Hemmer v. United States

Decision Date01 January 1912
Docket Number3,850.
PartiesHEMMER et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Eighth Circuit

Syllabus by the Court

In a suit in equity the claims of the United States appeal to the conscience of the chancellor with the same, but with no greater or less, force than those of a private individual under like circumstances, and they are determinable by the same rules and principles.

Privileges granted to a certain class by special legislation are not affected by an inconsistent general law unless a contrary intent of the legislative body is clearly expressed, or indubitably inferable from the acts; but the special act and the general law stand together, the one as the law of the specific class and the other as the general rule.

Neither the Land Department of the United States nor its officers has any jurisdiction by subsequent rulings and decisions to divest the equitable title to lands which becomes vested in pre-emptors, homesteaders, and other like claimants by their final proof and their payment therefor in accordance with the acts of Congress.

The construction of statutes intrusted to them to enforce by officers of the Land Department, or of any other executive department, is persuasive and should not be overruled without good reason, but their opinions are not conclusive upon the courts.

Act March 3, 1875, c. 131, Sec. 15, 18 Stat. 420 (U.S. Comp. St. 1901, p. 1419), granted to nontribal Indians the right to acquire homesteads with the restriction of 5 years on alienation by a compliance with the homestead laws. Act July 4, 1884, c. 180, 23 Stat. 96 (U.S. Comp. St. 1901, p. 1420) granted to Indians, whether tribal or nontribal, the right to acquire homesteads with the restriction of 25 years on alienation without paying the fees or commissions of the land officers, by a compliance with the other requirements of the homestead law.

Held the later act did not repeal, amend, or modify any of the provisions of the earlier act. It did not extend from 5 years to 25 years the restriction on alienation of the lands acquired by an Indian homesteader under the act of 1875.

George Rice and Frederick A. Warren, both of Flandreau, S.D. (Warren & Shoemaker and Rice & Benson, all of Flandreau, S.D., on the brief), for appellants.

Edward E. Wagner, of Sioux Falls, S.D., for the United States.

Before SANBORN, Circuit Judge, and WILLIAM H. MUNGER and TRIEBER District Judges.

SANBORN Circuit Judge.

The Act of Congress of March 3, 1875, 18 Stat. 402, 420, c. 131, Sec. 15 (U.S. Comp. St. 1901, p. 1419), provided that any Indian who was the head of a family, or who had arrived at the age of 21 years, and had abandoned, or should thereafter abandon, his tribal relations, should be entitled to the benefits of the homestead law (Revised Statutes, Secs. 2289, 2290, 2291 (U.S. Comp. St. 1901, pp. 1388-1390)), but that the title to the lands he should acquire should be inalienable for five years from the date of his patent therefor. Henry Taylor was such an Indian of the Sioux tribe. On October 7, 1878, he entered under this act the 160 acres of land in South Dakota, which is the subject of this suit, as his homestead. On June 10, 1879, he entered upon the actual occupation thereof and resided upon, occupied, and cultivated it with his family from that time until he sold it to J. E. Peart on August 8, 1908. The homestead law provided, section 2291, that any one who for five years after his entry resided on and cultivated his homestead and complied with the terms of the homestead law should be entitled to a patent therefor upon proof of compliance at any time within two years after the expiration of the five years. On June 10, 1884, Taylor had so complied with the terms of this law, and he was entitled to a patent to his land under the act of 1875 upon proof of his compliance made at any time before June 10, 1886. He made his final proof, paid for the land, and obtained his final receiver's receipt on December 11, 1884.

On July 4, 1884, after Taylor had completed his five years of residence and cultivation of his homestead and thus had completely earned it, Congress passed an act which provided that any Indians who then were or should thereafter be located on the public lands might avail themselves of the homestead laws, that $1,000 was appropriated to aid them in selecting and proving these homesteads, that no fees or commissions should be charged for their entries and proofs, and that their patents should declare that the United States would hold their lands for 25 years in trust for them and at the end of that time would convey the title thereof to them respectively. On June 6, 1890, the United States issued to Taylor a patent to his homestead which, by mistake, declared that his land was inalienable for 20 years as provided by an act of Congress approved January 18, 1891, relating to the Winnebago Indians, which had no relevancy to his case or his title. On June 10, 1909, the government issued another patent to Taylor for this land which declared that it was issued in lieu of the previous patent which had been canceled, that in accordance with the provisions of the act of July 4, 1884, the government would hold his land in trust for him for 25 years and would convey it to him at the end of that time. On August 8, 1908, Taylor sold this land and delivered the possession of it, and that possession and whatever title Taylor could convey have passed by sufficient deeds to the defendant below Louis Hemmer. On July 28, 1909, the United States brought this suit in equity against the immediate and remote grantees of Taylor for the purpose of setting aside all the conveyances under which they held, against the treasurer and auditor of Moody county, wherein the land was situated, against a claimant under a tax sale, and against a judgment creditor of Taylor, for the purpose of avoiding their liens upon the land, upon the ground that this homestead was inalienable, exempt from taxation and from judgment liens for 25 years after the date of the patent issued under the act of 1884. The court below rendered a decree to that effect, which is challenged by this appeal.

If when the conveyances here in question were made and the liens were placed Taylor's homestead was subject to the restrictions upon alienation and taxation prescribed by the act of July 4, 1884, the decree below was right (Heckman v. United States, 224 U.S. 413, 32 Sup.Ct. 424, 56 L.Ed. 820), and the question whether or not it was so subject must be determined by the acts of Congress and not by the terms of the patents issued to Taylor (United States v. Saunders (C.C.) 96 F. 268; Frazee v. Spokane County, 29 Wash. 278, 69 P. 779). The patents and their terms are therefore here dismissed, and we turn to the sole question in the case: Did the act of July 4, 1884, which was not passed until after Taylor had completely earned the title to his homestead subject to the restriction of only 5 years upon its alienation imposed by the act of 1875, so amend that act as to extend that restriction to 25 years?

The United States offered this land to Taylor by the act of 1875, free from all restrictions upon alienation after five years from the date of his patent, on the sole condition that he would reside upon and cultivate it and endure the toils and privations of frontier life for five years. That offer he accepted in the only way in which it could be accepted, by five years of actual residence, occupation, and cultivation of the land. He proved his compliance with the offer to the satisfaction of the government, paid the prescribed fees for his final entry, and obtained his final receipt therefor under the act of 1875, and the purchasers from him have bought his land and paid for it in reliance upon this act of Congress and these facts. These purchasers, the grantees under Taylor, stand in his shoes. They have every legal right and every equitable right and title which he held.

This is a suit in equity. In such a suit the claims of the government appeal to the conscience of the chancellor with no greater or less force than those of a private individual under similar circumstances. United States v. Stinson, 197 U.S. 200, 201, 202, 205, 25 Sup.Ct. 426, 49 L.Ed. 724; United States v. Detroit Timber & Lumber Co., 131 F. 668, 677, 67 C.C.A. 1, 10; State of Iowa v. Carr, 191 F. 257, 267, 112 C.C.A. 477, 487.

In equity no one may successfully deny to the damage of another the truth of statements and representations by which he has purposely or carelessly induced that other to change his situation. By its offer by the act of 1875 of the title to and the full power of disposition of this land at the end of ten years in consideration of its occupation and cultivation for five years, the United States induced Taylor to earn it and the grantees under him to buy and pay for it, and it ought to be estopped now from repudiating or modifying its offer and representations to their injury. Illinois Trust & Savings Bank v. City of Arkansas City, 76 F. 271, 293, 22 C.C.A. 171, 193, 34 L.R.A. 518; Paxson v. Brown, 61 F. 874, 881, 10 C.C.A. 135, 142; Union Pacific Railway Co. v. Chicago, R.I. & Pac. Ry. Co., 51 F. 309, 326, 327, 2 C.C.A. 174, 191, 192.

'A court of equity can act only on the conscience of a party. If he has done nothing that taints it, no demand can attach upon it so as to give any jurisdiction. ' Boone v. Chiles, 10 Pet. 177, 209 (9 L.Ed. 388); United States v. Detroit Timber & Lumber Co., 131 F. 668, 677, 678, 67 C.C.A. 1, 10, 11; United States v. Winona & St. Peter R.R. Co., 67 F. 948, 961, 968, 15 C.C.A. 96, 109, 116.

It is difficult to find anything that the defendants have done in this case to taint their consciences. If A. had offered to convey to...

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