Holt v. A. H. Classen, Samuel Murphy, J. H. Everest, J. H. Wheeler, Ewers White, C. W. Ransom, Ferdinand Batchelder, & the Classen Co.

• Decision Date: 04 September 1907
• Citation: 19 Okla. 131,1907 OK 81,91 P. 866
• Parties: AMELIA M. HOLT v. A. H. CLASSEN, SAMUEL MURPHY, J. H. EVEREST, J. H. WHEELER, EWERS WHITE, C. W. RANSOM, FERDINAND BATCHELDER, AND THE CLASSEN COMPANY, a Corporation.
• Court: Oklahoma Supreme Court

1907 OK 81

91 P. 866

19 Okla. 131

AMELIA M. HOLT v. A. H. CLASSEN, SAMUEL MURPHY, J. H. EVEREST, J. H. WHEELER,

EWERS WHITE, C. W. RANSOM, FERDINAND BATCHELDER,

AND THE CLASSEN COMPANY, a Corporation.

Supreme Court of Oklahoma

Decided: September 4, 1907

Syllabus

¶0 PUBLIC LANDS--Entries--Priorities--Premature Entry. A settlement or entry on public land already covered of record by another entry, valid upon its face, does not give a second entryman any rights in the land notwithstanding the fact that such entry may subsequently be relinquished or ascertained to be invalid by reason of facts dehors the record of such entry; and one first entering after the relinquishment or cancellation has priority over one attempting to enter prior to such relinquishment or cancellation. Following McMichael v. Murphy, 197 U.S. 304.

STATEMENT OF FACTS.

The amended petition upon which this action is predicated sets forth that the plaintiff is the sole surviving heir of Levi Holt, who on or about the 11th of March, 1890, filed his soldier's declaratory statement and application to make homestead entry on the southwest quarter of section 27, township 12, range 3 W. I. M., in the proper U. S. land office in accordance with the laws of the United States and established rules of the land department. It appears from the petition and exhibits that one Ewers White was at the time a homestead entryman of the tract involved, that his entry had been contested by one Blanchard, and White's homestead entry was held for cancellation by the commissioner of the general land office. Holt's declaratory statement and application to enter the land was made during the time, and while White had a right to appeal from the decision of the commissioner to the secretary of the interior, which appeal was in due time perfected and White's entry thereby preserved intact pending a determination by the secretary of the interior of the matters presented by such appeal. While the right of White to the land was pending before the secretary, White, on November 29, 1890, relinquished his homestead entry to the tract, and Murphy was allowed to make homestead entry thereon. The allowance of such entry at that time, and while Holt's application to file declaratory statement was pending and suspended, was held by the department of the interior to be erroneous; but, in view of the fact that Murphy's entry was of record, the department ruled that Murphy would be allowed thirty days from the date of notice to show cause why his entry should not be cancelled and Holt's application placed of record. This order brought on before the department a contest between Murphy and Holt which resulted ultimately in a determination by the secretary of the interior in favor of Holt's right to enter the land. Pending the contest between Holt and Murphy, Holt died, and his rights were revived in the name of Amelia M. Holt, plaintiff herein, as sole surviving heir, and she thereafter was represented before the department by the defendant, C. W. Ransom, who on June 14, 1897, and after the determination by the secretary of the interior of the right of the heirs of Levi Holt to enter the tract as a homestead, filed in the local office a waiver of the preference right of such heirs to make homestead entry of the tract in accordance with the decision of the secretary of the interior, and asked on behalf of such heirs to withdraw all claims in consideration (as recited in said waiver) of the receipt of $ 2,000 to them in hand paid by Samuel Murphy, which waiver was signed by C. W. Ransom and acknowledged before S. M. Dilley, register of the local land office, and the defendant Samuel Murphy was thereafter permitted to make homestead entry of the tract.

The petition of the plaintiff then alleges that the act of Ransom in waiving plaintiff's right was without her knowledge or consent; that no part of the consideration received by Ransom was ever paid to her; that she relied upon Ransom as her attorney to keep her informed as to her rights, but that he deceived her by concealing from her the fact that a preference right of entry had been awarded to the heirs of Levi Holt, and of the fact that he had entered a waiver of the right of said heirs to the tract as above stated; and that she did not discover the fraud until about the 8th day of September, 1901. The petition of plaintiff further recites that the defendants on the 14th day of June, 1897, conspired and confederated with the said Ransom to cheat and defraud plaintiff out of her right to said land, and acted together with said Ransom in executing and filing said waiver as above set forth, and charges that the defendant C W. Ransom, for a consideration paid by the other defendants, and by the assistance and counsel of the other defendants, except the Classen Company, filed a waiver of all of plaintiff's rights to said land, in the local land office, it is further charged that on the 19th of January, 1898, the defendant fraudulently procured a patent to the land to be issued by the government to the defendant Samuel Murphy, and that he thereafter fraudulently conveyed 120 acres of said land to the other defendants, retaining to himself 40 acres thereof. The petition then in detail charges specific acts of fraud on the part of each one of the defendants (except the Classen Company) participated in by all the defendants, each and all of which acts were entered into, done, and performed with the intent and purpose of each of said defendants, thereby to cheat and defraud the plaintiff out of her right to enter said premises awarded her by the said decision of the secretary of the interior. The acts of the several defendants by which the plaintiff claims to have been defrauded consisted in manipulating the title to said lands by deeds and mortgages in such way as to place the same beyond the reach of any action by the plaintiff to recover the same, and as well also to distribute the value of said premises ratably among the said de...