Scott v. Lockey Inv. Co.

• Decision Date: 06 November 1893
• Docket Number: 202.
• Citation: 60 F. 34
• Parties: SCOTT v. LOCKEY INV. CO. et al.
• Court: U.S. District Court — District of Montana

60 F. 34

SCOTT v. LOCKEY INV. CO. et al.

No. 202.

United States Circuit Court, D. Montana.

November 6, 1893

Toole &amp Wallace, for complainant.

George F. Shelton, Henry N. Blake, W. E. Cullen, and M. Bullard, for defendants.

KNOWLES District Judge.

Complainant in this case has presented a bill to quiet title to certain premises described as mining claims. It is alleged that defendants claim title to the same by virtue of a patent to the premises from the United States. The patent, it appears is to the premises as agricultural land. It is averred in the bill that the claim described in the first cause of action was located on the 18th day of March, 1887; that the claim described in the second cause of action was located on the 17th day of December, 1886. It appears that the patent bears date June 13, 1889; that the entry was made in September 1888. When the application to enter the land was made, does not appear. The title of plaintiff, it will thus be seen, is derived from a location of the premises as mineral land; that of defendants, by virtue of a patent from the United States. The plaintiff has, therefore, only a possessory title, or easement, that is difficult to describe. The plaintiff asks to have the patent set aside, upon two grounds: The first is that the defendants claim under and by virtue of conveyances from one Samuel R. Patterson and wife, patentee of said premises, as a part of lot 2; that the entrance of said land was made with a piece of additional soldiers' homestead scrip, issued under certain acts of congress, respectively as follows: 12 Stat. 392; 13 Stat. 35; 14 Stat. 66; 17 St. 49; and Id. 333,--relating to soldiers' homestead rights, and the homestead rights of minor children, heirs of deceased soldiers and sailors. It is alleged, as one of the grounds which make the patent void, that Samuel R. Patterson was not a minor heir of Samuel Patterson, deceased, at the time of the entry of said land, but was at that date over 25 years old, all of which was known to said Lockey at the date of entry; that Lockey was the real party in interest; that the said Samuel R. Patterson never saw the land, and it was not entered for his benefit. It is not averred that the said Samuel R. Patterson was not an heir of Samuel Patterson, deceased, but that he was not his minor heir. The second ground upon which it is claimed that the patent should be canceled is that the premises were known mineral land at the date of the entry of the land, and that Lockey never filed an affidavit of its nonmineral character. To the bill the defendants filed their general demurrer upon the ground that the bill did not state facts sufficient to constitute a cause of action. There is no objection as to the form in which these issues are presented, or of the demurrer.

As to the first ground, it may be stated that the land department was called upon to determine as to whether the said Patterson was a proper man to enter said land, and whether he had performed the necessary acts to entitle him to make the same. In the case of Johnson v. Towsley, 13 Wall. 72, the supreme court said:

'That the action of the land office in issuing a patent for any of the public lands subject to sale, by pre-emption or otherwise, is conclusive of the legal title, must be admitted, under the principle above stated; and in all courts, and in all forms of judicial proceedings, when this title must control, either by reason of the limited powers of the court, or the essential character of the proceedings, no inquiry can be permitted into the circumstances under which it was obtained.'

In the case of Smelting Co. v. Kemp, 104 U.S. 640, the supreme court said:

'The execution and record of the patent are the final acts of the officers of the government for the transfer of its title; and, as they can be lawfully performed only after certain steps have been taken, that instrument, duly signed, countersigned, and sealed, not merely operates to pass the title, but is in the nature of an official declaration by that branch of the government to which the alienation of the public lands, under the law, is intrusted, that all the requirements preliminary to its issue have been complied with.'

In the case of Minter v. Crommelin, 18 How. 87, the supreme court, in speaking of patents, said:

'The rule being that the patent is evidence that all previous steps had been regularly taken to justify making of the patent.'

It may be said, also, that if there was any fraud committed in the representation as to the character of Patterson, or in any representations he may have made in procuring the patent,--as to whether it was for himself, or otherwise,--they were representations to the government through its officers, and any fraud perpetrated thereby was upon the government, and not upon plaintiff. The government is the only one who can take advantage of such fraud. Vance v. Burbank, 101 U.S. 514; U.S. v. San Jacinto Tin Co., 125 U.S. 281, 8 S.Ct. 850.

The second ground presents a question of more difficulty perhaps. From the fact that the land was...