American Mortg. Co. of Scotland v. Hopper

• Decision Date: 02 October 1894
• Docket Number: 154.
• Citation: 64 F. 553
• Parties: AMERICAN MORTG. CO. OF SCOTLAND, Limited, v. HOPPER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

64 F. 553

AMERICAN MORTG. CO. OF SCOTLAND, Limited, v. HOPPER et al.

No. 154.

United States Court of Appeals, Ninth Circuit.

October 2, 1894

This is a suit instituted by appellant to have the appellees decreed to hold the legal title to the S.W. 1/4 of section 4 township 2 N., of range 31 E. of the Willamette meridian acquired by him under a patent from the United States in trust for appellant, and to compel the appellees to convey to it such title, and to surrender to it the possession of said premises. Appellant's claim is based upon a pre-emption entry made by one George Waddel. The claim of the appellees is under a homestead title. The facts are stipulated, and the essential points are as follows: On October 10, 1882, Waddel being a qualified pre-emptor, made a cash entry under the pre-emption laws of the United States of the land in controversy. He paid thereon $400, and received a duplicate receivers's receipt therefor, which was duly recorded in the records of deeds of Umatilla county, where the land in question was situated. On October 11, 1882, Waddel obtained a loan from the Oregon & Washington Mortgage Savings Bank for $850, and executed his note and mortgage upon the property in question to secure the loan. In effecting this loan the bank acted as the agent of appellant, to which it duly assigned the note and mortgage on October 25, 1882; the mortgage and assignment thereof being both duly recorded on the respective dates of their execution. On September 10, 1885, appellant brought suit against Waddel and his successors in interest to foreclose the mortgage. A decree of foreclosure was entered February 13, 1886, and the property was sold to appellant May 1, 1886, for $1,250. The sale was thereafter confirmed, and on October 24, 1887, the sheriff executed his deed to appellant, and the deed was then duly recorded. On May 5, 1885, the appellee Thomas R. Hopper made application in the local land office to enter the land in dispute under the homestead laws of the United States, and filed a contest against the entry of Waddel, charging that such entry was made by Waddel for the use and benefit of another, and that thereby the entry had been effected in violation of the pre-emption laws of the United States. The commissioner of the general land office ordered a hearing as to the validity of Waddel's entry, and the result of this hearing was that on November 30, 1885, Waddel's entry was canceled in the local land office; and thereafter such cancellation was approved to make his homestead entry. In the regular course of the proceedings had under this homestead entry, a patent was duly recorded in the proper land on June 12, 1891, which patent was duly recorded in the proper records of Umatilla county on August 4, 1891. The money paid by Waddel is still retained by the government. The cancellation of Waddel's entry was on the ground that it was fraudulently made for the benefit of another person. Neither the savings bank nor appellant was made a party in the proceedings to contest the Waddel entry, and neither had actual knowledge of any failure by Waddel to comply with the laws of the United States under which the entry was made, nor was appellee Hopper made a party defendant in the foreclosure suit, although he was in possession of the premises at the time. Prior to the commencement of this suit, appellant brought suit in ejectment against appellees, and the circuit court held that ejectment would not lie, and that the only remedy was in equity. Mortgage Co. v. Hopper, 48 F. 47. In this suit the circuit court dismissed the bill of complaint, and entered judgment in favor of appellees for their costs. 56 F. 67.

Snow & McCamant, for appellant.

Stott, Boise & Stott, for appellees.

Before McKENNA, Circuit Judge, and HAWLEY, District Judge.

HAWLEY District Judge (after stating the facts).

1. Preliminary to any consideration of this case upon its merits, it becomes necessary to notice the contention of appellant that, under the decisions of the circuit court of the United States for the district of Oregon, in Smith v. Ewing, 23 F. 741, and Wilson v. Fine, 40 F. 52, a rule of property has been established which it is the duty of this court to adhere to upon the doctrine of stare decisis, and that the judgment herein should be reversed upon this ground, without any review of the suit upon its merits. An adherence to the doctrine of stare decisis, in a proper case for its application, is undoubtedly necessary to preserve certainty and uniformity in the stability and symmetry of our jurisprudence. When the courts of last resort have announced principles affecting the acquisition of title to real estate, and the principles thus announced have been long established, frequently recognized and conformed to, and property rights have been acquired thereunder, it has generally been held that such decisions should not be overturned, although the principles announced therein might otherwise be questioned; but our attention has not been called to any decided case directly upon the question here involved, and, from the diligence of counsel in citing cases upon other points, it is extremely doubtful if any could be found where the doctrine of stare decisis has been applied to the decision or decisions of a circuit court of the United States from which no appeal was taken. There are seven districts in this circuit, and it would be a strange doctrine to advance, if the decisions in the different districts were not uniform, that this court would be bound to adhere to such decisions in each district, because a rule of property was involved, without regard to the merits of the case. The contention of appellant upon this point cannot be maintained. In The Madrid, 40 F. 677, Justice Lamar said:

'The decisions of the circuit court of the United States not being uniform upon the general question at issue in this case, it can hardly be said that any of them has become a rule of property, within the principle of the doctrine of stare decisis.'

2. The merits of this case present several important questions. In Smith v. Ewing the court proceeded upon the theory that when a certificate of purchase is issued to a pre-emptor in due form, and no appeal is taken, the land described in the certificate becomes the property of the pre-emptor. 'He has the equitable title thereto, and has a right to the legal one as soon as the patent can issue in the due course of proceeding. ' If it be true that the issuance of a final receipt or certificate of payment by the receiver of a local land office absolutely ends the control of the land department over the land, and deprives the United States of the title thereto, then it would necessarily follow that the act of the commissioner in this case in setting aside and canceling the entry of Waddel would be null and void. But is this principle correct? How stand the decisions of the various courts upon this subject? What are the conclusions to be drawn therefrom? The authorities are too numerous to be singly reviewed. The facts too variant to be stated. We are of opinion that the general trend and logical effect of the decisions of the supreme court of the United States virtually establish the following propositions concerning the disposition of the public lands of the United States, viz.: (1) That the land department of the government has the power and authority to cancel and annul an entry of public land when its officers are convinced, upon a proper showing, that the same was fraudulently made; (2) that an entryman upon the public lands only secures a vested interest in the land when he has lawfully entered upon and paid for the same, and in all respects complied with the requirements of the law; (3) that the land department has control over the disposition of the public lands until a patent has been issued therefor and accepted by the patentee; and (4) that redress can always be had in the courts where the officers of the land department have withheld from a pre-emptioner his rights, where they have misconstrued the law, or where any fraud or deception has been practiced which affected their judgment and decision. Bell v. Hearne, 19 How. 252; Gaines v. Thompson, 7 Wall. 347; Litchfield v. Register and Receiver, 9 Wall. 575; Secretary v. McGarrahan, Id. 298; Johnson v. Towsley, 13 Wall. 72; Myers v. Croft, Id. 291; Yosemite Val. Case, 15 Wall. 77; Shepley v. Cowan, 91 U.S. 330; Moore v. Robbins, 96 U.S. 538; Marqueze v. Frisbie, 101 U.S. 473; Quinby v. Conlan, 104 U.S. 420; Smelting Co. v. Kemp, Id. 636; Lee v. Johnson, 116 U.S. 48, 6 Sup.Ct. 249; Steel v. Refining Co., 106 U.S. 447, 1 Sup.Ct. 389; Cornelius v. Kessel, 128 U.S. 456, 9 Sup.Ct. 122. The same principles have been announced in the circuit court of appeals (U.S. v. Steenerson, 1 C.C.A. 552, 50 F. 504; Germania Iron Co. v. U.S., 7 C.C.A. 256, 58 F. 334; Mill Co. v. Brown, 7 C.C.A. 643, 59 F. 35), and in several of the state courts (Swigart v. Walker (Kan.) 30 P. 162, and numerous authorities there cited). In Cornelius v. Kessel the supreme court of the United States said:

'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. The 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 the course of law before they could be canceled, the necessary delays attending the examination would

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