Delles v. Second National Bank of Brownsville

Citation7 Wyo. 66,50 P. 190
PartiesDELLES v. SECOND NATIONAL BANK OF BROWNSVILLE ET AL
Decision Date27 September 1897
CourtUnited States State Supreme Court of Wyoming

Commenced in District Court December 16, 1895.

ERROR to the District Court for Albany County. HON. J. H. HAYFORD Judge.

This was an action brought by the defendants in error, the Second National Bank of Brownsville, Pennsylvania, Hilda Lamb, and Allie C. McMechan, for the possession of certain lands located in Albany County. The petition alleged a legal estate in said lands, a right to their possession, and that the defendant Joseph Delles unlawfully kept the plaintiffs out of possession. The answer admitted possession of the defendant but denied the title of plaintiffs. Plaintiffs had judgment and defendant prosecuted error. The material facts are stated in the opinion.

Affirmed.

Lacey & Van Devanter, for plaintiff in error, contended that the various proceedings in the land office and by the commissioner of the General Land Office, resulted in a valid cancellation of the entry under which defendants in error claimed and cited Caldwell v. Bush (Wyo.), 45 P. 488. It was insisted that the cancellation occurred in a case initiated by the entryman, and therefore no notice to him was required; but that as the matter was within the general jurisdiction of the Land Office, and the record of that office shows notice, it is not competent by parol to contradict the fact of notice, citing 1 Black on Judg., Sec. 287.

C. P. Arnold, and N. E. Corthell, for defendants in error.

The power of the land department to cancel final entries is conceded, but that power is subject to welldefined limitations. (Caldwell v. Bush, 45 P. 488; Cornelius v. Kessel, 128 U.S. 122.) The cancellation in this case was void for want of notice, and there must have been a hearing to give it validity. (Orchard v. Alexander, 157 U.S. 372; Houston v. Coyle, 2 L. D., 61; Stayton v. Carroll, 7 L. D., 200; Lundy v. Hoebel, id., 49; Lecocq cases, 2 id., 784; Neal v. McMullen, 9 id., 523.) The record affirmatively shows want of notice.

Presumptions in favor of proceedings of courts are only indulged in relation to those jurisdictional facts concerning which the judgment is silent. (1 Freeman on Judg., 125, 130; 1 Black on Judg., 277; 18 Wall., 350; 13 Wis. 569; 34 Cal. 391; 123 Mo. 270; 60 F. 220; 97 U.S. 444: 110 id., 708.)

POTTER, JUSTICE. CONAWAY, C. J., and CORN, J., concur.

OPINION

POTTER, JUSTICE.

Plaintiff in error complains of a judgment of the district court for Albany County in favor of the defendants in error for the recovery of the possession of the southwest quarter of section four (4), in township sixteen (16), north of range seventy-six (76), west of the sixth principal meridian, located in the county of Albany in this State. Said lands were public lands of the United States, the strict legal title to which remained in the government, no patent having issued to any one therefor.

The right of the defendants in error to the possession of the land was claimed by reason of final certificate from the United States upon a desert-land entry, including that tract with others, made by one Thomas J. Fisher and sundry mesne conveyances, which vested in them all the right, title, and interest of said Fisher under his said entry.

Plaintiff in error was in possession under a homestead entry, made February 15, 1894, for which he held receiver's duplicate receipt; and it was claimed on his behalf that the entry of Fisher had been canceled, and that there were no existing rights thereunder. To sustain that claim there was introduced in evidence, upon the trial, a letter of the assistant commissioner of the General Land Office to the register and receiver of the local land office, dated November 20, 1888, wherein it is stated that in June, 1877, Thomas J. Fisher applied to enter certain lands, including the tract in controversy, under the desert-land act, which application being defective in form and unaccompanied by the payment required, was rejected, and returned to the applicant. That in the meantime on September 5, 1877, one Henry Carver filed a declaratory statement, No. 444, covering the land in controversy, alleging settlement August 10, 1877. That Fisher initiated a contest against the claim of Carver upon which a hearing was had, both parties appearing with witnesses February 19, 1878. That on April 19, 1880, Fisher made desert-land entry No. 197 for the land, and on July 3, 1880, the declaratory statement of Carver was canceled upon relinquishment. That April 29, 1880, the commissioner decided that according to the testimony adduced in the trial of February 19, 1878, the tract of land then in controversy was clearly shown to be non-desert in character within the meaning of the desert-land act, so that irrespective of other considerations, Mr. Fisher's entry is without foundation in fact or in law; and approved the action of the local office in rejecting the same in favor of Mr. Carver's declaratory statement, and advising the local office to notify claimant of his right to appeal. That February 16, 1883, the Register reported that Mr. Fisher had taken no appeal upon his D. L. E., No. 197. That April 9, 1883, final certificate was issued upon the same. The letter then proceeds as follows: "In view of the commissioner's decision, as above noted, based upon the evidence given during the trial, that the land embraced in D. L. E., No. 197, was not properly subject to entry under the D. L. act, said entry is therefore held for cancellation, and sixty days allowed for appeal. You will advise the party in interest of the contents of this letter, in accordance with the instructions contained in circular of October 28, 1886, copy herewith inclosed, and at the proper time report the result to this office."

There was introduced by the defendants in error a letter dated Jan. 11, 1889, from the receiver of the local land office to Mr. Fisher, referring to the above-mentioned letter of the commissioner, and notifying him of the effect thereof, and also a letter from the register to the same party, dated March 11, 1890, referring to the former letter, and notifying him of the effect of the same letter of the commissioner, and that he had sixty days from the receipt of such letter of March 11, 1890, to file his appeal from the decision of the commissioner of November, 1888. Subsequently by letter of the register to the commissioner the registry return letter to Fisher uncalled for, and registry return receipt unsigned, was inclosed and transmitted to show service of notice, and the letter stated that no action had been taken in the matter. From the other correspondence between the commissioner's office and the local office which we find in the evidence, it appears that June 17, 1890, the commissioner wrote the register and receiver stating that they had on May 28, 1890, reported for cancellation for expiration of statutory period the desert-land entry of Thomas J. Fisher, No. 197, F. C. No. 48, and that the entry "has therefore been this day canceled."

Upon these facts it is insisted that the entry of Fisher was duly canceled, and that neither he nor his grantees had thereafter any interest in the premises. The additional fact ought to be mentioned that, on the trial, it was sought to prove the death of Fisher...

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6 cases
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    • United States
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