Bogan v. Edinburgh American Land Mortg. Co., 438.

• Decision Date: 10 September 1894
• Docket Number: 438.
• Citation: 63 F. 192
• Parties: BOGAN v. EDINBURGH AMERICAN LAND MORTG. CO., Limited.
• Court: U.S. Court of Appeals — Eighth Circuit

63 F. 192

BOGAN v. EDINBURGH AMERICAN LAND MORTG. CO., Limited.

No. 438.

United States Court of Appeals, Eighth Circuit.

September 10, 1894

Tracy R. Bangs (Charles J. Fisk, on the brief), for appellant.

F. B Morrill, for appellee.

This was a bill by the Edinburgh American Land Mortgage Company Limited against Patrick Bogan, to compel defendant to convey certain land to complainant. There was a decree for complainant, and defendant appeals. Reversed and remanded.

This is an appeal from a decree of the circuit court for the district of North Dakota to the effect that the appellant, Patrick Bogan, holds the patent to a quarter section of land in that district in trust for the Edinburgh American Land Mortgage Company, Limited, a corporation, and that he shall convey the title he holds to the mortgage company. The equitable rights of the company, on which the decree rests, arose as follows January 6, 1881, James Irwin filed in the proper land office of the United States his application to enter the land as a homestead under section 2289, Rev. St., and that application was accepted, the fees received, and the proper receipt issued to him by the register and receiver of the local land office. December 21, 1881, he proved up, paid the minimum price for this land, and received from the register and receiver the usual final certificate and receipt under sections 2259 and 2301 of the Revised Statutes, Irwin was an alien when he filed his application for this land, but on December 21, 1881, and before he purchased the land, he declared his intention to become a citizen as required by the naturalization laws. Immediately after he purchased the land he mortgaged it to the appellee for

$400, and the patent certificate and the mortgage were recorded in the office of the register of deeds in the county in which the land is situated before any of the rights of the appellant accrued. November 10, 1882, the commissioner of the general land office canceled the entries of this land by Irwin on the ground that he was an alien when he made his application to enter the land as a homestead. In October or November, 1883, the appellant, Patrick Bogan, applied to enter this land as a homestead, and a patent was issued to him for it September 17, 1890, pursuant to that application. In 1892 the mortgage company foreclosed its mortgage against Irwin by advertisement, and, soon after the year of redemption had expired, brought this suit.

Before BREWER, Circuit Justice, and CALDWELL and SANBORN, Circuit Judges.

SANBORN Circuit Judge, after stating the facts as above, .

On December 21, 1881, under section 2259 of the Revised Statutes, the United States sold the land in dispute to one who had then declared his intention to become a citizen, received the purchase price, and issued to him the usual final receipt or patent certificate. Upon the statements contained in that receipt the mortgage company loaned its money, and by the foreclosure of its mortgage acquired all the rights of the purchaser. Had the commissioner of the general land office the right to declare a forfeiture of the rights of the mortgagor and of the lien of the mortgage 10 months later, because the purchaser, Irwin, had not declared his intention to become a citizen January 6, 1881, before he filed his application for a homestead? Where the register and receiver hear the application of a party to enter land, as a pre-emptor, or otherwise, decide in favor of his right, receive his money, and give him a certificate that he is entitled to a patent, he thereby acquires a vested right to the land that can only be divested according to law. Johnson v. Towsley, 13 Wall. 72, 85. There is no doubt that the commissioner of the general land office may review and set aside the action of the register and receiver before the patent issues, where their decision is induced by fraud, perjury, or mistake, or results from an erroneous view of the law. Swigart v. Walker (Kan.) 30 P. 162; Jones v. Meyers (Idaho) 26 P. 215; U.S. v. Steenerson, 1 C.C.A. 552, 50 F. 504; Fernald v. Winch (Kan.) 31 P. 665; Mortgage Co. v. Hopper, 56 F. 67. But the supervisory or reviewing power of the commissioner of the land office or of the secretary of the interior is not an arbitrary, unlimited, or discretionary power, but a power that must be exercised according to the law, and not in violation or in disregard of it. Where it is so exercised, and its exercise is not induced by fraud or mistake, the results it produces are sustained by the courts. Where its exercise has been induced by fraudulent misrepresentations or by material mistake of fact, or where the power has been exercised in violation or in disregard of the law, the results produced are uniformly so modified by the decrees of the courts that those who are entitled in equity to the titles to the lands ultimately obtain them. No principle is more firmly established in American jurisprudence than that, after the title has passed from the United States to a private party, it is the province of the courts to correct the errors of the officers of the land department, which have resulted from fraud, mistake, or erroneous views of the law, to declare the legal title to the lands involved to be held in trust for those who have the better right to them, and to compel their conveyance accordingly. Cunningham v. Ashley, 14 How. 337; Barnard's Heirs v. Ashley's Heirs, 18 How. 43; Garland v. Wynn, 20 How. 6; Lytle v. State of Arkansas, 22 How. 193; Lindsay v. Hawes, 2 Black, 554, 562; Johnson v. Towsley, 13 Wall. 72, 85; Moore v. Robbins, 96 U.S. 538; Bernier v. Bernier, 147 U.S. 242, 13 Sup.Ct. 244. Thus in Johnson v. Towsley, supra, the register and receiver held that Towsley was entitled to the patent to the land in question, and issued the final receipt to him under the pre-emption law, notwithstanding the fact that he had previously filed his declaratory statement on some unsurveyed land that he subsequently abandoned. The secretary of the interior held that filing fatal to his right, and issued the patent to Johnson. Towsley then brought his suit in equity, and the supreme court held that he had the better right, and that Johnson held the title in trust for his benefit. In the opinion that court declares that in every case where the register and receiver, by their decision, sale, and patent certificate, vest the right to the land in the entryman, and the land office afterwards sets aside this certificate, and grants the land thus sold to another person, it is of the very essence of judicial authority to inquire whether this has been done in violation of law, and, if it has, to give appropriate remedy. So in Silver v. Ladd, 7 Wall. 219, the register and receiver held that Elizabeth Thomas, an unmarried woman, was entitled to the benefits of the act of June 25, 1862, which in terms confers its benefits on single men and heads of families only, and issued a donation certificate to her. The commissioner held otherwise, and issued the patent to another. The supreme court sustained the ruling of the register and receiver, and declared the title under the patent to be held for the benefit of Miss Thomas and her grantees. From these authorities it clearly appears that it was the province and duty of the court below to consider and determine the question presented in this case. Here there was no question of fact, no fraud, no mistake,-- nothing but a question of law.

Was the action of the commissioner, forfeiting the rights of the entryman and of his mortgagee to this land, 10 months after the register and receiver had vested them by their sale and certificate, on the sole ground that the entryman had not declared his intention to become a citizen until just before he made his purchase, in accordance with or in violation of the law? Section 2259 of the Revised Statutes, which grants pre-emption rights, provides:

'Every person, being the head of a family, or widow, or single person, over the age of twenty-one years, and a citizen of the United States, or having filed a declaration of intention to become such, as required by the naturalization laws, who has made, or hereafter makes, a settlement in person on the public lands subject to pre-emption, and who inhabits and improves the same, and who has erected or shall erect a dwelling thereon, is authorized to enter with the register of the land office for the district in which such land lies, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter-section of land, to include the residence of such claimant, upon paying to the United States the minimum price of such land.'

Section 2289 of the Revised Statutes, granting homestead rights, provides, among other things, that:

'Every person who is the head of a family or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who has filed his declaration of intention to become such, as required by the naturalization laws, shall be entitled to enter one quarter-section or a less quantity of unappropriated public lands, upon which such person may have filed a pre-emption claim, or which may, at the time the application is made, be subject to pre-emption at one dollar and twenty-five cents per acre.'

Section 2301 of the same chapter provides that:

'Nothing in this chapter shall be so construed as to prevent any person who has availed himself of the benefits of section twenty-two hundred and eighty-nine, from paying the minimum price for the quantity of land so entered, at any time before the expiration of the five years, and obtaining a patent therefor from the government, as in other cases directed by law, on making proof of settlement and cultivation as provided by law, granting pre-emption rights.'

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