Jones v. Meyers

• Decision Date: 18 March 1891
• Citation: 26 P. 215,3 Idaho 51
• Parties: JONES v. MEYERS
• Court: Idaho Supreme Court

26 P. 215

3 Idaho 51

JONES v. MEYERS

Supreme Court of Idaho

March 18, 1891

POWERS OF COMMISSIONER OF GENERAL LAND OFFICE-CAN CANCEL RECEIPT OF PRE-EMPTION OBTAINED ILLEGALLY OR FRAUDULENTLY. The commissioner of the general land office of the United States has the authority to cancel the final receipt or certificate issued to a pre-emption entryman, at any time before patent issues to such entryman, upon a proper showing, made in accordance with the rules and regulations of the land department, that said entryman obtained such certificate illegally or fraudulently.

THE LAND HAVING BEEN SOLD TO ANOTHER BY ENTRYMAN DOES NOT DEPRIVE COMMISSIONER OF AUTHORITY TO CANCEL.-The fact that such entryman had sold and conveyed the land so entered to an innocent purchaser would not deprive the commissioner of the authority to cancel an entry illegally or fraudulently made.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Affirmed, with costs.

Smith &amp Smith, for Appellant.

After final entry has been made upon a pre-emption claim by a pre-emptor in due form, and payment from the land has been made, and final proof certificate issued, and a sale is made by the pre-emptor to an innocent purchaser, for value in good faith, it is not within the power of the land office to cancel the pre-emption entry, and deprive the innocent purchaser of the property he has bought without notice to him, and without any fault upon his part. (Smith v Ewing, 23 F. 741; Perry v. O'Hanlon, 11 Mo 585, 49 Am. Dec. 100; Brill v. Stiles, 35 Ill. 309, 85 Am. Dec. 364; Cornelius v. Kessel, 58 Wis. 241, 16 N.W. 550; United States v. Minor, 114 U.S. 233, 5 S.Ct. 836; Myers v. Croft, 13 Wall. 291.) A right to a patent once vested is treated by the government, when dealing with the public lands, as equivalent to a patent issue. (Stark v. Starrs, 6 Wall. 402.)

R. S. Spence and Hawley & Reeves, for Respondent.

A pre-emption claimant acquires no title to land until he has fully complied with all the prerequisite requirements, and paid for the land. (Decision of Secretary Vilas in Smith v. Custer, 2 Copp. Pub. Land Laws (1890), p. 796, subd. 2; Frisbie v. Whitney, 9 Wall. 187, 197; The Yosemite Valley Case, 15 Wall. 77, 94; United States v. Schurz, 102 U.S. 378, 408.) Six months' residence of a pre-emptor is a regulation of the land department, well established as a part of the public land system, so that it now has the force and effect of law. (Appeal of McConliss, 2 Dec. Dept. Int. 622; Forbes v. Driscoll, 3 Dec. Dept. Int. 87; Appeal of Woodley, 4 Dec. Dept. Int. 198; Appeal of Kathan, 5 Dec. Dept. Int. 94; Bohall v. Dilla, 114 U.S. 47, 5 S.Ct. 782; Frisbie v. Whitney, 9 Wall. 187; Kellom v. Easley, 1 Dill. 281, 2 Abb. U.S. 559, Fed. Cas. No. 7668.) The government land department has exclusive jurisdiction of all questions relating to the sale and disposition of the public lands up to the time of the issuing of the patent. (Forbes v. Driscoll, 4 Dak. 336, 31 N.W. 633; Shepley v. Cowan, 91 U.S. 330-340; U. S. Rev. Stats., sec. 2263; Myers v. Croft, 13 Wall. 291-297; Root v. Shields, 1 Woolw. 340, Fed. Cas. No. 12,038.) It is the duty of the department to cancel any entry which has been made contrary to law, or where compliance with legal prerequisites did not take place, or where by false proofs a securing compliance was fraudulently established. (U. S. Rev. Stats., sec. 2273; Steel v. Smelting Co., 106 U.S. 447, 1 S.Ct. 389; Harkness v. Underhill, 1 Black, 316; Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U.S. 330, 340; United States v. Schurz, 102 U.S. 378; Lee v. Johnson, 116 U.S. 48, 6 S.Ct. 249; Vance v. Burbank, 101 U.S. 514; Moore v. Robbins, 96 U.S. 530; Aiken v. Ferry, 6 Saw. 79, Fed. Cas. No. 112.) One who purchases land with a knowledge of facts which would have led him, by the use of ordinary diligence, to a full knowledge of an outstanding equity, is not a purchaser without notice. (Hinde v. Vattier, 1 McLean, 110, Fed. Cas. No. 6512.) The purchaser of land is chargeable with notice of the legal consequences of facts within his knowledge. (Cuyler v. Ferrill, 1 Abb. (U.S.) 169, Fed. Cas. No. 3523.)

SULLIVAN, C. J. Huston and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action in ejectment, brought by the plaintiff against the defendant, to recover possession of certain real estate situated in the county of Bear Lake, in this state. The complaint is the ordinary one in an action of ejectment. The answer is a general denial of the allegations of the complaint, and sets up that defendant is in possession of said land under a homestead entry. The pleadings are not verified. The case was heard in the court below upon the following stipulation of facts: "In the above cause it is stipulated and agreed that the facts are as follows: That about the month of August, 1884, Lauritz Neilson made pre-emption declaratory statement No. 1362, embracing the land in controversy in this cause, and on the first day of October, 1885, made his pre-emption entry and final proof for the land embraced in his declaratory statement, being the lands in controversy in this case and in the case of S. P. Sorrenson v. Emil Meyers, post, p. 61. That he, on that day, purchased said land, and paid $ 200 therefor, and took patent certificate for the same. That on the twenty-eighth day of October, 1886, said Lauritz S. Neilson, together with his wife, Catharine Neilson, by deed of conveyance duly executed and recorded, conveyed the lands described in the complaint to the plaintiff, Thomas W. Jones. That said Thomas W. Jones has never conveyed any of said land to any other person. That said conveyance to Thomas W. Jones was made in consideration of the sum of $ 200, which had been paid in the month of June or July, 1886. That said purchase was made in good faith by said purchaser on June 7, 1886. That the defendant filed an affidavit in the United States land office at Oxford, Idaho, charging that Lauritz S. Neilson had failed to comply with the requirements of the pre-emption law in the matter of residence and improvement of said land, previous to his final proof and payment therefor. That Neilson was notified by the officers of the United States land office that a day had been set for hearing, to determine the question as to whether his final entry should be canceled on account of the fraud charged. That Neilson ignored this notice, and did not endeavor to resist such cancellation, if it could be made. That the defendant appeared at the time appointed, August 10, 1886, and offered his evidence; and that afterward, on the twenty-fourth day of January, 1887, an order was made by the officers of the land department of the United States canceling the final entry of Lauritz S. Neilson; and thereafter, on the twenty-fifth day of January, 1887, the defendant, Emil Meyers, made homestead entry upon said land, which was accepted by the land department of the United States, and the proper certificate issued. That the defendant, Emil Meyers, took possession of the land mentioned in the complaint on the twentieth day of January, 1887, and has ever since had possession of the same. That a reasonable rent for the premises described in the complaint during the time that the defendant has been in possession is $ 150. That the damage to the plaintiff, being ejected from the land, is one dollar; and it is agreed, in case the plaintiff recover in this case, that he shall recover one dollar damages for the taking of the place by the defendant, and $ 150 damages for rent during the time he has been excluded therefrom by the defendant. It is further agreed that said Neilson had not resided upon the said land six months prior to his making said final proof, and did not reside upon the land at the time he made said proof."

It is admitted that Lauritz S. Neilson, the grantor of plaintiff entered the land in question under and by virtue of the pre-emption laws of the United States, and that at the time he made his final proof and received his final receipt or certificate from the receiver he had not resided upon said land six months, and did not reside thereon at the time of making said final proof. It is conceded by appellant that the final certificate was procured illegally and fraudulently, but appellant contends that the land department of the United States has no authority to cancel an entry where final certificate has been issued, and the land described therein sold to such a purchaser as the stipulation of facts shows appellant to be. It is admitted that respondent entered a contest to set aside Neilson's entry in June, 1886. It is also admitted that appellant purchased the land in question from Neilson in June, 1886, and paid him therefor in June or July, 1886, but that said Neilson did not execute a deed of conveyance conveying said land to the appellant until October 28, 1886. Neilson was duly notified that said contest was set for hearing August 10, 1886, but failed to appear and defend. The respondent in this cause introduced his testimony at said hearing, and thereafter said entry was canceled by the proper officer of the land department. The question, then, is, Had the land department, under the facts of this case, the authority to cancel said entry? The Secretary of the Interior is given by law the entire supervision of the survey and the sale of the public lands. The commissioner of the general land office is by law required to perform, under the directions of the Secretary of the Interior, all executive duties appertaining to the survey and sale of the public lands of the United States. The registers and receivers are but local officers of the several land districts, charged with the performance of certain duties, and subject to the direction and...