Pierce v. Frace

• Decision Date: 11 February 1891
• Citation: 2 Wash. 81,26 P. 192
• Parties: PIERCE v. FRACE. [1]
• Court: Washington Supreme Court

26 P. 192

2 Wash. 81

PIERCE v. FRACE. ^[1]

Supreme Court of Washington

February 11, 1891

Error to superior court, Pierce county.

DUNBAR J., dissenting.

Doolittle, Pritchard & Stevens, for plaintiff in error.

Judson, Sharpstein & Sullivan, for defendant in error.

HOYT, J.

Plaintiff in error filed his complaint in ejectment, and sought to recover possession of certain land therein described. Defendant in error answered, denying the allegations of the complaint, and alleging as an equitable defense facts substantially as follows: "On December 20 1880, the plaintiff in error filed his declaratory statement for the premises in controversy under the pre-emption laws of the United States. On February 13, 1883, he made final proof to the satisfaction of the register and receiver of the United States land-office Olympia, and on March 12, 1883, his cash entry was allowed by the register and receiver, and a final receipt issued to him; that on August 7, 1883, and while the final proof of plaintiff in error was in the hands of the commissioner of the general land-office, the defendant in error filed with said commissioner his corroborated affidavit, in which he alleged that plaintiff in error had 'at no time established his residence on said land, and that he had failed to improve and cultivate the same as required by law, and that the said cash entry had been procured by fraud.' The commissioner on the 16th day of May, 1885, suspended the entry, and ordered a hearing to be had before the register and receiver, touching the charges made by defendant in error in said affidavits. On July 13 1885, said hearing was had, at which plaintiff in error appeared with his witnesses, as did also the defendant in error. The evidence was taken, and after argument the register and receiver found that plaintiff in error 'at no time established his residence on the land embraced in his said cash entry; that he failed to cultivate and improve said land as required by law;' and they, therefore, advised that said cash entry be canceled. Plaintiff in error thereupon took an appeal from the decision of the register and receiver to the commissioner of the general land-office and on June 3, 1886, the commissioner affirmed said decision, and ordered plaintiff in error's cash entry to be canceled. Again plaintiff in error took an appeal, this time to the secretary of the interior, and on March 31, 1888, the secretary affirmed the decision of the commissioner of the general land-office, and thereafter canceled said plaintiff's cash entry. Subsequently the defendant in error filed upon said premises embraced in said cash entry under the homestead laws of the United States, and thereafter made his final proof, and received from the register and receiver of the land-office his patent certificate for said premises." To this answer plaintiff in error filed a reply, in which he asserted that the proceedings of the land-office after the 12th day of March, 1883, the date on which his certificate was issued, "were wholly void, for the reason that said officers had no jurisdiction whatever over the said land or the plaintiff in error," and denied that the defendant in error, in the affidavit filed by him with the commissioner of the general land-office, alleged that the plaintiff in error failed to improve and cultivate said land as required by law, or that said entry of plaintiff in error had been procured by fraud. He further denied that the decision of the commissioner of the general land-office was affirmed by the secretary of the interior, except as to the findings of the register and receiver and commissioner that plaintiff in error had not made his residence upon said land. Defendant in error demurred to this reply, and the ruling of the court sustaining said demurrer is relied upon as cause for the reversal of the judgment rendered thereon.

Upon this record two questions have been argued: First. Had the court jurisdiction of the subject-matter of the action? Second. Had the officers of the land department jurisdiction to cancel the entry of plaintiff in error?

The first proposition is so largely dependent on the latter that it is necessary only to say that, if the final receipt was in force and uncanceled, it would, under the laws of this state, authorize the holder to maintain an action for the protection of his possession thereunder. The authorities cited are to the effect that the courts will not take jurisdiction to determine the title of adverse claimants to land until the land department is through with it, and the legal title has passed from the government, and are not applicable to a case like the one at bar, where the right of possession under the laws of the state is alone in question. It is true that the language of the court in the case of Hays v. Parker, 2 Wash. T. 198, 3 P. 901, seems to warrant the contention of defendant in error; but the language used must be interpreted in the light of the facts of the case, and, thus interpreted, is not inconsistent with the above-stated conclusions; for though that was an action of ejectment, and the plaintiff relied upon a final receipt as in this case, yet it appeared that at the time the action was commenced the plaintiff was in the land-office of the United States waging a contest with the defendant as to the validity of the right upon which his action was founded, and under these circumstances the court very properly refused to aid either party in so changing the situation as to affect, or have a tendency to affect, the contest then being waged in the land-office. Under the second question above stated, the contention of the plaintiff in error is that a patent certificate issued in due form, in favor of a pre-emptioner, for lands subject to entry under the pre-emption law, where no appeal is taken from the decision of the register and receiver in granting the same, cannot be set aside by the land department upon proceedings subsequently initiated by a stranger, and upon the ground of failure to comply with the law in relation to settlement and improvement; while the defendant in error contends that until the issuance of the patent the commissioner of the general land-office may suspend an entry, and place the pre-emption claimant in the same position that he was prior to the offering of proof; and that on said second hearing the government can itself, through it officers and agents or by the efforts of an informer, re-examine the question as to the pre-emption claimant's compliance with the law; and if on said hearing it is shown that the claimant has not done so, that the commissioner of the general land-office may cancel the entry, and allow another to file upon the land.

These contentions have been elaborately argued by counsel for the respective parties, who by their zeal and ability have brought together and summarized nearly all the authorities upon this subject; and the labors of the court in coming to a conclusion as to these important questions have been thereby greatly facilitated. Plaintiff in error, to maintain his contention above stated, relies upon the provisions of section 2263 of the Revised Statutes of the United States, which, he claims, constitute the register and receiver a tribunal to hear and determine all questions relating to the settlement and improvement of pre-emption claims, and that, in the absence of a contest, there is no appeal to the higher officers of the land department; the only exception being that they shall hear and determine these questions agreeably to such rules as may be prescribed by the secretary of the interior. The language of this section is as follows: "Prior to any entries being made under and by virtue of the provisions of section twenty-two hundred and fifty-nine, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands lie, agreeably to such rules as may be prescribed by the secretary of the interior; and all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void," and would seem to warrant such construction, though it might be contended that, under the power given to the secretary of the interior, he might provide by rules that the decision of these facts should, in the first instance, be only tentative, and that before such decision should become final the register and receiver should, when directed by the commissioner of the general land-office, again pass upon the question, and so continue to do until their superior officers were satisfied with the correctness of their determination. This latter contention would, however, be an unnatural and forced one, and if said section stood alone, unqualified by other provisions of the land law, we should have little trouble in coming to the conclusion that the contention of the plaintiff in error was correct.

This language, however, must be interpreted in the light of all the provisions of law relating to the disposition of public lands. Upon an investigation of these provisions, we find that the entire duty of supervising the disposal of such lands is vested in the secretary of the interior and the commissioner of the general land-office; that such commissioner is the head of a bureau having in charge all matters relating to such lands; that the register and receiver are inferior officers in such bureau, who must make full report of all their proceedings to such commissioner, who is charged with the duty of seeing that a patent issues to persons entitled thereto. These provisions were in existence at the time of the enactment of the pre-emption law of 1841, in which was found the section above quoted from the Revised Statutes. ...