Headley v. Coffman
| Decision Date | 17 October 1893 |
| Docket Number | 5009 |
| Citation | 56 N.W. 701,38 Neb. 68 |
| Parties | HARVEY B. HEADLEY v. VICTOR H. COFFMAN |
| Court | Nebraska Supreme Court |
ERROR from the district court of Custer county. Tried below before GASLIN, J.
REVERSED AND REMANDED.
Harry E. O'Neill and Alpha Morgan, for plaintiff in error:
Until the patent is issued the fee of the land remains in the United States. After payment of the purchase money by the entryman, and the receipt of it by the officers of the United States, the government may still decline, on various grounds to perfect his title by the execution of a patent. Nothing but the patent passes the fee, and before its issue, the entryman has but a qualified and contingent estate in the lands. Ejectment cannot be maintained upon an equitable title.
Phelps & Sabin, contra:
A certificate of purchase issued in due form, in favor of a pre-emptor, for land subject to entry under the pre-emption law, cannot be canceled or set aside by the land department for alleged fraud in obtaining it; but in such case the government must seek redress in the courts, where the matter may be heard and determined according to the law applicable to the rights of individuals in like circumstances. A purchaser in good faith, and for a valuable consideration, from a pre-emptor of the land included in the latter's certificate of purchase takes the same purged of any fraud which might have been committed in obtaining said certificate.
The opinion contains a statement of the case.
We are met at the outset of this case by a question as to the jurisdiction of this court to review the judgment rendered in the district court. A transcript was filed as for an appeal more than six months after the rendition of judgment in the district court. There was a motion to dismiss the appeal which was overruled by this court, and the appellant given leave to file a petition in error. We are cited to the recent decision of Fitzgerald v. Brandt, 36 Neb. 683, 54 N.W. 992, as sustaining the position that the case is not now properly before this court for review. We regard the order of the court permitting the appellant to file a petition in error as the law of this case and sustaining the jurisdiction of the court to review the judgment as upon error. The action was one in ejectment instituted by Coffman against Headley to recover a quarter section of land in Custer county. It was submitted to the district court upon the pleadings and an agreed statement of facts, which has been incorporated into a bill of exceptions. On the 25th of August, 1884, William T. Hughes made proof of settlement and cultivation of the land in question, and made payment to the government of the purchase price under the pre-emption laws of the United States, and received the receiver's final receipt therefor. On September 2, 1884, Hughes conveyed by warranty deed to the Brighton Ranch Company, which on May 25, 1887, conveyed by quitclaim to one Hungate, who later conveyed to the plaintiff. On December 15, 1886, Headley filed in the United States land office at North Platte an affidavit of contest of the entry of Hughes upon the ground that at the time of making proof Hughes did not reside on the land as required by law; that he had not cultivated and improved it as required, and that his entry and proof were not made in good faith for his own use and benefit, but were made in fraud of the United States, and for the use and benefit of others. A hearing was ordered upon notice to Hughes, the result being that the general land office ordered Hughes' entry to be canceled, and permitted Headley to make a homestead entry under which Headley entered into possession of the land. No patent has been issued. Coffman claims under Hughes' entry, and the final receipt issued to him. Headley, to defeat the action, contends that under the circumstances ejectment will not lie and that the cancellation of Hughes' receipt divested him and his grantees of all interest in the land.
We have been cited to a vast volume of authorities bearing more or less upon the questions at issue. These authorities seem at first reading to be so divergent as to confuse, rather than to assist in forming a conclusion. Even the case in the supreme court of the United States seem at first to conflict with one another. A closer examination does not entirely reconcile all the cases, but where the conflict remains, it is due rather to general language in the opinions than to any conflict in the decisions themselves. General expressions have been made use of in the opinions, correct enough when applied to the case under discussion, but which, segregated from the facts of the case, have given rise to an unfortunate effort to apply them to other cases, and other facts. To attempt a review of the authorities sufficiently complete to be of value would prolong this opinion to a length not justified by the object sought. A number of the cases relate to the right of states to tax land which has been purchased from the government, and full payment made, before the issuance of the patent. The leading case upon this subject seems to be Carroll v. Safford, 44 U.S. 441, 3 HOW 441, 11 L.Ed. 671. This line of cases goes upon the ground that upon final payment the land becomes in equity the property of the purchaser. In no such case had the question of conflicting claims been determined. Other cases, such as that of the Colorado Coal & Iron Co. v. United States, 123 U.S. 307, 31 L.Ed. 182, 8 S.Ct. 131, have been direct proceedings in equity by the United States to cancel a patent already issued. Others again, like Stoddard v. Chambers, 43 U.S. 284, 2 HOW 284, 11 L.Ed. 269, have related to conflicting patents to the same lands. Others again, like Lindsey v. Hawes, 67 U.S. 554, 2 Black [U. S.], 554, 17 L.Ed. 265, have been suits in equity to compel a conveyance by the patentee to one having a prior right. These cases depend upon principles so different from those involved in the present case that general language used in the opinions must be considered with great caution.
Fenn v. Holme, 62 U.S. 481, 21 HOW 481, 16 L.Ed. 198, and Hooper v. Scheimer, 64 U.S. 235, 23 HOW 235, 16 L.Ed. 452, represent a class more nearly applicable. Those cases were in ejectment, no patent having yet been issued for the land. There the plaintiffs relied on the certificate re-enforced by state statutes something similar to section 411 of our Code, and it was held that the plaintiff could not recover, because, until patent issued, the title remained in the United States, and the state statutes referred to were not binding upon the federal courts. Bagnell v. Broderick, 13 Peters 436, differed from these cases in the fact that the certificate upon which one party relied was met by a patent to the adverse party. In that case the following forcible and significant language was used:
Wirth v. Branson, 98 U.S. 118, 25 L.Ed. 86, and other cases of the same class, establish the doctrine that after the right to a patent becomes complete, a...
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