Smith v. Ewing

• Decision Date: 01 June 1885
• Parties: SMITH v. EWING and another.
• Court: U.S. District Court — District of Oregon

23 F. 741

SMITH v. EWING and another.

United States Circuit Court, D. Oregon.

June 1, 1885

John J Balleray and J M. Bower, for plaintiff.

James F. Watson, for defendants.

DEADY J.

This suit is brought by a citizen of Georgia, to obtain a decree enjoining the defendants, who are citizens of Oregon, from trespassing on certain lands situate in Umatilla county Oregon, and that any claim they may have thereto may be declared null and void. The defendants answered separately and the cause was heard on exceptions to the answer of the defendant Ewing for impertinence.

It appears from the bill that on August 20, 1881, Arthur Webb settled, as a pre-emptor under the laws of the United States on and improved the S. 1/2 of the N.E. 1/4 and the N. 1/2 of the S.E. 1/4 of section 2, in township 2 N., of range 32 E. of the Wallamet meridian, and on the following day filed in the local land-office at La Grande his declaratory statement therefor; that on July 29, 1882, after due publication of notice thereof, Webb made his final proof of such settlement and improvement to the satisfaction of the register and receiver of said office, and paid for the land at the rate of $2.50 per acre, or $396.20 in all, for which he received from said receiver 'a certificate of purchase and entry of said land as by law required,' which on July 31, 1882, was duly recorded in the county clerk's office; that on the same day D. K. Smith purchased said land from said Webb, in good faith and for a valuable consideration, to-wit, $2,000; and took a conveyance thereof from said Webb, which was duly recorded on the same day; that on December 1, 1884, the plaintiff purchased said land from said Smith, subject to a mortgage thereon given to the American Mortgage Company of $1,000, in good faith and for valuable consideration, to-wit, $1,000, and received a conveyance thereof from said Smith, and is now the owner and in possession of the premises, which are valuable for agricultural purposes and reasonably worth $5,500; that on or about July 10, 1883, the defendant Ewing wrongfully entered on the premises and built a dwelling-house thereon, in which he has since and now resides, and cultivates about five acres thereof and cuts timber thereon; that he denies the plaintiff's title and interest in said land, and disputes his possession thereof, and claims an estate or interest therein adverse to the plaintiff.

By his answer, the defendant Ewing admits that Webb erected a building on the premises, and filed a declaratory statement thereon and entered the same, as a pre-emptor, as alleged in the bill; but denies that the plaintiff, or those under whom he claims, were ever the owners of the premises, or that the plaintiff is in possession of the same; and alleges that on April 21, 1876, he, being duly entitled to the benefit of the pre-emption law, settled on the premises under said law and filed his declaratory statement thereon; and afterwards, on December 4, 1876, with the permission of the register and receiver, 'duly changed' 'said entry,'-- meaning, I suppose, said 'declaratory statement;' that the settlement and entry of Webb was in 'conflict' with that of Ewing's, as changed on December 4th' that soon after the entry of the premises by Webb, but when is not stated, the defendant applied to the register and receiver to contest 'the claim' of the former to the land included in his 'declaratory statement and pretended entry upon the grounds above stated;: that thereafter such proceedings were had on such application that a contest was ordered thereon by the commissioner of the general land-office, and a hearing had before the register and receiver on January 17, 1883, who thereupon decided that neither siad Webb nor said Ewing had complied with the pre-emption law in the matter of residence, cultivation, and improvement, and recommended 'the cancellation of the filings and entries of both of said parties by the commissioner;' that Webb appealed from said decision to the commissioner, who affirmed the same, and from there took the case to the secretary of the interior, where D. K. Smith, the grantor of the plaintiff, intervened for his rights as a purchaser from Webb, as alleged in the bill herein, and asked that a patent for the land included in the declaratory statement of the latter be issued to him, but the secretary denied said application, and on February 21, 1884, affirmed the decision of the commissioner, and that thereupon said filings and entries were canceled by said commissioner, and 'all rights thereunder wholly annulled;' and that by reason of such contest and cancellation, the defendant became entitled under the law to enter said lands within 30 days from the date of said cancellation, and that he did within such period, to-wit, on March 17, 1884, apply to said land-office 'to enter said tract as a homestead,' which application was allowed; whereupon he 'commenced to reside upon and cultivate and improve said land as a homestead,' and has ever since continued to do the same.

The plaintiff excepts to so much of this answer as sets up the settlement and filing of Ewing on the premises in 1876, the contest thereabout with Webb in 1883, and the decisions thereon, and his subsequent entry of the land as a homestead, as impertinent. the ground on which this exception is based is that as soon as Webb entered the land at the local land-office, and received the certificate of purchase, it became his property; the legal title remaining in the vendor in trust for him until the patent should issue in due course of proceeding. That while any person interested may appear on the notice of final proof required by the act of March 3, 1879, (20 St. 472,) and contest the right of a settler to become a purchaser under the pre-emption law, and thereby prevent a certificate of purchase from being issued to such settler, or cause the same to be canceled on an appeal from the decision of the local land-office allowing the entry to be made, yet the government of the United States, having satisfied itself through its local agents, in the manner provided by law, that Webb was entitled, under the pre-emption law, to purchase the land, and having thereupon sold it to him, cannot institute a contest in the land department between the purchaser and any one else, or even itself, to set aside, cancel, or recall said certificate.

Section 2273 of the Revised Statutes gives the register and receiver the right to determine 'all questions as to the right of pre-emption arising between different settlers' on 'the same tract of land,' saving the right of appeal to the commissioner and the secretary of the interior. But at the date of Webb's entry and this alleged contest, Ewing's claim to the premises under his filing in 1876 was forfeited for want of final proof and payment within 30 months thereafter. Section 2267, Rev. St. He was then a stranger to the proceeding, and without interest in or relation to the land. No question could arise between Webb and him, as settlers thereon, nor as to the right of either to pre-empt the same. By reason of his neglect to make his final proof and payment, the effect of Ewing's filing had ceased, and he had long lost his status as a claimant under the pre-emption law. Therefore this proceeding in the land department that resulted in the attempted cancellation of Webb's certificate must be regarded, not as a contest under section 2273 of the Revised Statutes between two settlers on the same tract of land, but as an ex parte proceeding, instituted by the commissioner for the purpose of canceling Webb's certificate, upon the suggestion of a stranger that it was fraudulently obtained. The fact that Webb saw proper to participate in it with a view of protecting his certificate, does not affect its character in this respect.

Has the commissioner any such power? It is not...