Everett v. Wallin
| Decision Date | 21 October 1921 |
| Docket Number | 22,351 |
| Citation | 184 N.W. 958,150 Minn. 148 |
| Parties | ROSE EVERETT v. EMANUEL WALLIN |
| Court | Minnesota Supreme Court |
Action in the district court for Beltrami county to adjudge defendant the holder of the legal title of certain premises from the U.S. government in trust for plaintiff, and that he execute a deed thereof to her. The case was tried before McClenahan, J., who made findings and ordered judgment in favor of plaintiff. From orders denying his motions for amended and additional findings and conclusions or for a new trial, defendant appealed. Affirmed.
Public land -- reference of claim special agent not a pending contract.
1. Following the construction placed by the Federal decisions upon the proviso to section 7 of the act of March 3, 1891 relating to the issuance of patents for government lands, it is held that, after individual contests of a homestead entry had terminated, there was no pending contest of or protest against the entry, and that the reference of the entry by the land department to a special agent for investigation, did not amount to a contest or protest until a formal proceeding to cancel the entry was instituted by the United States.
Fraudulent entryman entitled to patent.
2. The fact that the entryman perpetrated a fraud upon the United States in making and establishing his entry, did not take the case out of the operation of the proviso, and, after the lapse of two years from the date of his final receipt, he was entitled to have a patent issued to him.
Action lies -- equitable maxim does not apply to case.
3. Neither does that fact preclude plaintiff, who has succeeded to the rights of the entryman, from maintaining an action against defendant, to whom the patent was issued, to have the legal title to the land transferred to her. The maxim "he who comes into equity must come with clean hands," does not apply where a suitor asserts rights in land acquired from a third person by fraud at a time when defendant had no valid claim to the land and was himself a party to the fraud.
Middleton & Middleton, for appellant.
Marshall A. Spooner, for respondent.
By this action plaintiff seeks to have defendant adjudged to be the holder of the legal title to certain lands in trust for her and that he be required to execute a conveyance to her. The findings were in plaintiff's favor and defendant has appealed from an order denying his motion for a new trial.
These are the undisputed facts so far as material to the present litigation:
On November 12, 1903, one Peter Extram made a homestead entry upon which he offered commutation proof on August 6, 1906 and on August 17, 1906, obtained the receiver's final receipt and a certificate of final entry covering the lands in question. Extram and the defendant Wallin were fellow workmen, natives of Sweden and unfamiliar with our laws and in good faith agreed before the entry was made that Wallin should bear half the expense of making and perfecting the entry and obtaining title and that when title was obtained, Extram would convey a specified half of the land to Wallin.
Subsequently their agreement was reduced to writing and signed by both on December 10, 1903. Wallin carried out his part of the agreement and both parties made permanent improvements, each, on the portion of the land which was to be his under the terms of their agreement. We assume that the agreement was contrary to public policy and unenforceable. Anderson v. Carkins, 135 U.S. 483, 10 S.Ct. 905, 34 L.Ed. 272; Hafemann v. Gross, 199 U.S. 342, 26 S.Ct. 80, 50 L.Ed. 220; Bailey v. Sanders, 228 U.S. 603, 33 S.Ct. 602, 57 L.Ed. 985; St. Peter Co. v. Bunker, 5 Minn. 153 (192).
In making final proof Extram testified that he had not theretofore sold, conveyed or mortgaged any portion of the land, and Wallin, who was one of his witnesses, testified that he was not interested in the claim.
August 22, 1906, Extram conveyed the entire tract to plaintiff. November 23, 1906, Wallin filed a contest affidavit, attacking Extram's entry on the ground that it was fraudulently made and established. The ground of the contest was that he, Wallin, at all times had an interest in the land under his contract with Extram.
December 11, 1906, the commissioner of the general land office rejected the application for leave to contest the entry, advising the Crookston land office where it had been filed, that the entry would be referred to a special agent for investigation. March 29, 1907, the secretary of the interior affirmed the commissioner's action, and repeated that the entry would be referred to a special agent. June 19, 1907, the case was closed, leaving the Extram entry intact. February 11, 1907, one Norton filed an application to contest the entry on substantially the same charges as Wallin had made. June 16, 1907, the commissioner directed the Crookston office to hold the contest in suspense pending an investigation of the entry in behalf of the government. June 3, 1908, the order suspending proceedings was revoked, and the Crookston office directed to hear the contest. Due notice of hearing was given, but Norton did not appear and finally on February 4, 1909, his contest was dismissed for want of prosecution. April 29, 1909, the case was closed and the Extram entry again held intact. December 24, 1908, one Severtson filed a third application to contest the entry on the same charges. April 29, 1909, it was denied on the ground that it was not made within two years after the final certificate was issued to Extram. May 22, 1909, a special government agent reported to the general land office that he had investigated the matter and found that Extram did not make the entry for his own benefit alone, but partly for Wallin's benefit, and that before making final proof he had agreed to convey part of the land to Wallin. June 14, 1909, the commissioner directed the Crookston office to proceed against the Extram entry upon the charges in the special agent's report. June 17, 1909, such proceedings were begun and after a hearing and on June 16, 1910, cancelation of the entry was recommended. April 17, 1911, the commissioner affirmed the action of the Crookston office, the secretary of the interior sustained the action on an appeal to him, and on November 11, 1911, the Extram entry was finally canceled, no patent having ever been issued thereon. In making his ruling the secretary said:
Reference to the direction that the entry be investigated was then made and the secretary proceeded to say:
"The proceeding here is the result of that order, so that since March 29, 1907, within two years after the final certificate, the entry has been under investigation of the land department and this proceeding here is the result of that investigation instituted by order of the Department of March 29, 1907."
The proviso to section 7 referred to by the secretary reads:
"After the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the homestead * * * laws * * * and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him." Section 5113, Comp. St. 1918.
May 21, 1914, Wallin made application to enter the lands at the Crookston office and the entry was accepted and on January 5, 1916, a patent was issued to him and duly recorded. Then plaintiff brought this action, on the theory that by virtue of the proviso to section 7 she became entitled to the patent when the Norton and Severton contests were finally disposed of and Extram's entry declared to be intact. As we read his answer Wallin defended, on the ground that Extram had never complied with the homestead laws and was not entitled to the receiver's final receipt or to a patent based thereon; that his entry was being contested at all times after November 23, 1906, until it was finally canceled. There were allegations of fraud on the part of plaintiff's husband and agent in procuring the conveyance from Extram, which we do not regard as important. There was also an allegation of plaintiff's knowledge of the fraudulent character of Extram's entry.
The case was disposed of, on the theory that, after the three individual contests had been terminated and the entry held intact, there was no pending contest or protest until after the commencement of the formal...
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