Wilson v. Fine
| Decision Date | 02 September 1889 |
| Citation | 40 F. 52 |
| Parties | WILSON v. FINE. |
| Court | U.S. District Court — District of Oregon |
Syllabus by the Court
An entry and certificate, issued to a settler under the homestead act for land subject to entry thereunder, cannot be set aside or canceled by the land department, on its own motion, for fraud or mistake committed or occurring in obtaining or issuing it. In such case the government must seek redress in the courts, where the matter may be heard and determined according to the law applicable to the rights of individuals under the circumstances. Smith v. Ewing, 11 Sawy. 56, 23 F. 741, affirmed.
Charles B. Bellinger, for plaintiff.
Albert H. Tanner, for defendant.
This suit is brought to recover the possession of a quarter section of land, situate in Lake county, Or.
From the amended complaint it appears that the plaintiff is a citizen of California, and the defendant a citizen of Oregon that about three years before the commencement of this action (February 17, 1889) one G. C. Alexander duly received a final certificate to the premises, as a settler thereon under the homestead law, from the proper officers of the land department of the United States, who thereafter duly conveyed the same to the plaintiff; that the plaintiff is the owner of the premises in fee, and entitled to the possession thereof that about January 1, 1889, the plaintiff being in the possession of the premises, as such owner, the defendant entered thereon and evicted him therefrom, and now wrongfully withholds the possession from him.
The defendant demurred to the complaint, for that it did not appear that the plaintiff had the legal title, without which the action for possession could not be maintained in this court.
After the argument the demurrer was overruled, the court holding that the prior possession of real property is a sufficient legal estate therein to enable a party to maintain an action in this court to recover the possession of the same from an intruder.
The defendant then answered. The answer contains specific denials of sundry allegations of the complaint, and also two defenses, each of which is styled therein 'a further answer and defense,' although there is but one answer containing these denials and defenses. Comp. 1887, §§ 71, 72.
The first defense is that at and prior to the entry of the premises by Alexander the same was public land of the United States, and subject to entry under the homestead law, at Lakeview, Or.; that prior to his settlement on the premises Alexander had acquired a quarter section of public land under said law, in California, and was not entitled at the time of such entry and the issue of said final certificate to enter on or settle upon any of the public land under the homestead law; and that said entry and certificate are illegal and void,-- of all which the plaintiff had notice before the date of the conveyance from Alexander.
The second defense is that the officers of the land-office at Lakeview, Or., 'having been informed,' after the issue of the certificate to Alexander, that he had acquired a quarter section of land under the homestead law prior to his settlement on the premises, set aside and canceled said entry and certificate, and reported the facts to the commissioner of the general land-office, who thereupon canceled said entry and certificate on April 27, 1889; that said Alexander was duly notified of said 'proceeding' before said officers, and appeared and was heard therein; that about January 1, 1889, the defendant, 'with the advice and consent' of the register and receiver, settled on the premises with the intention of claiming the same under the homestead law, he being qualified so to do, and 'went into the peaceable possession of the same, and ever since has been and now is in possession of such land, as such settler and is entitled to remain in the possession thereof in accordance with the provisions of said law and the regulation of the interior department, and within the time allowed by law he offered to file his homestead application and perfect his entry' in the land-office at Lakeview, 'and has been instructed and advised by the commissioner of the general land-office to remain in possession of said land, as such settler, and that he was at the time of the commencement of this action, and ever since has been, and is now, in the possession of the land described in the complaint, under the authority and by the direction of the department of the interior and the commissioner of the general land-office,'-- of all which the plaintiff had notice at the time of the conveyance to him from Alexander. To these defenses a demurrer is interposed.
The second defense will be considered first. It admits,...
To continue reading
Request your trial
-
Caldwell v. Bush
...remedies and relief as he can obtain in the courts. (Smith v. Ewing, 23 F. 741 and cases cited; Cornelius v. Kessel, 128 U.S. 456; Wilson v. Fine, 40 F. 52; Davis v. Wiebold, 138 U.S.; Hardin Jordan, 140 id., 371.) The officials of the Land Department have persistently arrogated to themselv......
-
Headley v. Coffman
...Hawke, 115 U.S. 392; Carroll v. Safford, 3 How. [U. S.], 441; United States v. Freyberg, 32 F. 195; Wirth v. Branson, 98 U.S. 118; Wilson v. Fine, 40 F. 52; Stimson v. Clarke, 45 F. 760; Cornelius Kessel, 128 U.S. 461; Simmons v. Wagner, 101 U.S. 260; Sanford v. Sanford, 139 U.S. 642; Withe......
-
Phoenix Mut. Life Ins. Co. v. Brainard
...has no jurisdiction to cancel a final certificate issued by the land office, counsel cite only the federal case of Wilson v. Fine (C. C.) 40 F. 52, 5 L. R. A. 141, in which it is said that, if the government wishes to have certificate set aside for fraud, it must ask redelivery in the court......
-
American Mortg. Co. of Scotland v. Hopper
...that, under the decisions of the circuit court of the United States for the district of Oregon, in Smith v. Ewing, 23 F. 741, and Wilson v. Fine, 40 F. 52, a rule of property has been established which it is the of this court to adhere to upon the doctrine of stare decisis, and that the jud......