United States v. Hemmer

• Decision Date: 27 March 1912
• Docket Number: 573.
• Citation: 195 F. 790
• Parties: UNITED STATES v. HEMMER et al.
• Court: U.S. District Court — District of South Dakota

195 F. 790

UNITED STATES v. HEMMER et al.

No. 573.

United States District Court, D. South Dakota, Southern Division.

March 27, 1912

[Copyrighted Material Omitted]

Edward E. Wagner, U.S. Dist. Atty.

Rice &amp Benson, for defendants Peart, Hemmer, and Fletcher.

Frederick A. Warren, State's Atty., for defendants Moody County Henderson, and Hornby.

ELLIOTT District Judge.

This action was brought by the United States of America, complainant, against the defendants above named, by the United States district attorney for the District of South Dakota, pursuant to instructions of the Attorney General of the United States.

The complainant states its cause of action in its complaint filed herein, in substance, after the formal portions, as follows:

It is alleged: That Henry H. Taylor, sometimes known and designated Henry Taylor, was, and during all the times named in the complaint was, a Sioux Indian of the full blood, belonging to and a member of the Santee Sioux band of Indians. That on or about October 7, 1878, in pursuance of authority conferred by Act Cong. March 3, 1875, c. 131, 18 Stat.L. 420 (U.S. Comp. St. 1901, p. 1419), he made application to enter, and entered, the W. 1/2 of the S.W. 1/4 of section 22, and the E. 1/2 of the S.E. 1/4 of section 21, in township 106, range 49 W., of the Fifth Principal Meridian, in Moody county, S.D., under an act of Congress entitled 'An act to secure homesteads to actual settlers on the public domain,' approved May 20, 1862 (chapter 75, 12 Stat. 392), and acts amendatory thereof, by making satisfactory proof under the rules prescribed by the Secretary of the Interior to the officers of the United States land office located at Sioux Falls, S.D., then territory of Dakota, that he, said Henry H. Taylor, was an Indian born in the United States, was the head of a family, was 21 years old, and had abandoned his tribal relations as such Indian. That the application and affidavits filed by said Taylor in said United States land office and subsequently filed in the General Land Office of the United States contained, among other things:

'That I am an Indian, formerly of the Santee Sioux Tribe; that I have abandoned my tribal relations with said tribe, and adopt the habits of civilized life.'

That the application of said Taylor was designated as an Indian homestead application, and the receiver's receipt issued by the receiver of said land office was indorsed and designated 'Indian Homestead,' as well as the final certificate issued by the receiver of the United States land office at Mitchell, Dakota Territory, dated December 11, 1884. That Taylor resided upon, and occupied, said premises as his homestead, and made satisfactory proof to the officers of the United States land office in charge of the land office at Mitchell, as well as the General Land Office at Washington, of his occupancy and residence upon said land for a period of five years, and, in pursuance of his homestead entry thereon, made full payment for said land, and received his final receiver's certificate December 11, 1884, wherein it was designated that the patent to be issued to said Taylor for said homestead entry was, and should be, subject to all the restraints and restrictions upon alienation of said land, as provided by said Act March 3, 1875, as well as the Act Cong. July 4, 1884, c. 180, 23 Stat.L. 96 (U.S. Comp. St. 1901, p. 1420).

That said Taylor continued to reside upon said land with his family and occupy the same as his homestead until about April 28, 1909, when he and his family were forcibly removed therefrom by the defendant Louis Hemmer, who removed or caused said Taylor and his family to be removed from said premises by force and violence, and who has by such means wrongfully deprived said Taylor of the possession of said premises at all times since. That while said Taylor, with his family, resided upon and occupied said real property in the manner above stated, and about August 8, 1908, he and his wife, Anna Taylor, entered into an agreement or contract for deed with the defendant J. E. Peart, whereby said Taylor and his said wife agreed to sell and convey said real property above described to the defendant, Peart, for a valuable consideration. That said contract for deed was filed for record and recorded in the office of the register of deeds of Moody county, S.D., August 29, 1908. And thereafter, on or about September 8, 1908, the defendant Peart assigned said contract to the defendant William W. Fletcher, which assignment was in writing, and was filed for record in the office of said register of deeds on the 11th day of September, 1909, and duly recorded in said office. That thereafter, about November 21, 1908, said Taylor and his wife having refused to sell and convey said real property to said Fletcher in accordance with said contract, said Fletcher caused a suit to be instituted in this court against said Taylor and wife to compel the specific performance of said contract to convey said real property by said Taylor and his wife, and on the 30th day of December, 1908, a decree of this court was entered in said suit, a copy of which is set forth in the complaint. In substance, said judgment in said action wherein William W. Fletcher was complainant and Henry Taylor and Anna Taylor were defendants finds the execution of the said contract by Taylor and wife to Peart, and the assignment to Fletcher, and decrees the specific performance thereof, and further provides that if the said Henry Taylor and Anna Taylor, the defendants, refuse to execute and deliver a deed to said William W. Fletcher, conveying said premises within 30 days from the date of said decree, which was the 30th day of December, A.D. 1908, F. A. Spafford of Flandreau, S.D., was thereby appointed master, to execute and deliver to the said Fletcher a deed of conveyance to said premises, and the decree provided that such deed should in all respects be of the same force and effect as if made, executed, and delivered by the said Henry Taylor and Anna Taylor, his wife.

It is further alleged that, pursuant to said decree, a deed was executed by said Spafford to the defendant Fletcher, purporting to convey the said real property to said Fletcher, and on the 5th day of February, 1909, the defendant Fletcher executed and delivered a deed to said property to said Hemmer, both of which deeds were recorded in the office of the register of deeds of said county. It is therefore alleged that the defendant Hemmer claims under this deed an estate in or right to the possession of said real property by virtue of said deed from Fletcher to him, and that he deprives said Taylor of the possession of this land by virtue thereof.

It is further alleged, in substance, that although the said Indian entered this land as a homestead under and pursuant to Act March 3, 1875, that he made his final proof and payment for said land under the requirements promulgated by the Secretary of the Interior subsequent to July 4, 1884, and that he was entitled to receive from the United States or its duly authorized officers and agents a patent for said land, in accordance with the provisions of said act of July 4, 1884, which contains a provision that the United States will hold the land for a period of 25 years in trust for the sole use and benefit of the Indian, etc.

It is further alleged that although said Taylor was entitled to a patent under said act of Congress, containing this 25-year nonalienation provision, there was issued to him by mistake a patent purporting to have been issued under the act of Congress approved January 18, 1881 (chapter 23, 21 Stat. 315), and the patent contained the provision:

'This patent is issued upon the express condition that the title hereby conveyed shall not be subject to alienation or incumbrance, whether by voluntary conveyance or by judgment, or the decree of any court, or subject to taxation of any character, and shall remain inalienable and not subject to taxation for a period of twenty years from the date thereof, as provided by the act of Congress approved January 18, 1881.'

It is further alleged that such patent was issued without authority of law and by mistake, and that said act of Congress approved January 18, 1881, was enacted for the sole use and benefit of the Winnebago Indians of Nebraska and Wisconsin, and that the said Taylor was not a Winnebago Indian of Nebraska or Wisconsin, and that the said Taylor was a Santee Indian of the Sioux Tribe as above stated, and was not entitled to the provisions of said act of Congress of January 18, 1881.

It is further alleged that, when said patent was issued as above stated, as a matter of fact he was entitled to receive a patent to the effect that the United States would hold said land for the use and benefit of said Taylor or his widow and heirs, in trust, for a period of 25 years, and not otherwise, under the provisions of the act of 1884.

It is further alleged that, although said Taylor was entitled to such patent, none was issued to him until the 10th day of June, A.D. 1909, on which date the President of the United States caused to be issued to the said Taylor a patent, set forth in the complaint, which was a patent issued in accordance with the provisions of the act of Congress of July 4, 1884, and contained a provision that the United States does and will hold the land above described for the period of 25 years, in trust, for the sole use and benefit of said Henry Taylor, or, in case of his decease, of his widow and heirs, according to the laws of the state where such land is located, and at the expiration of said period the United States will convey the same by patent to the said Henry Taylor, or his widow and heirs as aforesaid, in fee discharged of said...