If, through inadvertence and mistake, a wrong description is
placed in a conveyance of real estate by an individual, a court of
equity would have jurisdiction to interfere and restore to the
party the title which he never intended to convey, and it has a
like jurisdiction when a wrong description from a like cause gets
into a patent of public land.
If the allegations of a bill point to fraud and wrong, and
equally to inadvertence and mistake, and the latter be shown, the
bill is sustainable, although the former charge may not be fully
established.
The provision in the second section of the Act of June 16, 1880,
21 Stat. 287, c. 245, requiring the approval of the Secretary of
the Interior to the act of the state authorities of Nevada in
selecting lands under the grant made by that act, while it did not
vest in him an arbitrary authority, to be exercised at his
discretion, empowered him to withhold his approval when it became
necessary to do so in order to prevent such a monstrous injustice
as was sought to be accomplished by these proceedings.
On June 16, 1880, Congress passed an act, of which the following
are the first two sections:
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled that there
be, and are hereby, granted to the Nevada two million acres of land
in said state in lieu of the sixteenth and thirty-sixth sections of
land heretofore granted to the Nevada by the United States,
provided that the title of the state and its grantees to
such sixteenth and thirty-sixth sections as may have been sold or
disposed of by said state prior to the passage of this act shall
not be changed or vitiated in consequence of or by virtue of this
act."
"SEC. 2. The lands herein granted shall be selected by the state
authorities of said state from any unappropriated nonmineral public
land in said state, in quantities not less than the smallest legal
subdivision, and when selected in conformity with the terms of this
act, the same shall be duly certified to said state by the
Commissioner of the General
Page 138 U. S. 515
Land Office, and approved by the Secretary of the Interior."
21 Stat. 287, c. 245.
On May 3, 1883, the lands in controversy were certified to the
State of Nevada under this act. This certification was based on an
application by the state, formally executed July 29, 1882. On May
20, 1882, the appellant applied to the proper state officers to
purchase these lands. On February 2, 1884, in pursuance of this
application, a contract was entered into between the state and the
appellant for the sale to him of the lands in controversy, he at
the time, paying one-fifth of the purchase money and contracting to
pay the balance in subsequent annual installments. On December 18,
1884, this bill was filed by the United States in the Circuit Court
for the District of Nevada against the appellant alone. Generally
speaking, the scope of the allegations in the bill is that the
lands were improperly certified to the state; that in equity it had
no title, and its contract with the appellant transferred nothing
to him, and the prayer was for the cancellation of the contract
between the appellant and the State of Nevada, and an adjudication
that the appellant had no title or interest in such lands. On
November 26, 1886, a decree was entered (30 F. 309) by which the
title of appellant in the lands was divested and he directed to
surrender up to the State of Nevada for cancellation all contracts
or agreements he had with that state for these lands. From such
decree appellant appealed to this Court.
MR. JUSTICE BREWER, after stating the facts as above, delivered
the opinion of the Court.
The first contention of appellant is that this action could not
be maintained because the State of Nevada was not made party, it
holding the legal title; second, that the circuit court erred in
finding that there was fraud or wrong by which the title was passed
to the State of Nevada, and
Page 138 U. S. 516
third that even if there were fraud or wrong in this matter, the
outcome of the proceedings was the necessary one, and therefore the
bill should not have been sustained.
With respect to the first contention, it cannot be doubted that
the certification operated to transfer the legal title to the
state,
Frasher v. O'Connor, 115 U.
S. 102, nor that the contract between the state and
appellant passed to him the equitable title, the legal title being
retained by the state simply as security for the unpaid part of the
purchase money. The proposition therefore is that where there are
outstanding two interests or titles, held by different parties, the
real owner cannot proceed against either without joining the other;
that only one action can be maintained to divest these parties of
their separate titles, and that to that action both adverse holders
must be parties. The proposition is not sound. A court of equity
has jurisdiction to divest either one of the adverse holders of his
title in a separate action. Doubtless the court has power, when a
separate action is instituted against one, to require that the
other party be brought into the suit if it appears necessary to
prevent wrong and injury to either party and to thus fully
determine the title in one action; but such right does not oust the
court of jurisdiction of the separate action against either. It has
jurisdiction of separate actions against each of the adverse
holders, and there is no legal compulsion, as a matter of
jurisdictional necessity, to the joinder of both parties as
defendants in one action. There are special reasons why this rule
should be recognized in this case. It may be that the circuit court
would not have jurisdiction of an action again the state; that an
action against a state on behalf of the United States can be
maintainable only in this Court, and that when brought in this
Court, no other party than the state can be made defendant. We do
not decide that these things are so, but suggest the difficulty
which must have presented itself to the counsel for the government,
and which justifies a separate suit against the holder of the
equitable title. The State of Nevada might have intervened. It did
not, doubtless because it felt it had no real interest. It was no
intentional party to any wrong upon the
Page 138 U. S. 517
general government. If its agency had been used by the wrongdoer
to obtain title from the general government; if, conscious of no
wrong on its part, it had obtained from the general government the
legal title, and conveyed it away to the alleged wrongdoer, it
might justly say that it had no interest in the controversy, and
that it would leave to the determination of the courts the question
of right between the government and the alleged wrongdoer, and
conform its subsequent action to that determination. That certainly
is the dignified and proper course to be pursued by a state which
is charged to have been the innocent instrumentality and agent by
which a title to real estate has been wrongfully obtained from the
general government. The jurisdiction of the circuit court over this
bill was properly sustained.
The second contention is that the court erred in finding that
there was fraud or wrong by which the title was taken away from the
general government. The allegations of the bill are of fraud and
wrong, but they also show inadvertence and mistake in the
certification to the state, and it cannot be doubted that
inadvertence and mistake are, equally with fraud and wrong, grounds
for judicial interference to divest a title acquired thereby. This
is equally true in transactions between individuals and in those
between the government and its patentee. If, through inadvertence
and mistake, a wrong description is placed in a deed by an
individual, and property not intended to be conveyed is conveyed,
can there be any doubt of the jurisdiction of a court of equity to
interfere and restore to the party the title which he never
intended to convey? So of any other inadvertence and mistake, vital
in its nature, by which a title is conveyed when it ought not to
have been conveyed. The facts and proceedings attending this
transfer of title are fully disclosed in the bill. They point to
fraud and wrong, and equally to inadvertence and mistake, and if
the latter be shown, the bill is sustainable, although the former
charge against the defendant may not have been fully
established.
For satisfactory answer to this inquiry, a fuller statement of
facts is necessary. On May 19, 1879, defendant made in the
Page 138 U. S. 518
proper land office of the United States a desert land entry for
240 acres, including therein the lands in controversy. 19 Stat.
377. On July 26, 1879, he conveyed to the New Philadelphia Silver
Mining Company, for the sum of $5,000, eighty acres thereof,
described as the east 1/2 of southeast 1/4, section 33, township 8,
range 50 east, Nye County, Nevada. The conveyance was with this
warranty:
"And the party of the first part agrees to and with the party of
the second part that he has full right and power to sell and convey
the said premises and water rights, and that they are now free from
all encumbrances, sales, or mortgages."
Within the succeeding year the grantee erected a ten-stamp
quartz-mill on the premises at the expense of about $58,000.
Becoming embarrassed, this eighty acres, with improvements, passed
by sheriff's and receiver's deeds to Matthiessen and Ward, the
title thus passing finally by the 16th of December, 1881. The
consideration of $5,000 named in the original deed was paid to
Williams. On May 20, 1882, he executed papers for the
relinquishment to the government of his desert land entry, and at
the same time made application to the state for the purchase of
these lands as agricultural lands. At his instance, the state, on
July 29, 1882, applied to the government for a certification of
these lands. On August 12, 1882, by letter from the Land
Department, cancellation of the desert land entry was made on the
books of the local land office, and subsequently, as stated, in
May, 1883, the lands were certified to the state, and thereafter
the application of Williams for purchase from the state was
accepted, and the contract entered into.
Further, it appears that on June 20, 1881, the receiver of the
Philadelphia Company wrote to the Commissioner of the Land Office,
giving notice of the company's interest in these lands and asking
instructions as to steps necessary to protect its title. This
information was followed, on February 10, 1882, by interview and
communication to the department from the counsel of Matthiessen and
Ward. On April 14, 1882, the Commissioner answered the inquiry of
the receiver, informing
Page 138 U. S. 519
him that desert land claims were not assignable. On May 23d he
advised Ward that there was no evidence in his office showing a
relinquishment by Williams of the desert land entry. In August,
1882, the land register of Nevada, replying to an inquiry of
Matthiessen and Ward, said:
"Mr. Williams informed me that he would try and procure the
cancellation of his desert land entry. We have received no notice
as yet of the cancellation of said entry."
As, weeks before, Williams had filed relinquishment papers in
that office, and the matter of cancellation, having been referred
to Washington, was waiting response, this communication was
obviously deceptive, and suggests conspiracy between the register
and Williams. So obvious is this that on September 11, 1882, the
Commissioner of the General Land Office wrote to the register for
an explanation. In that letter, after referring to his information
to the agent of Matthiessen and Ward, as above quoted, he adds:
"Upon a cursory examination of the matter, it would seem that
the information, if furnished by you as aforesaid, was not in
accordance with the facts in the case and misleading in result, and
therefore calculated to create suspicion in the public mind as to
the honest administration of your office in matters coming before
you for official action. Large and valuable interests were affected
by the relinquishment of Williams, and the company should have been
notified when it was filed in your office, or at all events when it
applied to you through its agent for information. Please explain
the matter at once."
On September 6, 1882, an application was made on behalf of
Matthiessen and Ward for reinstatement of the desert land entry,
and a protest against embracing in the state's selection the eighty
acres, heretofore referred to, conveyed by Williams to the
Philadelphia Company. This application for reinstatement of the
desert land entry was denied by the Land Commissioner on February
21, 1883. The application by the state for this land was at the
instance of the appellant, and the application was included in a
list known as "List Number 24." On January 8, 1883, Mathiessen and
Ward made, in due form, an application for the five acres upon
which the buildings were situated, as a mill site. The application
was
Page 138 U. S. 520
denied by the land office in Nevada on the ground that the land
was embraced in the selection theretofore made by the State of
Nevada. Appeal was made to the Land Office at Washington, and the
appeal papers were received there January 18, 1883. On January 23d
Curtis & Burdett, attorneys for Matthiessen and Ward, appeared
in the Land Office at Washington and asked to be advised of any
action. Immediately thereafter the officers in the Land Department
noted, in pencil, within brackets, on list 24, against the land in
controversy, these words, "mill site." The effect of this
annotation was to suspend action in respect to these lands until
the adverse claim had been investigated and removed. Thereupon the
controversy as to the right to select these lands proceeded in the
department. While this controversy was pending in the department
and undetermined, list 24 was presented for approval, and the
annotation of the words "mill site" having been by some person
erased, and there appearing on the face of the list no controversy
as to any of the lands, the certificate was made in May, as
heretofore stated. The controversy proceeded in regular order until
December, 1883, without any suspicion on the part of the
Commissioner of the Land Office that any certification of title had
been made to any of these lands, or that the controversy was not
still open for adjudication. In December, 1883, on discovery of
this mistake by the Land Commissioner, he telegraphed to the
Governor of Nevada to return the approved list, which application
was declined, by telegram, on the advice of the attorney general of
the state. On the 14th of December, 1883, the Secretary of the
Interior telegraphed to the Governor of Nevada, as follows:
"[Received at Carson, Dec. 14, 4:03 P.M. Dated Washington D.C.
___ 14, 1883.]"
"To Governor of Nevada,
Carson City, Nev.:"
"Has land mentioned in dispatch of commissioner of 11th instant
been sold and deeded, or either? If so, to whom? Unless the list
can be returned and corrected, I desire to have proceedings
commenced immediately to set aside the certification."
"H. M. TELLER,
Secretary"
Page 138 U. S. 521
On the same day, the appellant telegraphed as follows:
"[Received at Carson, December 14, 4:46 P.M. Dated Washington,
December 14, 1883.]"
"To Governor Jewett W. Adams or W. M. Garrard:"
"Have deed for my state land claim executed immediately. Give
Harry Day money, if he has not got it. Will remit from Hot Creek.
Don't delay. Answer."
"Jos. T. Williams"
On the 15th of December, the Secretary of Interior telegraphed
to the state register as follows:
"Tract inadvertently certified while adverse claim was pending
and undecided. Much embarrassment will result to department if list
be not returned as requested."
On the same day, he received this answer:
"Carson, Nev.,
December 15, 1883"
"To H. M. Teller,
Washington, D.C.:"
"The land referred to is applied for and contracted to J. T.
Williams, but no patent is yet issued."
"J. W. Adams,
Governor"
These facts make it clear that when list 24 was presented to the
department, and it had received notice of an adverse claim as to
these lands, the ordinary annotation was made on the list opposite
to these lands to indicate an adverse claim, and that pending the
adjudication of the merits of that claim no certification would
have been made; that by somebody's act (and the record does not
disclose the party), this customary departmental entry of notice
was rubbed out, and that thereafter the list, passing through the
hands of the various officers of the department, with every mark of
approval from the various subordinate officers, and not challenged
as to this controversy, was inadvertently, unintentionally, and
through mistake certified to the State of Nevada. Can there be any
doubt that this land was certified through inadvertence and
Page 138 U. S. 522
mistake, and that the Land Department did not intend to certify
it to the state, or approve the selection made by the state until
after the determination of the pending controversy? Who made the
erasure cannot be, from the testimony, determined. The defendant
and his attorney in Washington City each testify that he did not
make it or know of its being made; yet who would make such an
erasure save one interested in having the fact of the contest
removed from notice? The suggestion made by counsel for appellant
that Matthiessen and Ward caused this to be done in order to lay
the foundation for this bill, when in fact their controversy in the
department had not been adjudicated as to the right of the state to
make this selection, is so puerile as to intensify the suggestion
against the appellant. That Williams had some information from
within the department is evident from the fact that on the very day
the secretary telegraphed to the Governor of Nevada, he telegraphed
insisting upon immediate execution of the deed from the state -- a
telegram received at the capital of the state forty-three minutes
after that of the Secretary. We do at impugn the truthfulness of
the appellant or his counsel in the testimony given by each "that
he neither made or knew of the making of this obliteration;" yet we
cannot but be impressed with the conviction that there was someone
in the department employed to look after appellant's interests in
this controversy, and who, without special direction or authority,
assumed to do that which he thought, and which would apparently,
promote his employer's interests, to-wit, the erasure from this
list of any notice of contest or adverse claim. Of course, if fraud
was done by one employed by appellant, he, though ignorant, must
bear the consequences of that fraud. We do not doubt what the
verdict of a jury would be, as to a charge of fraud, under these
circumstances; but we do not care to place our decision upon this
ground. We rest it upon the incontrovertible fact that through
inadvertence and mistake, this land was certified to the state.
This brings us to the final contention: that if there had been
no erasure, that if the contest had been had, the lands must
inevitably have been certified to the State of Nevada,
Page 138 U. S. 523
because they were, within the description of the act,
"unappropriated nonmineral, public land" selected by the state;
that the desert land entry by Williams in 1879 gave to him no right
which he could sell or transfer; that therefore the deed from him
to the Philadelphia Company passed nothing as against the
government; that, having failed to reclaim the land within the time
prescribed, his right in the land ceased, and his cancellation of
his desert land entry was a mere matter of form to clear the face
of the record; that at the time of the selection and application by
the state, there was no legal adverse claim; that therefore the
state had a right to select it; that, having made such selection,
it was the duty of the department to certify the land and thus
transmit the legal title, and that the government pays no attention
to private disputes between parties who have transactions in
respect to public lands before it parts with its title and before
any right is vested in either of the disputing parties.
In the main, we do not doubt these propositions of law; but
there are certain equitable considerations which the department is
authorized to recognize, and, when recognized, no court will ever
disturb its action. Consider the facts in this light: Williams had
made a desert land entry. His proposition by that entry was to
reclaim this land by irrigation. He conveyed by deed a portion of
it to the Philadelphia Company, warranting that he had perfect
title and right to convey, and receiving $5,000 for this
conveyance. On the faith of it, the company expends $58,000 in
improvements. The time for reclamation passes, and he has failed in
his implied duty to the government. With a view to secure to
himself a title which he has once conveyed with warranty, he
schemes to surrender his desert land entry for cancellation and
induce the state to select and obtain title to the lands as
agricultural nonmineral lands, and then buy the title thus obtained
by the state. When the department is advised of these facts, it
declines to certify the title to the state. If all questions of
jurisdiction and procedure were removed, would any court issue a
mandamus to compel the officers of the Land Department to certify
those lands to
Page 138 U. S. 524
the state? Would not the equity developed by these facts forbid
the court to issue such an order? The certification after selection
by the state is to be approved by the Secretary of the Interior.
This is no mere formal act. It gives to him no mere arbitrary
discretion, but it does give power to prevent such a monstrous
injustice as was sought to be accomplished by these proceedings. It
gives the power to the Secretary to deny this application of the
state, and refuse to approve its selection, and hold the title in
the general government until, within the limits of existing law or
by special act of Congress, a party who, misinformed and
misunderstanding its rights, has placed such large improvements on
the property, shall be enabled to obtain title from the
government.
We would not be misunderstood in respect to this matter. We do
not mean to imply that any arbitrary discretion is vested in the
Secretary, but we hold that the statute requiring approval by the
Secretary of the Interior was intended to vest a discretion in him
by which wrongs like this could be righted and equitable
considerations, so significant and impressive as this, given full
force. It is obvious, it is common knowledge, that in the
administration of such large and varied interests as are entrusted
to the Land Department, matters not foreseen, equities not
anticipated, and which are therefore not provided for by express
statute, may sometimes arise, and therefore that the Secretary of
the Interior is given that superintending and supervising power
which will enable him, in the face of these unexpected
contingencies, to do justice. The decision of the circuit court is
right, and must be
Affirmed.
MR. JUSTICE GRAY was not present at the argument of this case,
and took no part in its decision.