Le Marchal v. Tegarden

• Decision Date: 29 November 1909
• Docket Number: 2,756.
• Citation: 175 F. 682
• Parties: LE MARCHAL v. TEGARDEN.
• Court: U.S. Court of Appeals — Eighth Circuit

175 F. 682

LE MARCHAL v. TEGARDEN.

No. 2,756.

United States Court of Appeals, Eighth Circuit.

November 29, 1909

J. H Hornsby, for appellant.

Seawell & Seawell and J. W. Story, for appellee.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

ADAMS Circuit Judge.

This was a bill in equity brought by Le Marchal against Tegarden to declare a trust in and secure a conveyance to him of a certain tract of land to which the latter had acquired legal title. The Circuit Court dismissed the bill, and complainant brought the case here by appeal.

In December, 1893, Le Marchal relying, not only upon the fact that the public land records disclosed that the S.E. 1/4 of the N.W. 1/4 of section 11, township 17 N., range 15 W., in Marion county, Ark., was vacant public land, and as such subject to entry, but also relying upon a letter from the Commissioner of the General Land Office, written in answer to his special inquiry, to the same effect, made a homestead entry upon it. He soon afterwards began to improve it, and expended about $2,500 in clearing the land, constructing a residence and outbuildings, and planting orchards and vines thereon.

In January, 1894, he commenced living there with his family, and has continued to do so until the present time. In March 1899, after the requisite five years had elapsed, he made final proof of his residence and cultivation, paid all the fees required by law to be paid, and thereby presumptively became the equitable owner of the land and entitled to a patent therefor. In April, 1901, before Le Marchal received his patent Tegarden presented to the register and receiver of the local land office in Arkansas an application in the name of the heirs of William Goodall, whose rights he had acquired by assignment, for a change of a certain cash entry made by Goodall in 1848 so as to make it cover the homestead entry of Le Marchal, and this was forwarded to the Commissioner of the General Land Office at Washington for his action. The application contained averments to the effect that Goodall in November, 1848, purchased and paid for what he supposed was the S.E. 1/4 of the N.W. 1/4 of section 11, township '17' N., range 15 W.; that when he paid for it he took a receiver's receipt for the money, in which the land was correctly described as located in township 17, but that the patent certificate, issued to him on the same day by the register incorrectly described the land locating it in township '16' instead of '17'; that this certificate was forwarded to the Commissioner of the General Land Office in Washington, upon which, on July 1, 1850, a patent was issued to Goodall, conveying to him the land in township '16' as described in the certificate instead of in township '17' as it should have done. Notice of the hearing of this application was given to Le Marchal, and he appeared before the Commissioner who heard the evidence produced by both parties, and on May 3, 1902, decided against Tegarden and in favor of Le Marchal, the present complainant. Afterwards an appeal was prosecuted to the Secretary of the Interior, who, on January 21, 1903, reversed the decision of the Commissioner, and ordered the patent which had issued to Goodall for the tract in township 16 to be canceled, and a patent for the land in controversy in township 17 to be issued to the Goodall heirs. Afterwards a patent was duly issued, conveying the land entered by Le Marchal to him, not including however, the 40-acre tract now in dispute. Upon this tract his residence had been built and practically all his improvements had been made. Much evidence was heard by the officers of the Land Department on the issue joined whether the original entry of Goodall was intended to be upon the land in controversy or elsewhere, and the same and other like evidence was heard at the trial in the court below and is now before us on appeal.

There is proof, and to our minds quite conclusive, that Goodall never intended to enter the tract in controversy, but did intend to enter the 'N.E.' 1/4 instead of the 'S.E.' 1/4. It was, we think, upon this northeast 40-acre tract that the mill site which Goodall confessedly desired to acquire was situated. There is also much evidence tending to estop those under whom Tegarden claims as well as Tegarden himself from asserting his legal title against Le Marchal's equitable right.

The evidence may be summarized as follows: The register's certificate delivered to Goodall was an instrument of a high order of importance.

Upon it and it alone could a patent be issued, and even before its issue the certificate conferred upon him an equitable title to the land described in it. Carroll v. Safford, 3 How. 441, 11 L.Ed. 671. Goodall deliberately, and we must presume intelligently, accepted this important document which did not describe or concern the tract of land which it is now claimed he intended to enter, but a totally different one, and caused it to be forwarded to Washington and thereafter received a patent for the land as described in it. This patent was recorded in the General Land Office, and that being in law delivery to the patentee (United States v. Schurz, 102 U.S. 378, 26 L.Ed. 167) bound him and all claiming under him constructively, at least, to a knowledge of its contents.

Goodall died in 1850, two years after he made his cash entry, without ever occupying the land. His mill was built on the 'N.E.' 1/4 and not on the 'S.E.' 1/4 and none of his heirs made a claim to the land for 50 years thereafter; and then not until Le Marchal had made his homestead entry, had occupied and cultivated the land for more than 5 years, and at a large expense had established a home for himself and his family thereon. Even then Goodall's heirs asserted no claim. The proof satisfies us that they, ignorant of any real claim in themselves, were tricked into assigning their legal right to Tegarden who was a land speculator living in the region where the land in controversy was situated. The circumstances tend strongly to show that Tegarden must have known, at and before the time he took steps to acquire their legal right, of the work, labor, and expenditures which had been and were then being put upon the premises by Le Marchal. Whether Goodall originally intended to make his cash entry upon the tract in controversy is immaterial except in so far as it throws light upon other phases of the case. That was a question of fact before the Land Department in a controversy between those claiming under him and Le Marchal, and the final decision of the Secretary of the Interior upon the appeal to him, if there was no fraud or gross mistake of fact, is conclusive upon us. James v. Germania Iron Co., 46 C.C.A. 476, 107 F. 597; Whitcomb v. White, 214 U.S. 15, 29 Sup.Ct. 599, 53 L.Ed. 889, and cases cited. But if the officers of the Land Department upon the facts found, conceded or established without dispute, misapplied the law, and, as a result, issued a patent to the wrongful claimant, the patentee will be held in equity as a trustee for the rightful owner. Cases supra. And whatever we may think of the evidence tending to create an estoppel against the defendant we are indisposed to base our decision of this case upon that doctrine. We find a more satisfactory ground upon which to put it.

The defendant intrenches himself behind the decision of the Secretary of the Interior and claims, as his main defense, that that decision affords an insurmountable obstacle to the relief sought by complainant. If that defense is not sustained there is little if anything left to defeat complainant's recovery. It cannot be sustained if it resulted from a misconception of the applicatory law; in other words it cannot be sustained if it unlawfully deprived complainant of vested rights and awarded defendant a remedy unauthorized by law and unwarranted by the undisputed facts of the case. In reaching a conclusion on this question we must consider the meaning of certain statutory provisions and the character of the proceedings taken before the Land Department.

Section 2372, Rev. St. 1878 (U.S. Comp. St. 1901, p. 1451), is as follows:

'In all cases of an entry hereafter made, of a tract of land not intended to be entered, by a mistake of the true numbers of the tract intended to be entered, where, the tract, thus erroneously entered, does not, in quantity, exceed one-half section, and where the certificate of the original purchaser has not been assigned, or his right in any way transferred, the purchaser, or, in case of his death, the legal representatives, not being assignees or transferees, may, in any case coming within the provisions of this section, file his own affidavit, with such additional evidence as can be procured, showing the mistake of the numbers of the tract intended to be entered, and that every reasonable precaution and exertion had been used to avoid the error, with the register and receiver of the land district within which such tract of land is situated, who shall transmit the evidence submitted to them in each case, together with their written opinion, both as to the existence of the mistake and the credibility of each person testifying thereto, to the Commissioner of the General Land Office, who, if he be entirely satisfied that the mistake has been made, and that every reasonable precaution and exertion had been made to avoid it, is authorized to change the entry, and transfer the payment from the tract erroneously entered, to that intended to be entered, if unsold; but, if sold, to any other tract liable to entry; but the oath of the person interested shall in no case be deemed sufficient, in the absence of other corroborating testimony, to authorize any such change of entry; nor shall anything herein contained

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