayed for in his complaint, against the defendant, and each and all of them; that all adverse claims of the defendants, and each of them, and all persons claiming or to claim said premises, or any part thereof, through or under said defendants, or either of them, are hereby adjudged and decreed to be invalid and groundless; and that the plaintiff be, and he is hereby, declared and adjudged to be the true and lawful owner of the land described in the complaint, and hereinafter described, and every part and parcel thereof, and that his title hereto adjudged to be quieted against all claims, demands, or pretention of the defendants, or either of them.”
The defendant Heffernan appeared, and demurred to the complaint, upon the ground, among others, that the court of equity had no jurisdiction to determine the plaintiff’s title prior to issue of the patent; and, upon the overruling of his demurrer by the court, and exceptions allowed, he denied the jurisdiction of the court by answer, upon a statement, in allegation of facts, differing from the allegations of the complaint in the essential particular only as to the deviation of the east and -west lines of the two surveys; the defendant alleging that the actual survey of 1865 ran its east and west lines between these quarter sections but a few rods only, to-wit, six or eight rods, north of the survey of 1882, and the plaintiff alleging that the deviation was about eighty rods.
After the entry of decree upon the findings of the referee, defendant brings the case to this court, assigning as error that the court below, prior to issue of patent, had no jurisdiction to quiet title in the plaintiff, and to determine the ultimate rights of the parties, while the title remained in the government.
It will be observed that this is not an action to recover the
The plaintiff does not seek to recover under this section. He does not seek to recover for disturbance of his possession, but seeks to have a final determination of his title as against the defendants and their grantees, upon the theory that the final certificate issued by the land-officers vested in him a fee of the land which the courts can confirm as against the adverse claims of the defendants.
To maintain this action, the court will oe required to hold that the ultimate title of the government passes by the final receipt, subject only to the formal or ministerial act of the department officers in issuing the patent; and that, when the local land officers have once issued a final receipt in cases of preemption, the commissioner of the general land-office and the secretary of the interior have no power to recall or cancel the same, but that the patent must issue thereon as of course.
We are led, then, to examine what force and effect is to be given to the final receipt in pre-emption cases; and, to do so intelligently, we will have to note the origin of the law, the changes that have been made therein, and the decisions of the courts rendered from time to time construing the provisions of the original and amended act.
Under this provision of the constitution, congress, at a very ■early day, created the general land-office, and subdivided the public domain into land-districts for the sale and disposition of the public lands. This bureau or land department was at one time attached to the treasury department of the government, and was also at one time, in part, subject to the supervision of •the war department, and also of the president of the United .States; but later on this bureau became an adjunct of the
Section 453, Eev. St. U. S., reads as follows: “The commissioner of the general land-office shall perform, under the direction of the secretary of the interior, all executive duties appertaining to the surveying and sale of the public lands of the United States, or in anywise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the government.”
It will be seen from these sections, and accompanying sections of the Bevised Statutes, that the secretary of the interior is charged with the entire supervision of the survey and the sale-of the public lauds, and that the commissioner of the general land-office acts under his direction in executing the land laws of' •the United States. All sales and disposition of the public lands must pass under the inspection of the secretary of the interior-in person, or that of the commissioner of the general land-office,, by direction of the secretary of the interior. The register and receiver are but local officers of the several land-districts, charged with the performance of certain duties of a quasi judicial character, and subject to the direction and supervision of their superior officers, the commissioner of the general land-office and. the secretary of the interior. These duties maybe said, in general, to be to pass upon the qualifications and rights of the claimants to file upon and enter any part of the public lands, and to ascertain whether the lands applied for are open to settlement, ■and, finally, whether the applicant, in offering to prove up,.
No section in the statutes makes any decision of the register and receiver final in express terms, and no section, by direct inference, implies that any decision of the local officers is not subject to revision and supervision, unless it be section 2273; which provides that “all questions as to the right of pre-emption arising between different settlers shall be determined by the register and receiver of the district within which the land is situated; and appeals from the decision of the district officers, in ease of contest for the right of pre-emption, shall be made to the commissioner of the general land-office, whose decision shall be final, unless appeal be taken to the secretary of the interior.” While this section is peculiar in its language, and in its terms is confined to pre-emption claims, and makes the decision of the commissioner final in such cases, unless appeal be taken to the secretary of the interior, and while it omits to state that the decision of the register and receiver shall be final unless an appeal be taken therefrom, yet the section has been generally construed to mean that, in case of contest as to the rights of pre-emption, the decision of the local officers, as to matters of fact, is final, unless an appeal be taken; and has generally been so respected by the department and the courts. Outside of this section we look in vain for an appeal from the decision of the local officers, or any section giving them the right of “determining” any question connected with their duties. It has been the practicó, however, as I am informed, to permit appeals from the local officers to the commissioner and secretary upon many, if not all, the applications made by settlers, in any matters affecting their rights to the public lands; but this is done under, the rules and regulations of the department, which form a large part of the land law of the country. It is therefore left very indefinite by the statutes as to what is the character of the jurisdiction exercised by the secretary and the commissioner over the local officers. In but one section is appellate jurisdiction expressly named, and there no provision is made as to procedure upon appeal, or
It is said, proof must be made to the “satisfaction of the register and receiver only, as to residence and improvements, and that, upon making such proof, the entry-man receives his certificate, which entitles him to a patent; that the commissioner has no power to cancel this certificate; that the power of cancellation is essentially a judicial one; that the right conveyed by the certificate is a vested one; and that he cannot be deprived thereof without due process of law.” This is a plausible statement of the proposition. But, in the first place, the commissioner or secretary is not seeking to pass upon the rights-of the parties in a collateral proceeding; they are only reviewing, for the purpose of approval or rejection, the action of subordinate officers. They are not seeking to take original juris
And the impropriety of the term “vested right,” as applied to fraudulent entry, is apparent upon the statement of the proposition. It is true, the honest settler who has made proof to the .satisfaction of the local officers has an inchoate right — a sort of determinable fee — in the land, and, to that extent, a “vested right.” If the land is subject to entry, and the claimant has the necessary qualifications, and has honestly complied with the .statutes, and the rules and regulations of the department, he
But it is said, the court is a so much better forum in which to determine such questions that congress could never have-intended to allow men who are not generally lawyers to pass upon such important rights of the people. This argument-might be urged with much greater force in case of contesting settlers for the same land, — a question in which the government has no interest further than that the land be awarded to the-one entitled thereto; but in such cases the law may be said te be settled by the highest tribunal in the land that the decision of the department upon all questions of fact in such cases is-final, and cannot be reviewed in the courts.
■ How, then, can it be argued that the courts can step in, pending the determination of a case in the land department, and cancel the final certificate or receipt, or annul any act of the department, or of one of its subordinate officers, in which public-interests are involved? Congress has chosen, under its constitutional powers, to place the sale and disposition of the public lands under the management and supervision of the secretary of the interior. The land department is a bureau or tribunal,, with its superior and subordinate officers; with its appellate and supervisory powers; and it is invested with the power to-sell and dispose of the public lands of the United States, subject to statute law and such rules and regulations as the depart
Judgments of the higher courts are not beyond its jurisdiction. All executive and legislative acts are subject to its supervision when they are founded in fraud or mistake, or come within any of the well-known rules of equitable jurisdiction. It is upon and within this principle that the courts of equity have examined and reviewed the decisions of the land department. Courts of law, however, are powerless to act in such eases. No court of law can pronounce judgment upon any act of the land department, declaring it invalid, unless the act be absolutely void and of no effect; but the court of equity will review their acts so far as to determine whether its officers have violated or misconstrued any law under which they have acted, ¿nd whether they have been imposed upon by fraud or mistake, and by which the rights that have been conferred upon one settler should have inured to the benefit of another; and if it is found, upon an investigation of their proceedings, that such error has been committed, it will be corrected, not by declaring their acts void, but by declaring them to have done what the law presumes they would have done but for the commission of such error, and by decreeing the title to the land which passed by the patent to the one so entitled thereto.
Such being the law as announced by the courts, what absurd results would follow the decision that no tribunal but a court could cancel a final certificate once issued!
Must the commissioner and secretary pause when, in the exer- • cise of their supervisory powers, they find the local officers have been imposed upon by fraud, and go to the courts, where litigation may be prolonged for years, before the ease can be closed upon the books of the department? And when a decision were once reached, of what binding force or effect would it be upon the department ? It is very clear, within the decisions, that the courts of equity would not cancel the certificate. The most they could do would be to declare that the certificate belonged to another; and, as the courts cannot control the department in
The better rule then is, as laid down by the courts, that they will not interfere with the acts of the land-officers so long as the department has jurisdiction to act, or until its jurisdiction has ceased, and its determination become final, by issuance of the patent. And the reason for this rule is that so long as any tribunal has jurisdiction of the subject-matter, and errors have occurred, the presumption is that it will correct such errors before its jurisdiction ceases. Within this rule, our own supreme court at the May term, 1886, in Territory v. District Court, 30 N. W. Rep. 145, dismissed the writ of certiorari, because it appeared in the proceedings that the motion had been made in the court below, and was undetermined, to .vacate or modify the order complained of; and, if this is true as to appellate courts in matters for review by certiorari or appeal, a fortiori the principle may be invoked in cases like the present, where the courts have no power to review by appeal or otherwise, and where their judgments are without force to order the department to act, or cease to act.
The principles here enunciated, and the conclusions of law arrived at, are deducible from, and, in our judgment, are fully sustained by, the decisions of the supreme court-of the United States, and the later decisions of the supreme courts of the different states. As early as Bagnell v. Broderick, 13 Pet. 436, the supreme court of the United States announced the doctrine “that congress has the sole power to declare the effect and precedence of titles to the public lands emanating from the United States; and that, whatever may be the equities outstanding in third persons, the patentee has the legal title; and that the state law cannot confer upon the equitable owner the right to maintain ejectment against the patentee.” See, also, Wilcox v. Jackson, 13 Pet. 498.
Barnard’s Heirs v. Ashley’s Heirs, 18 How. 43, is one much in point upon the proposition that the action of the register and
“ The necessity of ‘supervision and control,’ vested in the commissioner, acting under the direction of the president, is too manifest to require comment further than to say that the facts found in this record show that nothing is more easily done than apparently to establish, by ex parte affidavits, cultivation and possession of particular quarter sections of land when the fact is untrue. That the act of 3836 modifies the powers of registers and receivers, to the extent of the commissioner’s action in the instance before us, we hold to be true; but if the construction of the act of 1836, to this effect, were doubtful, the practice under it for nearly twenty years could not be disturbed without manifest impropriety.”
While this decision was founded upon the act of 1836, it will be observed that the provisions of the section quoted, upon which the court relies for the power of the commissioner to reverse the action of the local officers on questions of fact, do not materially differ from the powers conferred by sections 441, 453, Rev. St. U. S., upon the secretary of the interior and the commissioner of the general land-office; and the concluding portion of the quotation, that, “if the construction of the act were doubtful, the practice for nearly twenty years could not be disturbed without manifest impropriety, ” applies with equal and greater force to the case at bar; for the practice which it seems by that decision obtained under the act of 1830, and was continued under the act of 1841, of returning the proofs and allegations to the local office, with instructions to call the parties before them for inquiry into the matters therein charged, and
Justice Miller, in Johnson v. Towsley, 13 Wall. 82, referring to this decision, and the power of supervision vested in the commissioner and secretary, says: “By the first section of the act to reorganize the general land-office, approved July 4, 1836, it was enacted that the executive duties now prescribed, or which may hereafter be prescribed, by law, appertaining to the surveying and sale of the public lands, and the issuing of patents for all grants of land, under the authority of the United States, shall be subject to the supervision and control of the commissioner of the general land-office, under the direction of the president of the United States. In the case of Barnard’s Heirs v. Ashley’s Heirs, 18 How. 45, it was held that this authorized the commissioner to entertain appeals from decisions of the register and receiver in regard to pre-emption claims, and it is obvious that the direct control of the president was contemplated whenever it might be invoked.”
Bell v. Hearne, 19 How. 252, was a ease where the receiver, under the act of 1820, made two receipts for the purchase money,— one in the right name of “ John Bell,” and the other, which he forwarded to the general land-office, in the name of his brother, “James Bell,” — and the patent was issued to “James Bell;” but the commissioner of the general land-office in 1850, 11 years after the entry, upon his attention being called to these facts, recalled the patent, and changed the certificate from “James Bell” to “John Bell.” Counsel for James Bell and his grantees denied the power of the commissioner to change the certificate, or to recall the patent; but the court, denying the position of counsel, by Justice Campbell says: “The question, then, arises, had the commissioner of the general land-office authority to receive from John Bell the patent erroneously issued in the name of ‘James Bell,’ and to issue one in the proper name of the purchaser ? And the question, in our opinion, is exceedingly clear. The commissioner of the general land-office exercises a general
In Magwire v. Tyler, 1 Black, 195, the secretary of the interior set aside a survey made under a confirmed Spanish grant, and ordered another to be made, and a patent issued under it; and the supreme court, in sustaining the action of the secretary, and the commissioner of the general land-office acting under his direction, uses the following language: “By the act of July 4, 1836, reorganizing the general land-office, plenary powers are conferred on the commissioner to supervise all those surveys of public lands, and ‘ also such as relate to private claims of land and the issue of patents.’ By the act of March 3,1849, the interior department was established. The third section of the act vests the secretary, in matters relating to the general land-office, including the powers of supervision and appeal, with the same powers that were formerly discharged by the secretary of the treasury. The jurisdiction to revise on the appeal was necessarily co-extensiv.e with the powers to adjudge by the commissioner. We are therefore of the opinion that the secretary had authority to set aside Brown’s survey of Labeaume’s tract, order another to be made, and to issue a patent to Labeaume, throwing off Brazeau’s claim.” 1 Black, 202.
The case of Harkness v. Underhill, Id. 316, is in point in the determination of the question before us. It is true, the rights of the parties were founded upon the pre-emption acts of 1832 and 1834, and that other questions were before the court, such as estoppel, the rights of innocent purchasers, etc., and were determined in the case; but the question here presented was there squarely presented, and passed upon by the court. The case is not very well reported; the decision itself not stating the facts, and the statement of facts given by the reporter being somewhat obscure. Yet it sufficiently appears from the case, as
In Gaines v. Thompson, 7 Wall. 347, the secretary of the interior having directed the commissioner of the general land-office to cancel an entry under which Gaines and others claimed a. right to certain lands in Arkansas, they brought suit in the circuit. court of the District of Columbia to restrain such cancellation, setting up their equitable claim to the land. The commissioner entered a plea to the jurisdiction of the court to interfere by injunction, and upon appeal to the supreme court of the United States the plea was sustained. Says the court, by Miller, J.: “Certain powers and duties are confided to those officers,, and to them alone; and however the courts may, in ascertaining the rights of parties in suits properly before them, pass upon the legality of their acts, after the matter has once passed beyond their control, there exists no power in the courts, by any of its processes, to act upon the officer so as to interfere with the-exercise of that judgment, while the matter is properly before-him for action. The reason for this is that the law reposes this-discretion in him for that occasion, and not in the courts. The-doctrine, therefore, is as applicable to the writ of injunction as-it is to the writ of mandamus.” A similar doctrine is announced by the court in Secretary v. McGarrahan, 9 Wall. 298, where a mandamus was brought to compel the affirmative action of the secretary to issue a patent upon showing made.
Litchfield v. Register, 9 Wall. 575, was a case in' which Litch-field claimed to be the owner of a large tract of land granted to the territory of Iowa for improving navigation of the Des Moines river, and he brought this action to restrain the register and receiver from allowing persons to file upon such lands. The bill was very full, setting out the grant and his claim of title; that the lands were in no manner public lands, nor subject to entry at the land-office; and that his title would become clouded by entry, etc. The bill was demurred to for want of jurisdiction, and the demurrer was sustained on appeal to the supreme court of the United States. Mr. Justice Miller, delivering the opinion of the court, says: “He says the court below erred because it did not require them to come in and answer to his claim of title, and at their own expense to put the court in possession of their views, and defend their instructions from the commissioner, and convert the contest before the land department into one before the court. This is precisely what this court has decided that no court shall do. After the land-officers shall have disposed of the question, if any legal right of the plaintiff has been invaded, he may seek redress in the courts. He insists that he now has the legal title. If the land department finally decides in his favor, he is not injured. If they give patents to the applicants for pre-emption, the court can then, in the appropriate proceeding, determine who has the better title or right. To interfere now is to take from the officers of the land department
Johnson v. Towsley, 13 Wall. 72, was a contest between preemption claimants, in which the local land-officers decided, upon the facts, in favor of Towsiey, and the commissioner on appeal affirmed their decision, but the secretary of the interior reversed the decision of the commissioner, and awarded the land to Johnson, not upon the facts, but upon the ground that Towsiey was not a qualified pre-emptor, having already filed a declaratory statement for another tract of land. A patent having issued to Towsiey before appeal to the secretary of the interior was taken, and a junior patent having, notwithstanding, issued to Johnson after decision of the secretary of the interior, Towsiey brought this action to remove cloud, etc. The case was very elaborately argued, and the supreme court, by Miller, J., goes over the entire ground of the jurisdiction of the courts to review the action •of the land department, and affirms the decree of the supreme court of Nebraska in declaring the second patent void, upon the ground of misconstruction of law by the secretary of the interior. The court reaffirms its former decisions in which the action of the department upon questions of fact, or of mixed law and fact, is declared to be final, and puts the right of the court of equity to review the action of the land department upon the same ground which gives it jurisdiction to examine judgments of courts of law, or the decisions of any tribunal procured through fraud, mistake, etc. Upon the questions of jurisdiction the court says: “But, while we find no support to the proposition or counsel for plaintiffs in error in the special provisions of the statute relied on, it is not to be denied that the argument is much stronger when founded on the general doctrine that, when the law has •confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others. That the action of the land-office in issuing a patent for any of the public land, subject to sale by preemption or otherwise, is conclusive of the legal title, must be
Myers v. Croft, 13 Wall. 291, merely holds that the pre-emptor after entry, and before patent issues, may dispose of or sell the land. It is merely a judicial construction of the words of the pre-emption act, “all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.” It was and had been contended that all conveyances after entry, and before patent issue, were, by force of this statute, null and void; and that ease merely decides that the prohibition goes to transfers of the pre-emption right, and not to transfers of the land. The case in no respect intimates that the grantee would get any better title than his grantor had, or that any title would pass if the grantor had not in good faith entered the land conveyed; but the concluding portion of the opinion indicates very strongly the contrary opinion of the court: “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 pre-emption, leaving the pre-emptor free to sell his land after the entry, if at that time he ■was in good faith the owner of the land, and had done nothing inconsistent with the provisions of the law on the subject.”
This very provision against the assignment or transfer of the
The case of Marquez v. Frisbie, 101 U. S. 473, is directly in point, and announces the rule very clearly which must govern this case. The appellant brought his action in the state court, alleging — First, that the land department mistook the law of the case; second, that its decision was obtained by fraud. The. subject-matter of the suit was a quarter section of land which had been awarded to appellees by the local land-officers upon a contest ■of the pre-emption right, and their decision had been affirmed on •appeal by the commissioner and the secretary of the interior. The appellant was in possession, and prayed that the title which might pass by issue of the patent to appellees should be conveyed to or inure to his use and benefit; that he be declared the true owner; and that his right to the legal title be paramount.
The case was heard in the inferior state court on demurrer to the petition, which was sustained; and the judgment there rendered against plaintiff was affirmed by the supreme court of the •■state, from which judgment the plaintiff appealed to the supreme •court of the United States. The patent bad not issued, but the •decision of the secretary of the interior, it seems, had been rendered, directing patent to issue. The supreme court, in affirming the judgment of the court below, and denying the plaintiff’s
After the United States has parted with its title, and the individual has become vested with it, the equities subject to which he holds it may be enforced, but not before. Johnson v. Towsley,
Here is distinctly announced by the supreme court the doctrine that the courts will not interfere to determine the rights; of parties while the case is pending before the department, even when the decision of the department is already announced, before patent issues. The case is still in fieri until the patent is issued. The case is quite in point; but a much stronger ease is here presented for the application of the rule announced, where the court is asked to pronounce upon the validity of the .final receipt prior to the contest or review had by the commissioner or secretary.
U. S. v. Schurz, 102 U. S. 378, is a case in which the patent had been signed, sealed, and recorded, and sent to the local office for delivery, and had been subsequently recalled by the department. The proceeding was by mandamus on the part of the patentee to compel delivery of the patent by the secretary of the interior, and the question was whether the title had passed to^ the patentee, so that he was entitled to the delivery of the patent.. It was contended, on the one side, that title passed by delivery of the patent, as in case of a deed; and, by the other side, that it passed by record. The court adopted the latter view, and held' the act of delivery a mere ministerial act; that the title passed by record of the patent in the general land-office; that the jurisdiction of the land department was then at an end, and the courts could then take jurisdiction and compel a delivery.
The case was ably presented, and the opinion by Justice Miller reviews the entire jurisdiction of the courts to interfere with the acts of the land department, and lays down the rule, affirming the former doctrine, already announced, that the court will not interfere with the action of the land department until its jurisdiction ceases, and that such jurisdiction ceases when the patent issues or is recorded in the general land-office. Says
The action of the secretary in recalling the patent in this case was sought to be sustained by showing that the land was not subject to homestead entry, and that the patent was therefore void; but the court, in answer to this proposition, and further defining the powers of the land department, says: “To the officers of the land department, among whom we include the secretary of the interior, is confided, as we have already said, the administration of the laws concerning the sale of the public domain. The land, in the present case, had been surveyed; and, under their control, the land in that district generally had been open to pre-emption, homestead entry, and sale. The question whether any particular tract belonging to the government was open to sale, pre-emption, or homestead right, is in every instance a question of law, as applied to the facts, for the determination of those officers. Their decision of such question, and of conflicting claims to the same land by different parties, is judicial in its character. It is clear that the right and the duty
In Quinby v. Conlan, 104 U. S. 420, the holder of the patent brought ejectment to recover possession, and the defendant set up his defense, claiming to be the equitable owner, and demanding conveyance of the legal title, upon the grounds — First, that he was the prior pre-emptor, and that the land came within the Mexican grant entitling him thereto; but the court,in a careful review of the case, and denying the right of the court of equity to interfere, reaffirms the doctrine of the former cases, that upon all questions of fact the findings of the land department are final, and extends the.rule to mixed questions 'of law and fact as well; and further says that thé misconstruction of law which will authorize a court of equity to interfere must be clearly manifest, and it must appear that the fraud relied upon must necessarily have affected the action of the department. The court says: “It would lead to endless litigation, and be fruitful of evil, if a supervisory power were vested in the courts over the action of the numerous, officers of the land department on mere questions of fact presented for their determination. It is only when those officers have misconstrued the law applicable to the case, as established before the department, and thus have denied to parties rights which, upon a correct construction, would have been conceded to them, or where misrepresentations and fraud have been practiced, necessarily affecting their judgment, that the court can, in a proper proceeding, interfere and refuse to give effect to their action. On this subject we have repeatedly and with emphasis expressed our opinion, and the matter should be •deemed settled. Johnson v. Towsley, 13 Wall. 72; Shepley v.
Steel v. Smelting Co., 106 U. S. 447, 1 Sup. Ct. Rep. 389, was ejectment brought by the holder of the patent to recover possession. The defendant set up various defenses at law, and a counter-claim for improvements. A demurrer to the answer was sustained, and the question reached the supreme court of the United States upon the judgment sustaining the demurrer; and that court held that no defense at law could be set up against the patent; that infirmities of title upon which the patent was based could only be reached in a court of equity. The court, by Field-, ,T., in reiterating the doctrine so often asserted, almost impatiently adds: “We have so often had occasion to speak of the land department, the objects of its creation, and the powers it possesses in the alienation by patent of portions of the-public lands, that it creates an unpleasant surprise to find that counsel, in discussing the effect to be given to the action of that department, overlook our decisions on the subject.
“That department, as we have repeatedly said, was established to supervise the various proceedings whereby a conveyance of title from the United States to portions of the public domain is obtained, and to see that the requirements of different acts of congress ■ are fully complied with. Necessarily, therefore, it must consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it' is of the class which is open to sale. Its judgment upon these matters is that of a special tribunal, and
Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. Rep. 249, was a case of contest between two homesteaders for the same quarter section of land. The local officers decided in favor of Johnson, and the commissioner on appeal affirmed’the decision; but the secretary of the interior reversed the decision of the officers below, and awarded the patent to Lee. Upon suit instituted by Johnson in the state court of Michigan, the supreme court of that state took jurisdiction, an’d entered decree compelling conveyance to Johnson, upon the ground that the question before the register and receiver was whether Johnson had abandoned the land, and upon that question their decision was sustained by the commissioner; but that the secretary of the interior, while admitting the correctness of their decision upon the question of abandonment, awarded the patent, to Lee on the ground that no settlement was ever made by Johnson, as required by the homestead act, — a question not before him on appeal, — and that
‘.‘If, however, those officers mistake the law applicable to the facts, or misconstrue the statutes, and issue a patent to one not entitled to it, the party wronged can resort to a court of equity to correct the. mistake, and compel the transfer of the legal title to him as the true owner. The court, in such a case, merely directs that to bé done which those officers would have done if no error had been committed. The court does not interfere with the title of a patentee when the alleged mistake relates to a matter of fact, concerning which those officers may have drawn wrong conclusions from the testimony. A judicial inquiry as to the correctness of such conclusions would encroach upon a jurisdiction which congress has devolved exclusively upon the department. It is only when fraud and imposition have prevented the unsuccessful party in a contest from fully presenting his case, or the officers from fully considering it, that a court will look into the evidence. It is not enough, however, that
While, from this review of the decisions of the supreme court of the United States, it will be observed that the court has uniformly declined to review the action of the land department until its jurisdiction has ceased, and to determine the finality of title until after the patent has issued, yet it is nowhere denied that courts of law may not always be appealed to, in furtherance of the decisions of the department during its exercise of jurisdiction, to protect the possession of the settler upon the public lands. And the undoubted weight of authority, as evidenced by the decision of the courts of last resort in the various states and territories, is in accordance with the views expressed by the supreme court of the United States.
In Root v. Shields, 1 Woolw. 340, Judge Miller, of the United States supreme court, at the circuit, sustaining the action of the commissioner in canceling the prior entry of Root, a pre-emptur, and in issuing patent to a junior purchaser, upon the ground that the prior entry was void as coming within the boundaries of the incorporated city of Omaha, says: “It is further insisted, on behalf of the defendants, that they are bona fide purchasers, and that they, as such, are entitled to the protection of the court. I think it pretty clear that some, at least, of these defendants purchased and paid their money without any knowledge in fact of any defect in the title. Yet they are not bona fide purchasers for a valuable consideration without notice, in the sense in which the terms are employed in courts of equity; and this, for
The decisions of various state courts will be more intelligently comprehended in grouping them by states. Arnold v. Grimes, 2 Iowa, 1, is cited and much relied upon as announcing a contrary doctrine. The case is an early one. Arnold first entered the land in controversy under the pre-emptioh act of 1840, and obtained a final certificate. Then Chapman, who settled upon the land about the same time, after Arnold’s entry, applied for leave to contest. After considerable correspondence, and after Chapman had notified the commissioner that Arnold had conveyed the land by deed, prior to his entry, which deed in fact, however, had been obtained by Chapman himself by fraud and duress, upon Chapman’s letter; the commissioner directed an inquiry by the register and receiver; and, they finding such deed to have been made, the commissioner canceled Arnold’s entry. Subsequently Arnold went to the court, and got the obnoxious deed set aside, and declared null and void, as having been executed under duress. He then applied to the department to have his entry reinstated; but in the mean time Chapman had been allowed to enter the land, and patent had been issued to him. The department at first declined to interfere, and advised Arnold to go to the courts; saying that the department would not have permitted Chapman’s entry if the deed had been canceled when he made application to enter the land. And, upon fur
This case was determined in December, 1855, and it. would •seem that the case of Barnard’s Heirs v. Ashley’s Heirs, 18 How. 43, decided at the December term, 1855, had not then been handed down, for no mention is made of the case; and the doctrine announced is in direct conflict with the statements of Judge ■Catron, that an appeal did lie to the commissioner from the «register and receiver by virtue of the section that gave him supervision and control.
In Bellows v. Todd, 34 Iowa, 31, the homestead entry of the •defendant, under which he claimed to hold the land, had been
It does not appear from the decision upon what ground the entry had been canceled, and no reference is made to Arnold v. Grimes, supra. The court seems to laydown the proposition as one about which state courts do not differ, and one which is at rest in that state.
Sillyman v. King, 36 Iowa, 207, and Cady v. Eighmey, 7 N. W. Rep. 102, clearly decide that the equitable title is in the holder of the receipt; that the legal tifie, which passes by patent, dates back to such certificate or receipt, notwithstanding the remark of the court in the last case that the “issuance of the patent is a mere ministerial act,” etc.
The case of Brill v. Stiles, 35 Ill. 309, is cited and relied upon as authority holding that the commissioner has no power to cancel the final certificate, and that his doing so is void; and the strong language of the court — that “the mere fact that it was so declared by the commissioner of the general land-office did not have the effect of vacating the entry. He is not a judicial officer, and has no power to decree rescissions of contracts. His determination in reference to the validity of that sale concluded
The plaintiff had a clear equitable title to the land on the allegations of the bill. It was a private entry, subject only to be defeated by a pre-emption filing within 30 days, — a contingency which the bill alleges did not arise; and the defendant alleges that he does not know on what ground the commissioner canceled the entry. He did not cancel the entry on a question of fact, if the allegations of the bill are true; for there was but one contingency that could defeat him, to-wit, the filing of a pre-emption within 30 days, and that did not happen. The inference is that he must have canceled the entry upon some question of law; and such rulings of the commissioner, whether in the matter of canceling certificates or other executive action, is always open to review, and this was evidently the view of the court; for, following the language quoted, the court says: “If the entry was authorized bylaw, the title passed to him, subject only to be defeated by proof of a right of pre-emption; and, if unauthorized, he acquired no title. But until it was shown to have been illegally made, or to have been defeated by proof of a
There was also another fatal objection, says the court, to the ruling of the lower court, to-wit, “that the objection to the bill could only have been raised by demurrer,” and not by motion.
But it will be idle to take time to examine the Illinois decisions further, and to reconcile any apparent conflict in them; for that court itself has saved us the trouble. In Robbins v. Bunn, 54 Ill. 48, after citing Brill v. Stiles, supra, and other decisions apparently in conflict with Gray v. McCance, and others, the court says:
“These two classes of cases may seem, at first, inconsistent with each other, and there are probably some expressions in the various opinions not strictly harmonious, but on further consideration it will be seen there is no real antagonism in the decisions. The cases in the first class [referring to Gray v. McCance, 14 Ill. 344, and others] relate to pre-emption claims upon which the land-officers have decided. .The pre-emption law of 1830 required proof of the facts upon which the right of pre-emption depended, to be made to the satisfaction of the register and receiver, agreeable to rules to be prescribed by the commissioner of the general land-office. This, by implication, gave them the right to decide all cases of contested pre-emption, so far as they depend upon the fact of prior settlement; and this construction has been uniformly given to the law, as will be seen by the cases before cited, and in other authorities quoted in the opinions pronounced in those cases. The finding of the land-officers upon the facts in matters of pre-emption has been held conclusive by the courts, upon the familiar ground that such officers, in these proceedings, were acting in a quasi judicial capacity, and within the scope of their authority.
“But, on the other hand, when these officers have undertaken to cancel a patént or a certificate of entry for which a purchaser has paid his money, either at their discretion, or under some pretended regulation of the department which the law did not authorize, or under some clearly erroneous construction of the
This case was subsequently reversed by the supreme court of the United States, eo nomine, Moore v. Robbins, 96 U. S. 530, upon the ground that, as to the defendant Moore, the secretary of the interior had no power to entertain an appeal after the-patent had issued, and as to the other defendant the secretary erred in a matter of law; but the principle of law announced by the Illinois court, above quoted, is confirmed by the supreme-court, and the language of Justice Field in Shepley v. Cowan, 91 U. S. 340, js quoted, and approved as “aptly” stating the views of that court: “The officers of the land department are-especially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public-lands, with a view to secure rights of pre-emption. If they err in the construction of the law applicable to any case, or if a fraud is practiced upon them, or if they themselves are charged with fraudulent practices, their rulings may be reviewed and annulled by the courts when a controversy arises between private-parties .founded upon their decision; but for mere errors of judgment upon the weight of evidence in a contested case before them the only remedy is by appeal from one officer to another of the department, and perhaps, under special circumstances, to the president.”
In McLane v. Bovee, 35 Wis. 27, McLane brought ejectment-under his patent, and Bovee set up in defense that final certifi
That the commissioner of the general land-office had authority to cancel the certificate of Moon, for cause, at any time before patent issued, cannot be doubted. Such powers have beeéi constantly exercised by the land-officers of the government, and the exercise thereof sustained by the courts ever since our land system was established. We here find the limitation'on the fee, or its determinable quality inferred by law, mentioned in the above definition.
In Trulock v. Taylor, 26 Ark. 54, such titles are termed ‘inchoate legal titles.’ The title of Frederick Bovee, which was established by the former judgment, was legally determined by the cancellation of Moon’s certificate of entry after the former action was commenced, and the whole.title became thereby vested in the United States. The patent to MeLane, the present plaintiff, conveyed that title to him, and, as we have seen, he may assert it in this action.”
Cornelius v. Kessel, 58 Wis. 237, 16 N. W. Rep. 550, is quoted as holding that the commissioner had no power to cancel the final certificate. The case is imperfectly reported. There is no statement of facts, and it would seem that the entry which was canceled was a private entry, made in 1856. The court says: “The land, then, was subject to entry. It was purchased
In Franklin v. Kelley, 2 Neb. 79, is a very interesting discussion on the right of assignment before issue of the patent. The case was determined before Myers v. Croft, 13 Wall. 294, had been decided. The opinion is an elaborate one, announcing the doctrine, subsequently sustained by the United States supreme court, that a deed of lands made after entry, and before issue of the patent, is valid; but as the-circuit court of the United States had held such deed void, and the United States supreme court had not then passed upon the question, the learned judge covered a wide field in his discussion of the question; and one point made in the argument of the court is that the provision of the statute was designed to cut off the right of innocent purchasers, and to give the supervisory officers time to examine the rights of the entry-man before the patent issues. Says the court: “The act of 1S41 provides that the entry shall be made
This is a very clear statement of the powers and duties of the superior officers of the land department.
In Smiley v. Sampson, 1 Neb. 56, Judge Mason reviews all the eases in which the courts have looked into the facts in reviewing the action of the department, including Lindsey v. Hawes, 2 Black, 554; Garland v. Wynn, 20 How. 8; Lytle v. Arkansas, 22 How. 192; and others — and asserts that, in every one of these cases, the decision of the officers of the land department was obtained on ex parte affidavits, and not upon a hearing in which witnesses were examined and parol testimony taken. This case was one of the first to announce that the decisions of the land department were final upon questions of fact, and was affirmed in the supreme court of the United States. The case went up with Johnson v. Towsley, supra; and, nearly the same questions
In Hestres v. Brennan, 50 Cal. 211, plaintiff brought ejectment under his title from the state, and the defendants answered, alleging that they had entered the land under the preemption law, and presented their certificate of entry. It appears that, after entry by the pre-emptors and the issue of final certificate, the secretary of the interior canceled the certificates, and conveyed the lands to the state of California as having been selected prior to the entry by the defendants; but it does not appear that any appeal had ever been taken to the secretary; and it was contended — First, that the secretary had no power to cancel such entry; and, second, if he had such power, it would only be on appeal to him from the commissioner. But the court denied both propositions, and, in sustaining the act of the secretary in canceling the certificates, the court says: “The act of congress establishing the department of the interior confers upon the secretary the supervision of public business relating to several subjects, among which is that of public lands. The commissioner of the general land-office is vested with the authority to perform executive duties appertaining to the survey, sale, etc., of the public lands, ‘under the direction of the secretary of the interior;’ and the subordinate officers of the land department are subject to the supervision of the commissioner. Bev. St. U. S. §§ 441, 453, 2478. Both the secretary of the interior and the commissioner, in revising the acts of the subordinate officials of the land department, exercise supervisory rather than appellate power, in the sense in which the word ‘appellate’ is employed in defining the powers of courts of justice. The secretary of the interior, in the exercise of such authority, may approve, modify, or annul the acts, proceedings, and decisions of the commissioner. If, however, this power is to be regarded as an appellate power in a legal sense, it will be observed that the statute has not provided the machinery for
The power of the commissioner to cancel the final certificate has been determined by the Minnesota court in a number of cases, commencing with Randall v. Edert, 7 Minn. 450, (Gil. 359;) Gray v. Stockton, 8 Minn. 529, (Gil. 472;) and ending with Judd v. Randall, 29 N. W. Rep. 589. In the latter case the land was a commuted homestead, upon which final proof and payment had been made in November, 1878, and final receipt had been issued. The homesteader subsequently had sold the land, and thereafter, in June, 1882, and before the issue of patent, upon application and affidavits made by a third party-to the commissioner of the general land-office, a hearing was ordered as to whether the final proof was fraudulent or obtained by perjury. Such hearing was had before the register and receiver, the entry was reported by them to the commissioner for
In Ferry v. Street, (Utah,) 11 Pac. Rep. 571, the court holds,
In Arizona, in Jeffords v. Hine, 11 Pac. Rep. 351, it was. sought to defend against the patent by the party claiming a prior right, and to have a decree of title, on the ground that the receiver had acted as registerand receiver both, the office of the register being vacant, and that the^department holding that he was a de facto officer was error of law'Hh.ut the court held that it was a mixed question of law and fact, wMfihwould not be disturbed by the courts.
In Kansas, Darcy v. McCarthy, 12 Pac. Rep. 104, a very interesting case. Darcy originally had a homestead emXV on the land in controversy, which McCarthy contested, and ¡obtained it to be canceled, which, under the act of 1880, gave him the preference right of 30 days in which to file thereon or make entry. He availed himself of the right to enter the land as a homestead within 30 days. Subsequently, and after the expiration of the 30 days, Darcy was permitted to file a declaratory statement, alleging settlement prior to McCarthy’s entry, and, under this declaratory statement, was permitted to prove up, and obtained the final receipt. McCarthy thereupon made application to the commissioner to have such receipt canceled, which was done by the commissioner, it appearing to him that
In Washington Territory, in Hays v. Barker, 3 Pac. Rep. 901, the action was ejectment, and the defendant was not allowed to prove that the certificate relied upon to maintain plaintiff’s action had been canceled. This the supreme court held was error, and also announced the doctrine, contained in the decisions of the supreme court of the United States, “that it appeared from the record of the case that proceedings were then pending before the land department, and that the courts would not take jurisdiction of the case until the matter was finally terminated by the issue of the patent,” and judgment was reversed.
In Forbes v. Driscoll, 31 N. W. Rep. 633, this court held that it would not interfere to determine questions which involve the pre-emption right between settlers; that congress has established a tribunal to decide all questions of fact that arise in determining to whom the government will sell or dispose of its land; and that, prior to the issuing of the patent, the courts will not
We have examined Judge Deady’sopinion in Smith v. Ewing, 23 Fed. Rep. 741, i'n which he arrives at a different conclusion from that reached by us; and, in so far as the opinion denies the authority of the commissioner, under the direction of the secretary of the interior, to cancel the final receipt once issued, the decision stands alone, and is unsupported by the authorities cited by the learned judge.
The power of supervision given the secretary and commissioner is a general one, — a supervision 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 presentation of the certificate', and that the issue of the certificate concludes all inquiry into matters settled by its issue, then it concludes all supervision by the superior officers; and on that reasoning the patent might as well issue by the local as by the supervisory officers. We are led to adopt the contrary of this reasoning. In our judgment, the secretary of the interior, and, “under his direction,” the commissioner of the general land-office, is “charged, with the supervision of the public lands” for the very purpose of preventing frauds, mistakes, and errors in the disposition of such lands by the local officers; and when such officers have committed errors or mistakes, or have been imposed upon by fraud, the entire case may be re-examined upon appeal, or so far supervised, in the usual course of transmission through the department, as to expose and correct such errors or frauds, to the end that the patent may issue to the pre-emptor honestly entitled to it under the law. Any other rule would make the “right of pre-emp
We are led, then, to the conclusion that, prior to the issuance’ of the patent, the plaintiff cannot maintain this action. This-court cannot know but- that the department may issue to him,, instead of the defendant, a patent for the premises in controversy ; and if his claim is just and right, (a question upon which this court does not pass,) the law presumes he will obtain a patent, upon the ground that all officers are presumed to act justly, and to do their duty.
In this opinion we have studiously avoided intimating what may be the rights of the plaintiff under any other form of action.. It is sufficient for this case that this action cannot be maintained,, for the reasons given. The judgment must be reversed, and the= case remanded, with instructions to dismiss the complaint.
