King v. McAndrews, 1,569.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 111 F. 860
• Docket Number: 1,569.
• Parties: KING v. McANDREWS et al.
• Decision Date: 28 October 1901

111 F. 860

KING
v.
McANDREWS et al.

No. 1,569.

United States Court of Appeals, Eighth Circuit.

October 28, 1901

[111 F. 861] [Copyrighted Material Omitted] [111 F. 862]

John H. King (S. H. Wright and George H. King, on the brief), for plaintiff in error.

John D. Rivers, for defendants in error. Judge.

George H. King brought an action of ejectment in the circuit court of the United States for the district of South Dakota against M. McAndrews, Charles H. Pease, L.C. Rush, and William Lawson to recover possession of lots 3 and 4 and the S.E. 1/4 of the S.W. 1/4 of section 10, in township 104, of range 71 W., of the fifth principal meridian. He alleged in his complaint that he was the owner and entitled to the possession of the land, and that the defendants wrongfully withheld it from him. The defendants denied the title of the plaintiff, admitted their possession, and alleged that the land was a part of the selected site of a town or city when it first became subject to entry, and that the plaintiff's title consisted of a void patent issued to Henry J. King on July 6, 1899. The plaintiff filed a replication, in which he denied the averments of the answer. At the trial he offered his patent in evidence, and the court sustained the objection to it that it was void because the land it described was within the corporate limits of the city of Chamberlain when the patentee entered it. This ruling defeated the claim of the plaintiff, and a verdict and judgment in favor of the defendants were rendered by direction of the court. These rulings of the trial court are challenged by this writ of error. The learned judge who made them delivered an opinion upon a motion for a new trial of this action, in which he stated the reasons which led him to his conclusions, and this opinion is published in 104 F. 430.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

SANBORN, Circuit Judge, after stating the case as above, .

The only complaint of the trial of this case is that, the absence of any bill in equity or direct title under it with a trust in favor of the defendants, the circuit court held it void on a collateral attack in an action at law. It presents the old question, so often discussed and decided by the supreme court, when is a patent of the United States open to indirect attack? When is it void on its face? In U.S. v. Winona & St. P.R. Co., 67 F. 948, 954, 959, 15 C.C.A. 96, 102, 107, 32 U.S.App. 272, 281, 289, in U.S. v. Northern Pac. R. Co., 95 F. 864, 870, 37 C.C.A. 290, 296, and in James v. Iron Co., 46 C.C.A. 476, 107 F. 597, 600, this court had occasion to consider this question in cases of grave moment, to review, digest, and analyze the decisions of the supreme court upon it, and to deduce from them and announce the principles which, in our opinion, those decisions have established. The discussion of the question, and the review and analysis of those decisions, will be found in the opinion in the case first cited, and it would be a work of supererogation to repeat them here. Our decisions in that case [111 F. 863] and in the case of U.S. v. Northern Ac. R. Co., 95 F. 864, 870, 37 C.C.A. 290, 296, were reviewed and affirmed by the supreme court without any criticism of the views expressed or of the rules announced in those cases, so that the assumption may safely be indulged that they have received the approval of that court. U.S. v. Winona & St. P.R. Co., 165 U.S. 463, 17 Sup.Ct. 368, 41 L.Ed. 789; U.S. v. Northern Pac. R. Co., 177 U.S. 435, 20 Sup.Ct. 706, 44 L.Ed. 836. These are the rules and principles which this court deduced from the decisions of the supreme court upon this issue:

The land department of the United States, including in that term the secretary of the interior, the commissioner of the general land office, and their subordinate officers, constitutes a special tribunal, vested with judicial power to hear and determine the claims of all parties to the public lands which it is authorized to dispose of, and with power to execute its judgments by conveyances to the parties entitled to them. 9 Stat. 395, c. 108, Sec. 3 (Rev. Stat. Sec. 441); 5 Stat. c. 352, Sec. 1 (Rev. Stat. Sec. 453).

A patent of land within its jurisdiction, issued by the land department, is the judgment of that tribunal, and a conveyance of the legal title to the land to the patentee in execution of the judgment.

When such a patent to land within the jurisdiction of the department is issued, it is, like the judgments of other judicial tribunals, impervious to collateral attack.

The test of the jurisdiction of this tribunal is the true answer to the question, had the department the power to hear and determine the claims of the applicants of the land and to dispose of it in accordance with its decision? If that question can be answered in the affirmative, the land department had jurisdiction of the case, and the patent which evidences its decision conveys the legal title, and is impervious to collateral attack. If it must be answered in the negative, then its conveyance is void, and is as vulnerable in a collateral action at law as in a direct proceeding in equity to avoid it.

Land the title to which has passed from the United States before the claim on which the patent is based was initiated, land reserved from sale and disposition for military or other like purposes, land reserved by a claim under a Mexican or Spanish grant sub judice, and land for the disposition of which congress has made no provision, is not intrusted to the disposition of the land department, is not within its jurisdiction, and hence its patents for such land are void on their face, and may be collaterally attacked in an action at law. Polk v. Wendal, 9 Cranch, 87, 3 L.Ed. 665; Stoddard v. Chambers, 2 How. 284, 318, 11 L.Ed. 269; Easton v. Salisbury, 21 How. 426, 432, 16 L.Ed. 426; Reichart v. Felps, 6 Wall. 160, 18 L.Ed. 849; Best v. Polk, 18 Wall. 112, 117, 118, 21 L.Ed. 805; Sherman v. Buick, 93 U.S. 209, 23 L.Ed. 849; Iron Co. v. Cunningham, 155 U.S. 354, 15 Sup.Ct. 103, 39 L.Ed. 183; Railroad Co. v. Forsythe, 159 U.S. 46, 53, 15 Sup.Ct. 1020, 40 L.Ed. 71; Wright v. Roseberry, 121 U.S. 488, 519, 7 Sup.Ct. 985, 30 L.Ed. 1039; Davis v. Weibbold, 139 U.S. 507, 11 Sup.Ct. 628, 35 L.Ed. 238; Doolan v. Carr, 125 U.S. 618, 624, 632, 8 Sup.Ct. 1228, [111 F. 864] 31 L.Ed. 844; Wilcox v. Jackson, 13 Pet. 499, 511, 10 L.Ed. 264; Morton v. Nebraska, 21 Wall. 660, 674, 22 L.Ed. 639.

But land which the department is vested with the power and charged with the duty to hear and decide the claims of applicants for, and to dispose of in accordance with its decision, is within its jurisdiction, and its patent of such land conveys the legal title to it, and is impervious to collateral attack, whether its decision is right or wrong. Minter v. Crommelin, 18 How. 87, 89, 15 L.Ed. 279; U.S. v. Schurz, 102 U.S. 378, 401, 26 L.Ed. 167; Moore v. Robbins, 96 U.S. 530, 533, 24 L.Ed. 848; French v. Fyan, 93 U.S. 169, 172, 23 L.Ed. 812; Quinby v. Conlan, 104 U.S. 420, 26 L.Ed. 800; Refining Co. v. Kemp, 104 U.S. 636, 645-647, 26 L.Ed. 875; Steel v. Refining Co., 106 U.S. 447, 450, 452, 1 Sup.Ct. 389, 27 L.Ed. 226; Lee v. Johnson, 116 U.S. 48, 49, 6 Sup.Ct. 249, 29 L.Ed. 570; Heath v. Wallace, 138 U.S. 573, 585, 11 Sup.Ct. 380, 34 L.Ed. 1063; Knight v. Association, 142 U.S. 161, 212, 12 Sup.Ct. 258, 35 L.Ed. 974; Noble v. Railroad Co., 147 U.S. 174, 13 Sup.Ct. 271, 37 L.Ed. 123; Barden v. Railroad Co., 154 U.S. 288, 327, 14 Sup.Ct. 1030, 1038, 38 L.Ed. 992, 1001. In the case last cited the supreme court said:

'It is the established doctrine, expressed in numerous decisions of this court, that wherever congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the officers of the land department to issue a patent for such land upon ascertainment of certain facts, that department has jurisdiction to inquire into and determine as to the existence of such facts, and, in the absence of fraud imposition, or mistake, its determination is conclusive against collateral attack.'

The test of jurisdiction is not right decision, but the right to enter upon the inquiry and to make some decision. Foltz v. Railroad Co., 60 F. 316, 318, 8 C.C.A. 635, 637, 19 U.S.App 576, 581; U.S. v. Winona & St. P.R. Co., 67 F. 959, 15 C.C.A. 107, 32 U.S.App. 289. Hence a patent evidencing an erroneous decision of a question of law or a mistaken determination of an issue of fact, which the department was vested with the power, and charged with the duty, to decide, is as impervious to collateral attack as one which is the result of correct conclusions.

The remedy for an error of law in the action of the department regarding the title to land intrusted to its disposition is by a direct proceeding by a bill in equity to correct it. James v. Iron Co., 46 C.C.A. 476, 107 F. 597, 600; Bogan v. Mortgage Co., 63 F. 192, 195, 11 C.C.A. 128, 130, 27 U.S.App. 346, 350; U.S. v. Winona & St. P.R. Co., 67 F. 948, 958, 15 C.C.A. 96, 106, 32 U.S.App. 272, 288; U.S. v. Northern Ac. R. Co., 95 F. 864, 870, 37 C.C.A. 290, 296; Cunningham v. Ashley, 14 How. 377, 14 L.Ed. 462; Barnard v. Ashley, 18 How. 43, 15 L.Ed. 285; Garland v. Wynn, 20 How. 6, 15 L.Ed. 801; Lytle v. Arkansas, 22 How. 193, 16 L.Ed. 306; Lindsey v. Hawes, 2 Black, 554, 562, 17 L.Ed. 265; Johnson v. Towsley, 13 Wall. 72, 85, 20 L.Ed. 485; Moore v. Robbins, 96 U.S. 530, 538, 24 L.Ed. 848; Bernier v. Bernier, 147 U.S. 242, 13 Sup.Ct. 244, 37 L.Ed. 152.

The aggrieved party has a like remedy for the wrongful issue of a [111 F. 865] patent upon a misapprehension of the facts, which is induced by fraud or gross mistake. Gonzales v. French, 164 U.S. 338, 342, 17 Sup.Ct. 102, 42 L.Ed. 458; Root v. Shields, 1 Woolw. 340, 359, Fed. Cas. No. 12,038; U.S. v. Coos Bay Wagon-Road Co. (C.C.) 89 F. 151; U.S. v. Northern Pac. R....