Hartman v. Warren

• Decision Date: 14 September 1896
• Docket Number: 767.
• Citation: 76 F. 157
• Parties: HARTMAN v. WARREN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

76 F. 157

HARTMAN v. WARREN et al.

No. 767.

United States Court of Appeals, Eighth Circuit.

September 14, 1896

(Syllabus by the Court.)

The location of a tract of public land by an alleged beneficiary under the seventh clause of the second article of the treaty of September 30, 1854 (10 Stat. 1109), between the United States and the Chippewa Indians of Lake Superior, segregates the tract from public domain and appropriates it to private use.

While such a location remains in force, Porterfield warrants issued under the act of April 11, 1860 (12 Stat. 836) cannot be lawfully located on the same land, because that land has been otherwise appropriated by the prior location whether right or wrong.

The adjudications of the land department upon questions within its jurisdiction, if erroneous, are not void, but are valid until reversed on appeal or set aside by proper direct proceedings for that purpose.

An entry of land under the seventh clause of the second article of the treaty of September 30, 1854, supra, is not a pre-emption entry, and one who contests it acquires thereby no right to be preferred in the purchase or acquisition of the land under section 2 of the act of May 14, 1880 (21 Stat 140, 141, c. 89, 2).

One who is not in privity with the United States, and who did not acquire any right to be preferred in the acquisition of a tract of land, before the claim to it upon which it was patented was initiated, may not maintain a bill in equity to subject the holder of the legal title to a trust in his favor on the ground that the patent was issued through errors in law.

This is an appeal from a decree which sustained a demurrer to a bill in equity and dismissed the bill. Emil Hartman, the appellant, brought this bill in the court below against James H. Warren and his immediate and remote grantees, the appellees, to obtain a decree of that court that those of the appellees who then held the title to lot 7 and the N.E. 1/4 of the S.W. 1/4 of section 30, township 63 N., of range 11 W., in the county of St. Louis, in the state of Minnesota held it in trust for his benefit. The United States issued their patent for this land to the appellee Warren on December 11, 1894, and the title held by the appellees rests upon this patent. The theory of the bill is that the land was patented to Warren through errors of law made by the officers of the land department, when it would have been patented to the appellant if these officers had rightly decided the legal questions presented to them in the case. The allegations of the bill, so far as they are material to the determination of the decisive questions upon this appeal, disclose this state of facts: By the seventh clause of the second article of the treaty concluded between the United States and the Chippewa Indians of Lake Superior and the Mississippi, on September 30, 1854, it was agreed that 'each head of a family or single person of age at the present time, of the mixed bloods belonging to the Chippewas of Lake Superior, shall be entitled to eighty acres of land to be selected by them under the direction of the president, and which shall be secured to them by patent in the usual form.' 10 Stat. 1109. Warren is and always has been a citizen of the United States. He was the son of a father who was a native-born citizen of the United States, and of a mother who was a mixed blood, half French and half Chippewa Indian of Lake Superior. He was a married man, and a resident and citizen of the state of California when the treaty was made, and never lived with or in the vicinity of any band of Chippewa Indians. He nevertheless claimed that he was a mixed blood belonging to the Chippewas of Lake Superior, and on January 22, 1875, the commissioner of Indian affairs, by direction of the secretary of the interior, so found, and issued to him a certificate of identity, to the effect that he was one of the persons referred to in the clause of the treaty quoted, and that he was entitled to locate 80 acres of land under the provisions of that treaty. On January 20, 1885, Warren sold this certificate of identity to one Joseph H. Sharp, and executed two powers of attorney to him, one to empower him to locate in Warren's name the 80 acres to which he claimed to be entitled under the treaty, and the other to empower him to sell and convey this land. On October 15, 1885, Sharp located the land in dispute in this case in the name of Warren, under his power of attorney for that purpose. On the same day, he sold and conveyed it in the name of Warren to the appellee, Christian Kortgaard, under his power of sale. On December 22, 1894, the government patented the land to Warren upon this location. Meanwhile, on March 11, 1889, the appellant, Hartman, applied to the register and receiver of the proper local land office to locate and enter this land with Porterfield warrants issued under the act of congress, approved April 11, 1860, which provided that the secretary of the interior should issue these warrants to the executors of the last will and testament of Robert Porterfield, 'to be by them located on any of the public lands which have been or may be surveyed and which have not been otherwise appropriated at the time of such location.' 12 Stat. 836. The register and receiver rejected this application, on the ground that the land was embraced in the entry of Warren. On March 19, 1889, Hartman appealed from this decision to the commissioner of the general land office, and filed with the officers of the local office an application to contest the entry of Warren, on the grounds that the location of October 15, 1885, was not made by or for him, that he was not entitled to locate the land, and that he had unlawfully parted with his certificate of identity before the entry was made. The commissioner affirmed the decision of the register and receiver and dismissed Hartman's application to contest. Hartman appealed to the secretary of the interior. The secretary reversed the decisions of the officers below, and directed the register and receiver to hear the contest. They heard it in January, 1893. Counsel for Hartman claim that the allegations of his bill show that on the hearing of this contest Hartman proved by uncontradicted testimony the facts which we have recited, as to the citizenship and residence of Warren, as to his mixed blood, as to his relation (or, rather, want of relation) to the Chippewa Indians of Lake Superior and the Mississippi, and as to his sale of his certificate of identity, before his location was made. For the purposes of this decision we shall concede this to be the legal effect of the averments of this bill, although it may be that we should be forced to the conclusion that the bill discloses that there was contradictory evidence before the officers of the land department at the hearing upon the contest sufficient to warrant their findings, as matter of fact, if that question were material in our view of this case. The officers of the local land office held that Warren was a beneficiary under the treaty, that he had the power to sell his right to locate the land, and had the right to make the two powers of attorney before he made his location, that his entry and location of the land in dispute were valid, and that Hartman's contest should be dismissed. After a hearing upon an appeal from this decision, the commissioner of the general land office affirmed it. On an appeal from this decision of the commissioner, the secretary of the interior affirmed it, and the land was patented to Warren. The appellant alleged that these decisions upon the hearings upon his contest were erroneous in law, and that he is, consequently, entitled to the relief sought by his bill.

James O. Broadhead, D. P. Dyer, and William W. Billson (P. H. Seymour, Chester A. Congdon, and Daniel A. Dickinson, with them on the brief), for appellant.

James K. Redington (J. M. Wilson, S. F. White, T. J. McKeon, George P. Wilson, and John R. Van Derlip, with him on the brief), for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the facts above, .

The appellant attacks the patent of the United States, under which the appellees hold this land, on the ground that the patentee was not legally entitled to receive it. Two preliminary questions are forced upon our consideration, and demand determination before we can reach the investigation of the title of the appellees. They are: Did the appellant, Hartman, ever acquire any right to or equitable interest in the land which was injuriously affected by the issue of the patent to Warren? If not, can he maintain a suit in equity to charge the holders of the legal title under this patent with a trust for his benefit?

The act of April 11, 1860 (12 Stat. 836), gave the appellant the right to locate his Porterfield warrants upon any of the public lands not 'otherwise appropriated at the time of such location. ' He first applied to locate them on this land on March 11, 1889. The land had then been selected located, entered, and paid for by Warren by the surrender of his certificate of identity for more than three years. How could the appellant have any right to locate his warrants on this land, while the location of Warren stood uncanceled? Why were not these lands 'otherwise appropriated' by the location of Warren, when Hartman made his application? It is contended that Warren's location was void because he was not a person entitled to the benefits of the treaty of September 30, 1854 (10 Stat. 1109), under which he made it, and because he unlawfully sold his certificate of identity before he made his entry. But this position is untenable. The land department of the United States is a special tribunal vested with judicial...