Gourley v. Countryman

• Decision Date: 13 February 1907
• Citation: 90 P. 427,1907 OK 15,18 Okla. 220
• Parties: WILLIAM GOURLEY v. GEORGE W. COUNTRYMAN.
• Court: Oklahoma Supreme Court

1907 OK 15

90 P. 427

18 Okla. 220

WILLIAM GOURLEY v. GEORGE W. COUNTRYMAN.

Supreme Court of Oklahoma

Decided: February 13, 1907

Syllabus

¶0 1. PUBLIC LANDS--Patent--Trust Declared, When. Where the land department has, by reason of error of law, issued a patent for public land to one person when, if the law had been correctly stated and applied, such land would have been awarded to another person, a court of equity w on proper application and showing declare the patentee a trustee of said land for the benefit of the person lawfully entitled to the title, and will decree a conveyance.

2. SAME--Finding of Land Department. Where a person purchases and obtains the relinquishment of a homestead entryman and while in possession of and controlling such relinquishment files a contest against the entryman, alleging that the entryman has relinquished and abandoned the land, and before the filing of such relinquishment a third person and junior contestant files a contest against the entryman and senior contestant alleging fraud and speculation, a court of equity will not disturb a finding of the land department that the senior contestant is not acting in good faith and is not entitled to a preference right in the cancellation of the first entry.

3. SAME--Trespassers. One who settles upon public land covered by a valid homestead entry is a mere trespasser and acquires no rights as a settler against a contestant who secures the cancellation of the first entry and is awarded the preference right to enter the land.

4. SAME--Same--Homestead Entry. While one who settles upon segregated land embraced in a homestead entry, cannot acquire any rights as a settler thereby, yet upon the relinquishment of the entryman, there being no intervening superior rights attached, the rights of the settler attached eo instanti, and if qualified, he is entitled to the homestead entry if he applies within ninety days from the time his rights attach.

5. SAME--Patent--Title to land. A receiver's final certificate issued under the homestead law conveys the equitable title to the person named in the certificate, subject to be defeated by cancellation for fraud in procuring same. The legal title remains in the United States until patent issues and is conveyed by the patent to the patentee, and relates back to the inception of the rights of the patentee. Such certificate does not convey a fee simple title.

6. SAME--Same. One holding land by virtue of a receiver's final certificate prior to issue of patent is not seized in fee simple of the land described in such certificate and is not, on account thereof, prohibited from entering public lands in Oklahoma under sec. 20 of the act of May 2, 1890, 26 Stat. 81.

Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge.

J. H. Everest, for plaintiff in error.

J. L. Brown and Selwyn Douglas, for defendant in error.

BURFORD, C. J.:

¶1 This is a suit in equity to have a resulting trust declared. The defendant in error, Countryman, holds the patent from the United States to eighty acres of land located in Oklahoma county, Oklahoma, more particularly described as the north 1-2 of the northeast 1-4 of section 28, township 11 north, range 3 W. I. M., and the plaintiff claims that in the determination of the several claims to said land before the land department of the United States, prior to issue of patent, the law was improperly decided against him and in favor of Countryman, whereby the land was improperly awarded and patented to Countryman when it should have been, upon the law and facts, awarded and patented to him. The petition contains two causes of action. A demurrer was sustained to each cause of action upon the ground that neither of them alleged facts sufficient to constitute a cause of action. Judgment was rendered for the defendant upon the demurrer, and the plaintiff appealed.

¶2 That a court of equity will declare the holder of the legal title of real estate derived directly from the United States to be a trustee for the person entitled under the law to have the same, and compel a conveyance from the trustee to the cestui que trust, upon proper application and showing, is no longer open to controversy. The record discloses that on May 11, 1889, A. G. Blaurelt made homestead entry for the tract of land here involved. October 17, 1889, Gourley filed contest against Blaurelt's entry, charging that he had relinquished his entry and abandoned the land. September 30, 1890, Thomas W. Pence filed a contest against Blaurelt's entry and made Gourley a party to the contest, in which he alleged that Blaurelt had relinquished the land to Gourley prior to the filing of Gourley's contest, and that Gourley was holding the relinquishment to suit his convenience for speculative and fraudulent purposes. On December 1, 1891, Gourley filed Blaurelt's relinquishment and made entry of the whole quarter section of which this tract formed a part. Upon the trial of the contest of Pence his contest was sustained, the entry of Gourley canceled to the tract in controversy, and Pence made homestead entry on February 14, 1895. On July 26, 1895, Pence relinquished and George W. Countryman made homestead entry. Gourley went into possession of the land immediately after he purchased Blaurelt's relinquishment and remained in possession until after these proceedings were all disposed of and the land patented to Countryman. On October 15, 1895, Gourley filed a contest against the entry of Countryman alleging settlement at the date of Coutryman's entry, and that Pence and Countryman were in collusion for the purpose of acquiring his improvements.

¶3 The first cause of action set forth in the petition is based upon the contention that Gourley being the senior contestant against Blaurelt and also a settler upon the land at the time Pence was allowed to make homestead entry, that the department erred in holding that he was not entitled to the entry at that time, and contends that he should have been entitled to file upon the land either as the successful contestant or as the prior settler.

¶4 By the final decision of the land department it was held that:

"A contestant who holds a relinquishment and brings a contest against the entry covered thereby, charging the fact of relinquishment, acquires no preferred right if he subsequently files said relinquishment and the entry is canceled; nor can he secure such right by settlement on the land prior to the cancellation of said entry."

¶5 The land department found from the evidence in the contest case of Pence against Blaurelt and Gourley that Gourley became the owner of Blaurelt's relinquishment about the middle of October, 1889, and kept the same in his possession until December 21, 1891, when he filed the same and made homestead entry of the land. That he filed a contest on October 17, 1889, while he had the relinquishment in his possession, in which he charged Blaurelt with having relinquished and abandoned the land. Upon the facts found, the secretary of the interior, Mr. Francis, in his final decision, held:

"The questions now at issue, are: First, whether the contest of Gourley gave him any rights to the land, and, secondly, did his settlement inure to any legal advantage to him. Upon the first question in the case of Butman v. Bornster, (13 L.D. 493), Assistant Secretary Chandler held, 'That a contestant who is in possession of a relinquishment, but for purposes of delay and speculation brings a contest against the relinquished entry on the ground of relinquishment and abandonment and subsequently files said relinquishment, acquires no preference right on the cancellation of the entry. In the ex parte case of Eva Brown, (3 L.D. 150) it was held that: 'Where one purchases of a timber culture entryman his relinquishment, it may be made the basis of an entry by filing it with an application for the land, but it may not, by retaining it, become the basis of a contest by the purchaser.' The reason of this is apparent, inasmuch as the filing of a contest, where one holds in one's hands that which makes the contest unnecessary, is a nullity and ought not and does not confer any rights upon the contestant, for the reason that the contest is not made in good faith and is not for the purpose of securing the cancellation of the entry, as the relinquishment in his possession would, in itself if filed, secure that result."

¶6 It was further held that his settlement on the land was not in good faith, having been made while there was an entry of another upon the land; that he acquired no rights thereby, and that the preference right of Pence under the contest was superior to the settlement of Gourley made as a trespasser.

¶7 We think the conclusions reached by the secretary are sound, and the law as stated by him and applied to the case is not subject to serious criticism. Having found that the contest filed by Gourley against Blaurelt was not in good faith, that it was useless and abortive and not filed for the purpose of procuring a cancellation of the entry but for delay and speculation (and in the absence of the evidence we must assume that these conclusions are supported by the evidence,) it would have been trifling with justice and making the courts a mere object of convenience to serve one's personal or private interests, to have permitted him to have obtained any superior rights by virtue of such a contest.

¶8 On the second question this court, in Hodges v. Colcord, 12 Okla. 313, 70 P. 383; held that where one made settlement upon a tract of land covered by a homestead entry, and subsequently a contest was filed by a third party and the entry canceled as a result of the contest, the preference right of the contestant was superior to the right of the settler. To the same effect is McMichaels v. Murphy, 12 Okla. 155, 70 P. 193. The settlement of Gourley upon the land while the entry of Blaurelt was intact gave him no rights as a settler and no rights as such could...