Fernald v. Winch

• Decision Date: 10 December 1892
• Citation: 50 Kan. 79,31 P. 665
• Parties: M. C. FERNALD v. WILLIAM C. WINCH et al
• Court: Kansas Supreme Court

31 P. 665

50 Kan. 79

M. C. FERNALD v. WILLIAM C. WINCH et al

Supreme Court of Kansas

December 10, 1892

Decided July, 1892.

Error from Kingman District Court.

ACTION to foreclose a mortgage. The facts are fully stated in the opinion, filed December 10, 1892.

Judgment affirmed.

W. J Patterson, and Stanley & Hume, for plaintiff in error:

We claim that the action of the commissioner of the land office and that of the register and receiver, was absolutely void and their findings that Winch and Husey did not establish residence and settlement upon the land were nullities, and the orders of the commissioner of the land office, made in February, 1887, canceling the entries of Winch and Husey, and afterwards opening the land up for settlement, were also nullities. The leading case is Smith v. Ewing, 23 F. 741, and it disposes of the case in favor of the plaintiff in error. The same doctrine was afterward established in Wilson v Fine, 40 id. 52. Darcy v. McCarthy, 35 Kan. 722, where the question of conflicting preemption rights was decided, is a case distinguishable from the case at bar.

That a mortgage is an assignment or conveyance, is held in Brewster v. Madden, 16 Kan. 249. Again, after the entry of Husey of one-half of the land described in the petition, Husey conveyed to Winch, and this was done fully three years before any proceedings were instituted by the government to cancel the entry of Husey, and as it is held in Myers v. Croft, 13 Wall. 291, Husey became the owner of the property after the entry. See Moore v. Robbins, 96 U.S. 538; Carroll v. Safford, 3 HOW 460.

See, also, the following cases: Brill v. Stiles, 35 Ill. 305; Perry v. O'Hanalan, 11 Mo. 594; Cornelius v. Kessel, 58 Wis. 237; Wilcox v. Jackson, 13 Pet. 493; Bennett v. Farrar, 2 Gilm. (2 Ill.) 589; Camp v. Smith, 2 Minn. 155; Rogers v. Brent, 5 Gilm. 473, 580; Mining & Milling Co. v. Spargo, 16 F. 348; People v. Shearer, 30 Cal. 645, 648, 649; Gwin v. Niswanger, 15 Ohio 370, 376; Witherspoon v. Dunan, 4 Wall. 210, 218; Hughes v. United States, 4 id. 232, 235; Astrom v. Hammond, 3 McLean, 109; 45 F. 760; 11 S.Ct. 57; 48 F. 47; 47 id. 47.

Gillett Bros. & Co., for defendants in error Henry Fieser and wife:

It is settled by the decisions of the federal supreme court, that, after patent has issued to the entry man, the land department is divested of all power in relation to the land; its functions have wholly ceased, as to that land; and, whether fraud has been committed by the entry man or not, so long as the United States is satisfied, a third party cannot be heard to complain, even in the courts, upon that ground, and only upon a prior equity; and this same doctrine is applied as between the entry man and a third party, where such third party, without prior equity, seeks in the courts to have the entry man's rights declared inferior to that of the trespasser; so long as the government does not complain of the fraud perpetrated on it, a stranger cannot be heard to complain. 21 Myer's Fed. Dec., § 1332. And it has been settled by the same court that the officers of the land department cannot be restrained or compelled by the courts in any matter relating to lands while the title thereto is still in the United States.

The case of Moore v. Robbins, 96 U.S. 530, is against plaintiff in error. It holds that the functions of the land department cease when the title has passed, by patent, from the government, after which the secretary cannot entertain an appeal, being absolutely without authority. The cases of Bennett v. Farrar, 2 Gilm. (Ill.) 589; Rogers v. Brent, 5 id. 473, 580; Brill v. Stiles, 35 Ill. 305, have been qualified or overruled or reconciled by the later decisions of that court. See Robbins v. Bunn, 54 Ill. 48; Moore v. Robbins, 6 Otto, 530-539.

Smith v. Ewing, 23 F. 741, is a case in point for plaintiff in error; and it stands alone, we believe, on the proposition in support of which it is cited. True, Judge Deady, of the circuit court of Oregon, who wrote that opinion, has since affirmed it in Wilson v. Fine, 40 F. 52, and reaffirmed it in Mortgage Co. v. Hopper, 48 F. 47, which cases are cited by plaintiff in error; but we know of no other federal judge who has followed that decision or taken that ground on such proposition. At the time Smith v. Ewing was decided, it was directly contrary to and amounted to an overruling of the federal supreme court decisions. Harkness v. Underhill, 1 Black, 316.

SIMPSON, C. All the Justices concurring.

OPINION

SIMPSON, C.:

M. C. Fernald, the plaintiff in error, commenced this action in the district court of Kingman county, on the 16th day of August, 1888, against William C. Winch and Lydia Winch, to foreclose a mortgage executed by them on certain lands in Kingman county. To this action Henry Fieser and Amelia Fieser were made parties, and it was alleged in the petition that they had, or claimed to have, the title to, or some interest in, or lien upon said land, or a part thereof, which they acquired subsequent to the lien of the mortgagee. Winch and wife made default, but Fieser and wife filed an answer, in which it was alleged that their title to the land covered by the mortgage executed by Winch and wife was derived directly from the United States under the preemption laws. They denied having executed any mortgage upon said land, and allege that the mortgage executed by Winch and wife is a cloud upon their title, and pray that it be declared null and void as against them. To this answer the plaintiff in error replied that Winch procured title to said land by preemption from the government, by a full compliance with all the requirements of the land laws, and that Winch and wife executed the notes and mortgage sued upon; and that subsequent to the execution of the mortgage, and without the knowledge of Winch, and without notice to him, some officers connected with the land department of the government pretended to cancel the entry of Winch and set aside his final receipt, and that said acts of said officers were and are null and void, being without authority.

At the trial, it was stipulated by the parties that the following may be introduced and considered as the facts in the case That under the date of August 15, 1883, Adolph C. Husey made cash entry of the south half of the southeast quarter and the south half of the southwest quarter of section 13, township 30 south, of range 6 west of the sixth principal meridian, in Kingman county, Kansas, in the United States land office at Wichita, Kan., and made full payment for said lands and took the receiver's final receipt therefor; that under date of September 12, 1883, the defendant, William C. Winch, made cash entry of the north half of the southeast quarter and the north half of the southwest quarter of section 13, township 30 south, of range 6 west of the sixth principal meridian, in Kingman county, Kansas, in the United States land office at Wichita, Kan., and made full payment for said lands and took the receiver's final receipt therefor; that subsequent to the time of said original entries by Adolph C. Husey and William C. Winch, respectively, and prior to the cancellation of said entries and the order opening up said lands for settlement, the said J. B. Watkins and M. C. Fernald, plaintiffs herein, for full consideration, accepted conveyances of the southwest quarter of said section 13, township 30, range 6, by the...