It is too late to urge in this Court stipulations between
parties not brought to the attention of the court below.
The value of the matter in dispute, if not stated in the record,
may, for the purpose of jurisdiction, be shown by affidavits.
The fact that a circuit judge, prior to his appointment, had
been counsel for one of the parties in matters not connected with
the case on trial, does not disqualify him from trying the
cause.
Page 156 U. S. 495
An objection that the receiver took part with the register on
the hearing and decision of a case in the land office cannot be
taken for the first time in this Court.
Taking all the facts together, it is quite clear that the
receiver and the register affirmatively found the fact of
abandonment.
The decision of the land office upon the questions involved in
this case was conclusive unless the charges of fraud and conspiracy
were sustained, and it is evident that the court below carefully
considered the evidence on these points.
When a plaintiff seeks to invalidate a patent of land by
averring misconduct on the part of officials in a contest case, a
complete record of the proceedings is relevant and important.
In the absence of fraud and imposition, the findings and
decisions of the land office cannot be reviewed as to the facts
involved.
In the District Court of the Second Judicial District of
Washington Territory, in April, 1887, Anthony P. Carr filed a bill
of complaint against W. H. Fife and others, including the executors
of Edward S. Smith, deceased, seeking to set aside a patent of the
United States to one Robert E. Sproul, issued on December 13, 1875,
granting certain lands of the United States, lying in the County of
Pierce, and to have the defendants, who derived their titles to
parts and parcels of said lands from the said Sproul, declared to
hold the same in trust for the said plaintiff, and that they be
required to execute conveyances thereof to the said plaintiff.
The defendants appeared and put in an answer and a cross-bill,
to which the plaintiff demurred. On August 7, 1888, the demurrer to
the answer was overruled and that to the cross-bill was sustained.
An examiner was appointed and evidence was put in, and on November
25, 1888, the cause was put down for hearing in the said District
Court of the Second Judicial District of Washington Territory, and
was submitted for decision on December 17, 1888. But before any
decision was rendered, the territory was admitted into the Union as
a state. It was thereupon stipulated that the cause should be
submitted to the Superior Court of Pierce County, State of
Washington, on the pleadings, evidence, and briefs of counsel.
Before the said Superior Court of Pierce County took any action,
the cause was, on May 26, 1890, at the instance of the defendants,
under the provisions of section 23 of the Act
Page 156 U. S. 496
approved February 22, 1889, 25 Stat. 683, c. 180, pp. 676, 683,
transferred to the Circuit Court of the United States for the
District of Washington. On July 28, 1890, the plaintiff in the
action moved the circuit court to remand the cause to the Superior
Court of Pierce County, which motion was overruled, as was likewise
a subsequent motion or petition to have the cause tried by the
circuit judge, or, if he were unable to sit, by the district judge
for the District of Oregon. On January 28, 1891, a final decree was
entered dismissing the bill. A motion was made February 10, 1891,
to vacate the decree and remand the cause to the Superior Court of
Pierce County upon the alleged grounds that the same had been
improperly removed and that the circuit court had not acquired
jurisdiction thereof, because it had not been made to appear at the
time of such removal that the matter in dispute exceeded, exclusive
of interest and costs, the sum of two thousand dollars. The circuit
court permitted affidavits to be filed on behalf of the defendants,
averring that the matter in dispute largely exceeded the amount
necessary to give the court jurisdiction, and then overruled the
motion to vacate the decree and remand the cause. An appeal was
then allowed to this Court.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The ninth specification of error complains of the refusal of the
court below to remand the cause to the Superior Court of Pierce
County upon the showing that, after the admission of the State of
Washington, it had been stipulated by the counsel of the respective
parties that said cause might be tried in said superior court. But
the record shows that the reasons assigned in the court below for
the motion to remand did not
Page 156 U. S. 497
mention such a stipulation, and it is out of time and place to
urge it in this Court.
The tenth assignment asserts want of jurisdiction in the circuit
court at the time of entering the final decree, because the record
did not contain a specific allegation that the matter in dispute
exceeded the sum of two thousand dollars. If the record were
defective in the particular mentioned, we think that the amendment
by affidavits, disclosing that the value of the matter in dispute
largely exceeded the jurisdictional amount, cured the defect. The
procedure would have been more formal if the decree had been set
aside and renewed after the amendment had been made, but the term
at which the decree was entered had not ended, so that the court
still had power to permit an amendment of the record, and we do not
feel compelled to reverse the decree because of the manner in which
the court below exercised its power of amendment. Besides, it is
not clear that the record was defective in the respect claimed. The
suit was not one to recover a sum of money, but to decide a
question of title to a considerable tract of land, and the
plaintiff put in evidence in support of his claim -- and, of
course, before the decree was entered -- tending to show that the
land was worth more than ten thousand dollars, and if it be
competent, as has always been held, to show by
ex parte
affidavits the amount of the value of the matter in dispute, it
would seem that evidence to the same effect, deliberately put in by
the very party now suggesting the defect, should be regarded as
sufficient. It is also observable that the plaintiff, in his
petition for an appeal, averred that the value of the property in
dispute exceeded the sum of ten thousand dollars, and while
doubtless that allegation, made for the purpose of showing that
this Court has jurisdiction on appeal, would not, of itself, supply
the defect in the record of the circuit court, it is convincing
that in point of fact the land in dispute was worth more than two
thousand dollars, and that the plaintiff was not injured by the
action of the court in permitting the record to be amended by
affidavits supplying the formal averments of value.
Another error assigned is to the refusal of the court to
Page 156 U. S. 498
direct that the cause should be tried by the Honorable Lorenzo
Sawyer, circuit judge, or, in the event that it be found
inconvenient for the circuit judge to try the cause, that the same
be certified to the adjacent circuit of Oregon. The basis of this
motion was an affidavit made by the plaintiff alleging that the
district judge of the District of Washington, before whom the cause
was about to come on for argument, had been, prior to his
appointment as such judge, of counsel for some of the
defendants.
The learned judge, in refusing the motion, stated that the
motion was put upon the statement that he had been employed as in
attorney by some of the defendants before his appointment to the
office in matters not connected with the case, and that, as he was
the only judge then present and able to try the cause, he was of
opinion that it was his duty to do so.
Understanding then, as we do, that the ground of objection was
that the judge had been, prior to his appointment, attorney for
some of the defendants in matters not connected with the present
case, we do not perceive that he was disqualified from trying the
cause. In such a state of facts, the judge must be permitted to
decide for himself whether it was improper for him to sit in trial
of the suit.
This was a proceeding in equity whereby Anthony P. Carr sought
to have the defendants, who derived their titles to certain lands
from Robert E. Sproul, to whom had been granted, in 1875, a patent
for said lands, declared trustees for his benefit on the ground
that the patent had been improperly issued, and the substantial
question in the case is as to what effect ought to be given to the
proceedings and decision of the land office.
Appellant's first contention is that the tribunal that tried the
case between Carr and Sproul was illegal in respect that, instead
of the register acting alone, the receiver took part in the hearing
and decision. It is provided in section 2297, Revised Statutes,
that proof of abandonment is to be made out to the satisfaction of
the register of the land office, and the record discloses that the
evidence in the present case on the question of abandonment was put
in before the register and the receiver,
Page 156 U. S. 499
and that the finding was signed by both officers. No objection,
however, seems to have been made while the hearing was in progress
before them, nor was the participation of the receiver made a
ground of exception in the appeal to the Commissioner of the
General Land Office or in the further appeal to the Secretary of
the Interior. Nor was such participation complained of by the
plaintiff in his bill of complaint or called to the attention of
the court below. We do not consider it necessary to decide whether,
in such an inquiry in the land office, the receiver may validly
take part, because we think an objection on that ground is made too
late in this Court.
The next position taken by the appellant is that the register
and receiver went outside of their jurisdiction, which it is
claimed was restricted to the question of abandonment, and
recommended the cancellation of Carr's entry on other grounds than
that of abandonment.
An examination of the proceedings in the land office does not
sustain this position. They began with Sproul's application for a
contest, in which Carr's abandonment of the tract is alleged. This
was followed by the notice from the register and receiver to Carr
that such a contest had been initiated, and fixing a time and place
for him to attend and "furnish testimony concerning said alleged
abandonment," and the record discloses that a large amount of
evidence was put in on that issue.
It is true that the register and receiver, in their written
decision, made on August 18, 1873. wherein they decided in favor of
the contestant, Sproul, used the following language:
"From these occasional visits to the claim we can but draw the
conclusion that said A. P. Carr did not wholly abandon his said
claim, but we are more strongly of the opinion that the utter
disregard of the spirit of this beneficent law, which gives to the
poor man, upon easy and reasonable terms, what he could not
otherwise obtain, would, in equity, be sufficient ground for
cancellation of the homestead entry No. 1,368, of A. P. Carr."
Standing alone, this language would seem to give some color to
the contention that the officers had failed to find the fact
Page 156 U. S. 500
of abandonment, and had placed their decision on merely
equitable grounds. But, when the statement quoted is read in
connection with the entire report or decision, it is quite plain
that the fact of abandonment was affirmatively found. The language
criticized was elicited by evidence adduced by Carr by which it was
sought to show continuous possession, but which the officers
regarded and found to rather show a want of good faith on the
claimant's part -- a mere pretended compliance with the law -- and
hence the expressions used were really the very opposite, in their
actual meaning, to that now attributed to them. In effect, it was
said that even if, instead of exacting strict legal proof by Carr
of his compliance with the law, the case were to be equitably
considered, the conclusion must still be that his entry should be
cancelled.
This finding by the register and the receiver was approved by
the Commissioner of the General Land Office, and subsequently by
the acting Secretary of the Interior.
Finally it is contended that the court below erred in not going
behind the decision of the Land Department, and in not giving
effect to complainant's evidence as if the controversy were wholly
independent of that decision.
An inspection of the opinion of the court below, however,
discloses that the judge, while properly holding that the decision
of the land office was conclusive unless the charges of conspiracy
and fraud contained in the appellant's bill were sustained, yet
considered the evidence with evident care.
Objection was made in the court below to the admission in
evidence of the record in the case of
Anthony P. Carr v. The
Tacoma Land Company as incompetent and irrelevant. As the
contest in that case was about a different piece of land, it is not
easy to see what purpose was served by putting the record in
evidence, apparently to base thereon a cross-examination of the
appellant going to show that his place of residence was not
consistent with his claim in this case. But it does not appear that
the court deemed this evidence as having the least importance. It
is not even referred to in the opinion, and its admission cannot,
in any point of view, be deemed ground for a reversal of the decree
below.
Page 156 U. S. 501
So too we are unable to see that there was error in admitting
the record of the proceedings in the contest in the land office.
The effort is made to sustain this objection by citing
Smelting
Co. v. Kemp, 104 U. S. 640.
But in that case, the offer was to show, in an action at law, a
record of the proceedings in the land office in order to impeach
the patent, and the ruling was that, as against a patent regular
upon its face, and in an action at law, such an offer was
inadmissible. But here, when the plaintiff was endeavoring, by a
bill in equity, to invalidate a patent by averring misconduct on
the part of the officials in the contest case, a complete record of
their proceedings was not only relevant, but of the utmost
importance if the incidents attending the contest in the land
office were to be at all a subject of inquiry.
We cannot undertake to review the evidence in detail, but we
have read it in the light afforded by an able brief filed on behalf
of the appellant, and have been unable to find any satisfactory
proof of fraud and imposition but for which the appellant would
have been entitled to himself receive the patent.
Nor can we accede to the argument that the Land Department fell
into errors of law by disregarding the appellant's evidence of the
nature of his entry, and of his character as a soldier applicant.
The question really was whether or not he had abandoned the tract
of land and had failed to comply with the directions of the law,
and that question was found against the appellant.
Of course, in the absence of fraud and imposition, the findings
and decision of the land office cannot be reviewed as to the facts
involved, and the court below would not have been warranted in
interfering with the title of the patentee and his vendees.
Lee
v. Johnson, 116 U. S. 48.
These views lead to the conclusion reached by the court below,
and render it unnecessary to consider the defense of the statute of
limitations discussed in the appellees' brief.
The decree of the circuit court is
Affirmed.
