Jones v. Fearnow
| Citation | 53 Okla. 822,156 P. 309,1916 OK 182 |
| Parties | * JONES et al. v. FEARNOW et al. |
| Decision Date | 08 February 1916 |
| Court | Oklahoma Supreme Court |
¶0 1. PUBLIC LANDS-lands of United States--Decisions of Land Department-Review by Courts. The United States Land Department primarily is intrusted with the disposal of the public domain, and the action of its officers will not be inquired into in the courts, unless it clearly appears that they have committed some material error of law, or that misrepresentation and fraud were practices, and that as a result thereof the patent was issued to the wrong party.
2. SAME--Suit in Equity. F. filed a homestead entry upon a tract of unoccupied public land and died before making his final proof. Thereafter J., a qualified homestead entryman, in her own right, presented to the proper officers of the land department a relinquishment of said entry and an application to enter said land, which were accepted, and her homestead entry placed of record. Thereafter the heirs of F. filed a contest against the homestead entry of J., wherein they alleged false statements of said entryman, which contest was rejected, the officers of the local land office and the Commissioner of the General land Office holding that, no adjudication of the nullity of the marriage having been made by any court of competent jurisdiction, the department could not question the validity of the marriage; the secretary of the Interior further holding: (1) That this is a question the department cannot decide from the record before it; (2) that, independent of this, the contestants presented no ground upon which their contest can be sustained; and (3) that their delay in proceeding to contest, pursuant to section 2291, Rev. Stat. U.S. (Comp. Stat. 1901, p. 13900, is a sufficient reason for rejecting their contest. Thereafter J. submitted her final proof before the land department, whereupon a patent to said land in due form was issued to her by the United States. Thereafter in a suit in equity commenced by the heirs of F. against J. for the purpose of declaring a resulting trust upon the ground "that the Department of the refusing to permit these plaintiffs ( the heirs of F.) to show that said Luttie B. Jones, then Fearnow (J.), the defendant herein, was not the wife of the said Hollen H. Fearnow (F.) deceased." the foregoing facts were agreed upon by the parties. Held: (1) That, inasmuch as J. did not assert any right to the land as the widow of F., or procure the Issuance of the patent pursuant to section 2291, Rev. Stat. U. S., the decisions of the officers of the land department in declining to pass upon the validity of the marriage of F. and J. were not erroneous; (2) that, the claim of the heirs resting upon their relationship with F., they are not entitled to the relief prayed for, because they did not pursue their remedy before the land department, pursuant to section 2291, Rev. Stat. U. S.; (3) that, granting the heirs can make their final proof the court, and present the affidavits, etc., required by section 2291 before the court, then the agreement of the parties as to the speculative nature of the homestead entry of F. should also be considered, and in that event, they would be no better off; (4) that the heirs of F. are not entitled to the relief prayed for upon any theory which may be properly predicated upon the record and agreed statement of facts before us.
J. F. King, for plaintiffs in error.
J. F. King (W. P. Hackney and J. T. Lafferty, of counsel), for defendant in error Phoenix Mut. Life Ins. Co. L. A. Maris (William H. England, of counsel), for other defendants in error.
¶1 This was a suit in equity, commenced by all of the defendants in error, plaintiffs below, except the Phoenix Mutual Life Insurance Company, a corporation, against the plaintiffs in error, defendants below, for the purpose of declaring a resulting trust. The defendant in error the Phoenix Mutual Life Insurance Company was the holder of a mortgage on the land involved, executed by the plaintiff in error Luttie B. Jones, and was joined with her as a party defendant in the trial court. This is the third time the cause has been before this court, one phase of it having been considered in Fearnow v. Jones, 34 Okla. 694, 126 P. 1015, upon a former appeal, and another, upon a motion to dismiss the present proceeding in error. Luttie B. Jones et al. v. Emily Fearnow et al., 47 Okla. 586, 149 P. 1138. After the cause was remanded to the trial court upon the former appeal, it was tried upon certain documentary evidence and an agreed statement of facts, after the consideration of which the trial court entered a decree in favor of the plaintiffs as prayed for, and further held that the mortgage held by the Phoenix Mutual Life Insurance Company "does not constitute any lien or incumbrance upon said premises, and that said mortgage be canceled, set aside, and held for naught." For the purpose of reviewing this latter decree of the trial court the plaintiffs in error Luttie B. Jones and Elmer Jones commenced this proceeding in error, joining therein as defendants in error the Phoenix Mutual Life Insurance Company, which filed a cross-petition in error for the purpose of reviewing the part of the decree which affects its interests. In our opinion, the decree rendered by the trial court is erroneous in its entirety. The tract of land involved was originally entered on the 29th day of March, 1899, under the homestead laws of the United States by Hollen H. Fearnow, who immediately upon the filing of said entry went into possession thereof and cultivated and improved the same as his homestead until the date of his death, which occurred on the 6th day of October, 1905. For a considerable portion of the time he thus resided upon the land he and the defendant Luttie B. Jones lived together as husband and wife. From an examination of the opinion formerly handed down it will appear that the decision of the court turned on the question whether the land department erred in declining to inquire into the validity of the marriage of the entryman Fearnow and the defendant Luttie B. Jones in a certain contest proceeding instituted against her by his heirs. The question arose upon a demurrer to the petition, which was sustained by the trial court, and overruled on appeal. As we view the case as it is now more fully presented upon the record and agreed statement of facts, the question of whether the original entryman and the defendant Luttie B. Jones, nee Fearnow, were legally married is in no manner material to a determination of this case. The agreed statement of facts, in so far as it is necessary to advert to it, shows that after the death of the entryman, Hollen H. Fearnow, the defendant continued to reside and make her home upon the land as she had formerly done; that on the 28th day of November, 1906, she presented to the proper officers of the land office at Guthrie, Okla., a relinquishment of the land and an application to enter the same as a homestead in her own name, which relinquishment and application were accepted and her homestead entry No. 14423 entered of record; that at said time she was an unmarried female over the age of 21 years, a native-born citizen of the United States, and in every respect entitled to make a homestead entry upon public lands under the homestead laws of the United States; that, after making said homestead entry she continued to reside upon and cultivate and improve said land, and in due time paid the purchase price and finally "proved up" the same under the homestead laws of the United States, whereupon a patent was issued to her, wherein the foregoing facts and her compliance with the homestead laws are fully recited; that on the 12th day of December, 1906, prior to the issuance of the patent, the plaintiffs herein filed their contest affidavit against said entry of said Luttie B. Jones, then Luttie B. Fearnow; that on the 5th day of January, 1907, the United States land office at Guthrie rejected said contest affidavit as insufficient and rendered a decision in favor of the contestee; that said contestants appealed from said decision to the Commissioner of the General Land Office, and the said commissioner, on May 13, 1907, affirmed the said decision of the land office; that thereafter the said contestants appealed from the decision of the land office to the Secretary of the Interior, and on the 1st day of September, 1907, the Secretary of the Interior affirmed the decision of the land office. Thus matters rested until patent was issued to the defendant Luttie B. Jones, when, some considerable time after the issuance of patent, this suit was commenced to declare a resulting trust. In view of the conclusion we have reached, it will not be necessary to state in detail the facts in connection with the mortgage held by the defendant the Phoenix Mutual Life Insurance Company, or notice its contentions in relation thereto, as there appears to be no controversy between it and the defendant Luttie B. Jones. If, in the consideration of the case before us, we start with a correct premise, we think there will be no difficulty in demonstrating the correctness of the conclusion hereinbefore indicated. It is well settled that the United States Land Department primarily is intrusted with the disposal of the public domain, and that the action of its officers will not be inquired into in the courts, unless it clearly appears that they have committed some material error of law, or that misrepresentation and fraud were practiced upon them, or that they, themselves, were chargeable with fraudulent practices, and that as a result thereof the patent was issued to the wrong party. Ross v. Stewart, 25 Okla. 611, 106 P. 870; Fast v. Walcott, 38 Okla. 715, 134 P. 848. This principle is recognized as correct by all the parties to this controversy, the plaintiffs contending that they are entitled to relief on account of material errors of law...
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