Howe v. Parker

Citation190 F. 738
Decision Date12 October 1911
Docket Number3,580.
PartiesHOWE et al. v. PARKER et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

(Syllabus by the Court.)

Patents and decisions of the Land Department of the United States may be avoided and the legal title under them charged with a trust in favor of the rightful owner of the equitable title to the land on account of an error of law or a gross mistake of fact, or a fraud upon the officers of the department, by a direct suit in a court of equity for this purpose.

Whether or not there is any evidence to sustain a charge, a claim, or a finding of fact in a controversy before the Land Department over the title to the public land is a question of law, and an error in the decision of that question which results in the issue of a patent to the wrong party is remediable in equity.

The Land Department has jurisdiction upon legal notice to divest entrymen of their equitable titles to lands within its power for fraud before the final order for the patent in accordance with the settled rules, practice, and decisions of that department.

But the equitable title to land acquired by a lawful entry cannot be divested or affected by subsequent decisions of the Land Department or subsequent rules of practice therein contrary to a long line of decisions, or an established rule, or a settled practice at the time.

Neither the general nor the supervisory jurisdiction of the Commissioner or the Secretary is so arbitrary or unlimited as to permit such a course of action.

It was a rule of reason, of law, and of property in 1898 established by a long line of decisions of the officers of the Land Department that, in the absence of fraud and of collusion between the parties, an adjudication that an informer's charge against a homesteader was unfounded was a bar to a contest against him by another informer on the same charge and a decision to the contrary in that state of the law was an error of law.

Where the equitable title to land based on an adjudicated homestead entry of their ancestor and five years occupation and improvement rests in heirs of the entryman, it is indispensable to a divesting thereof by the Land Department that legal notice of the charge against them and its hearing be given them.

The publication of a summons or notice for the first time less than 30 days before the day of hearing is insufficient to give such legal notice by publication under rule 13 of the Land Department (31 Land Dec. Dept. Int. 530).

Statements of the appearance of parties in opinions of officers, in recitals of the proceedings, or by attorneys on pleadings and other documents in a case in which their appearance and authority to appear for them was never questioned or in issue, will not prevail on a demurrer over the averment of the parties that they never received legal notice of the proceedings, and never appeared or authorized an appearance therein in a direct proceeding to litigate the issue thus tendered.

The Act of March 1, 1889, and Act March 2, 1889 (Act March 1, 1889 c. 317, Sec. 2, 25 Stat. 759; Act March 2, 1889, c. 412, Sec 13, 25 Stat. 1005), which prohibited entry upon and occupancy of any of the lands ceded by the Creek Nation by their agreement of January 31, 1889, until noon of April 22, 1889 and disqualified any one who violated this inhibition from entering any of the lands as a homestead, did not disqualify one who entered upon the ceded land after March 2 and prior to noon of April 22, 1889, but who made the race for the tract he sought from outside the ceded land after noon of April 22, 1889, unless it be shown that manifest disadvantage in the race for the land resulted to some qualified entryman from such entry.

They did not disqualify such an one who learned outside the ceded land from one who had acquired all the information he had or communicated prior to March 1, 1889, the description, character, and location of the tract of land therein which he subsequently entered and the best way to go to it so that he could go directly to and identify it without further aid or information.

They did not disqualify such an one with whom his informant agreed to meet him near the land and go with him to it and did so, where the entryman could as well have gone to and recognized the land from his previous information without the meeting and accompanying and the meeting and conduct gave him no advantage and subjected no qualified entryman to any disadvantage in the race for the land.

These acts of Congress may not be construed after the entries of lands thereunder to include within their prohibitions and disqualifications classes of persons or of acts that were not clearly within their unambiguous terms when the entries were made.

A 'sooner' in the parlance of Oklahoma is one who to the injury of other intending settlers enters on and claims land as his homestead before such entry and claim are effective to initiate a valid homestead under the acts of Congress.

Milton Brown and James M. Challiss (Waggener & Challiss and Flynn, Ames & Chambers, on the brief), for appellants.

J. H. Everest (T. F. McMechan, R. M. Campbell, and C. F. Smith, on the brief), for appellees.

Before SANBORN and SMITH, Circuit Judges, and WILLIAM H. MUNGER, District Judge.

SANBORN Circuit Judge.

This is an appeal from a decree which sustained a demurrer to and dismissed the bill of the complainants. On this demurrer the question whether or not the averments of the bill are true is, of course, not open to consideration, and the only question is whether or not the facts alleged state a cause of action for equitable relief. This is the case they state: Henry Howe, an aged minister of the gospel, made a homestead entry of the S. E. 1/4 of section 27, township 12 N., of range 3 w., of the Indian Meridian, in Oklahoma, on April 23, 1889, built himself a house upon, and with his daughter, Sarah J. Howe, occupied and improved it as his homestead until, hounded by sooners under Act March 1, 1889, 25 Stat. 759, Sec. 2, and Act March 2, 1889, 25 Stat. 1005, Sec. 13, and 1006, Sec. 14, and by informers under Act May 14, 1880, c. 89, Sec. 2, 21 Stat. 141, and fought by the lawyers he had retained to defend him, he died intestate on June 17, 1893.

A 'sooner,' in the parlance of Oklahoma, is one who, to the injury of other intending settlers, enters upon and claims land as his homestead before such entry and claim are effective to initiate a valid homestead under the acts of Congress. The act of Congress of March 1, 1889, provided that the lands in the western half of the domain of the Creek Nation, where the land in controversy is situated, which were acquired by the United States by the Creek Nation's agreement and cession of January 31, 1889, should be disposed of in accordance with the laws regulating homestead entries, but that:

'Any person who may enter upon any part of said lands in said agreement mentioned prior to the time that the same are opened for settlement by act of Congress, shall not be permitted to occupy or make entry of such lands or lay any claim thereto.' 25 Stat. 759, Sec. 2.

Congress on the next day by the act of March 2, 1889, opened the land for settlement and prescribed terms on which homestead claimants might acquire it. That act provided that the land should be disposed of to actual settlers under the homestead laws only, and that:

'Until said lands are opened for settlement by proclamation of the President, no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands or acquire any right thereto.' 25 Stat. c. 412, Sec. 13, page 1005.

On March 23, 1889, the President issued his proclamation that this land would be opened for settlement at noon of April 22, 1889. His proclamation contained these words:

'Warning is hereby expressly given that no person entering upon and occupying said lands before said hour of 12 o'clock noon of the twenty-second day of April A.D. one thousand eight hundred eighty-nine hereinbefore fixed, will ever be permitted to enter any of said lands or acquire any right thereto.' 26 Stat. 1546.

About 2 o'clock and 30 minutes in the afternoon of April 22 1889, Howe first entered upon the land here in dispute. He then claimed it as his homestead, and thereafter continued to reside upon and improve it. Two sooners, Miss Robb and Mr. Woodruff, had previously entered upon and claimed the land as their homesteads, respectively, but Howe made his homestead entry at the land office on April 23, 1889, and on May 9, 1889, and on May 21, 1889, respectively, these sooners filed affidavits that they were, respectively, the first to enter upon and occupy the land after noon of April 22d, and that Howe entered upon and occupied it before that time. Howe employed one John Burton, a practicing lawyer at Oklahoma City, to defend his claim against Robb and Woodruff, and disclosed to him as his lawyer the facts of his case, and thereupon Burton on September 6, 1889, turned informer and filed an affidavit of contest for himself under section 2 of the act of May 14, 1880, which gives the successful informer a preference right to enter the land of a homestead claimant. Burton set forth in that affidavit the charge which he and subsequent informers, Milton E. Parker on February 18, 1891, John T. Hornor on April 10, 1901, and others enlarged, that Charles Howe, the son of Henry Howe, entered upon and occupied the tract of land in question before noon of April 22, 1889, wrote Henry Howe that he had selected and was holding this tract for him, and when Henry Howe arrived at Oklahoma City on April 22, 1889, he, Charlie Howe, met and accompanied him to the land, and Henry Howe made his...

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