¶0 1. DEMURRER.--Facts Admitted. Where a pleading is demurred to, all the facts well pleaded are admitted for the purpose of the demurrer.
2. EJECTMENT.--Duplicate Receipt. Section 411 of Nebraska civil code does not authorize a recovery in ejectment on a register and receiver's duplicate receipt.
3. LAND DEPARTMENT.--Courts. The land department of the government will not be interfered with by the courts while it has charge of any contest proceedings between adverse claimants of the land.
Appeal from district court, Oklahoma county.
This is an ejectment which comes to this court on appeal from the third district of Oklahoma county, John G. Clark, Justice.
The petition is as follows:
"The plaintiff, a citizen of the United States, residing in the county aforesaid, brings suit against said defendants, who are also residents of the aforesaid territory and county and citizens of the United States, and for cause of action says, that the plaintiff is the homestead settler on the following tract of land situated and being in the county of Oklahoma and territory aforesaid, and more particularly described as follows: The S.W. 1/4 of sec. 33, tp. 12 N, of range 3 W., containing 160 acres. That on the 23rd day of April, 1889, he filed homestead entry on said tract of land in the United States land office at Guthrie, Oklahoma, being application and homestead entry No. 9, and received duplicate receipt of the receiver of said land office, being duplicate receipt No. 9, a copy of which is hereto attached and marked Exhibit "A." Plaintiff states that by reason of his settlement and entry aforesaid, he became the equitable owner and legally entitled to the possession of the aforesaid land, and that he still resides on a part of said land and occupies and cultivates the same as his homestead, and that he is legally entitled to the possession of the entire tract under and by virtue of his aforesaid settlement and homestead filing; that under and by virtue of section 411 of the civil code of practice, under the title of evidence of the statute of the state of Nebraska, made applicable to and extended over the Territory of Oklahoma by provisions of the act of congress approved May 2, 1890, establishing and providing a territorial government for said Territory it is provided as follows: The usual duplicate receipt of the receiver of any land office or, if that be lost or destroyed, or beyond the reach of the party, the certificate of such receiver that the books of his office show the sale of a tract of land to a certain individual, is proof of title equivalent to a patent against all but the holder of an actual patent. The plaintiff states that being the owner aforesaid and entitled to the possession of the aforesaid tract of land said defendants did, on or about the first day of October, 1889, unlawfully enter upon and occupy about forty-five acres off the south end of said tract of land, being all that part lying south of the extension of the street called Grand avenue, of the City of Oklahoma, on and through said tract of land and all the east eighty acres of said tract of land, and still illegally, unlawfully and forcibly hold and occupy the part of said tract aforesaid to the damage of the plaintiff to the sum of five hundred dollars. The plaintiff says he is the legal owner and entitled to the possession of the aforesaid land so wrongfully, illegally and forcibly occupied, held and detained as aforesaid by said defendants, wherefore he prays judgment for the recovery of the possession of said land together with five hundred dollars damage, for the wrongful detention thereof and for other proper relief.
A. GREEN,
C. M. GREEN,
D. C. LEWIS,
H. S. CUNNINGHAM,
Attorneys.
John C. Adams says he is the plaintiff, and that he believes the statements of the foregoing petition are true.
AMOS GREEN,
Attorney for J. C. Adams.
Subscribed and sworn to before me this 8th day of September, A. D. 1890.
By HENRY P. GREEN, Deputy.
Copy Exhibit "A."
Copy 4, 138. Homestead. Receiver's duplicate receipt No. 9.
Application No. 9.
RECEIVER'S OFFICE.
GUTHRIE, OK. TY, April 23, 1889.
Received of John T. Adams the sum of fourteen dollars cents, being amount of fee and compensation of register and receiver for the entry of the S.W. 1/4 of sec 33 in tp. 12 N., of range 3 W. Under section 2290 Revised Statutes of the United States.
$ 14.00.
C. M. BARNES, Receiver.
The special answer of Cynthia Couch is as follows:
"Comes now Cynthia Couch, one of the above defendants and for answer to plaintiff's complaint and petition herein states:
"1. That to-wit, April 22, 1889, she was the lawful wife of William Couch and remained his wife until he departed this life on 1889.
"2. That to-wit, April 22, 1889, said William Couch settled upon, improved, and began a residence upon the S.W. 1/4 sec. 33, tp. 12 N., range 3 W., the same being the land described in plaintiffs petition, filed herein, and continued such settlement, residence and improvement upon said land until he departed this life.
"3. That at the time said William Couch settled upon the land as aforesaid, the same was a part of the public domain, open to settlement, under and by virtue of the provisions of the general homestead law, which said law was duly enacted by the Congress of the United States and was in force and effect in the Territory of Oklahoma, and was the only law under which said land could be segregated from the public domain of the United States.
"4. That afterward and within ninety days from the date of his said settlement, as aforesaid, said William Couch filed in the United States land office at Guthrie, Ok. Ter., his homestead application to enter the S.W. 1/4, Sec. 33, Twp. 12 N. of Range 3 W., as his homestead, and at the same time submitted affidavits to show his qualifications to enter said land under the general provisions of the homestead law applicable to the Territory of Oklahoma, and which said application so filed as aforesaid was by the land office at Guthrie, Ok., rejected for the reason that said land had been previously entered as a homestead by the plaintiff in this action.
"5. Defendant further avers that within ninety days from April 22, 1889, the said William Couch filed in the United States land office at Guthrie, Ok., his contest affidavit duly corroborated, in manner and form as provided by the rules of practice, in force in said land office, and in said contest affidavit alleged in substance that he, William Couch, settled upon, improved and began his residence on the S.W. 1/4, Sec. 33, Twp. 12 N., of Range 3 W., on the 22nd day of April, 1889, prior to the date upon which said John Adams filed his homestead entry for said tract of land, and prior to the date on which said John C. Adams settled upon the same, and further alleges that said John C. Adams was disqualified from entering any land as a homestead, within the Territory of Oklahoma, for the reason said Adams entered the Territory of Oklahoma subsequent to March 2, 1889, and prior to noon, April 22, 1889, with the intent to settle upon lands therein, and asked the register and receiver to grant him relief by cancelling the homestead entry of said Adams and to permit his, William Couch's application for said land, to be placed on record.
"6. Defendant avers that at the time said William Couch settled upon the tract of land as aforesaid, and at the time he filed his homestead application therefor, and contest affidavit against the entry of plaintiff herein, the United States land office at Guthrie, Ok. Ter., was, by virtue of the acts of Congress, vested with full jurisdiction to try and adjudicate all questions arising between plaintiff herein and said William Couch, relating to the rights of said parties to file their entry for said land, and to try and determine which of said parties had the exclusive right to occupy and hold possession of the same, and further, that the United States land office, now located at Oklahoma City, Ok, Ter., now has all the powers and jurisdiction heretofore vested in the Guthrie land office, and that the matters in controversy pending between the aforesaid parties are still undetermined in said land office at Oklahoma City.
"7. Defendant further avers that the United States land office at Oklahoma City has full and complete jurisdiction to determine all matters set forth in plaintiff's petition filed herein; that such jurisdiction is, by the Congress of the United States, vested in said land office, and that Congress has, by special enactment, created the land office at Oklahoma City for the purpose of trying all matters set forth in the plaintiff's petition, and that this court has no jurisdiction to hear or determine the questions set forth in said petition.
"8. Defendant further avers that she, as the widow of William Couch, deceased, is entitled to all rights in the tract of land described in plaintiff's petition which were vested in William Couch at the time of his death.
"9. Defendant denies the right of the court sitting in and for the county of Oklahoma, Ok. Ty., to eject the defendant from the tract of land described in the plaintiff's petition, or in any manner to interfere with her use and occupation of the same.
"Wherefore defendant prays a dismissal of this action.
CYNTHIA COUCH,
By her Att'y, FRANK DALE."
John M. Dawson filed an answer which is as follows:
"Comes now John M. Dawson, one of the above named defendants, and for a separate answer to the complaint of the plaintiff says:
"First. That he denies each and every material allegation made by the plaintiff in said complaint.
"Second. Defendant denies that plaintiff is the owner of or entitled to the possession of said tract of land described in his complaint, as against this defendant.
"Third. Defendant alleges the truth to be that the supposed title of pl
...
