Where a commutation entry made in good faith after the passage
of the Act of March 3, 1891, 26 Stat. 1098, was rightful, save for
the fact that it was premature, the Act of June 3, 1896, 29 Stat.
197, does away with that objection and confirms the entry, and the
right to such confirmation is not destroyed by anything that the
entryman may have done in subsequent efforts to protect his
title.
This was a suit in equity commenced in the circuit court of
Douglas County, Wisconsin, by Warren E. McCord, to obtain a decree
adjudging the defendant, now plaintiff in error, John F. Hill, the
holder of the legal title to the northwest quarter of section
seventeen, in township forty-eight north, of range eight west, in
Bayfield County, Wisconsin, in trust for the plaintiff. A demurrer
to an amended complaint was sustained by the circuit court, but
this ruling was reversed by the supreme court of the state. 111
Wis. 499. Thereafter an answer was filed, a hearing had, resulting
in a decree for the plaintiff, which was affirmed by the supreme
court, 117 Wis. 306, and thence the case was brought here on
error.
The following facts were found by the trial court, and the
findings were sustained by the supreme court: one Philip W. Jacobus
made an actual settlement on the land in controversy on January 28,
1891, and actually established his residence thereon February 4.
The land was not opened for entry until February 23, 1891, and on
that day Jacobus made application at the local land office to enter
it as a homestead. On the same day, Hill filed a soldier's
declaratory statement for the same tract. A contest was had before
the local land officers, resulting in a decision in favor of
Jacobus. On appeal
Page 195 U. S. 396
to the Commissioner of the General Land Office, this decision
was affirmed. Hill's declaratory statement was cancelled, and the
entry of Jacobus allowed on July 6, 1892. On September 20, 1892,
Jacobus commuted his homestead entry, making and filing in good
faith due, regular, and truthful proofs of settlement, occupation,
and improvements, paying $400, and receiving a receiver's receipt
and a certificate of entry certifying that he had purchased the
land, and made full payment, and was entitled, on presentation of
the certificate to the Commissioner of the General Land Office, to
receive a patent.
On December 27, 1892, McCord and one Daniel McLeod purchased the
land in good faith of Jacobus, paying him the sum of $4,250, and
receiving a warranty deed. The negotiations between these grantees
and Jacobus commenced on or about December 17, 1892, and prior to
that time they had no interest in the land, and had no negotiations
with him. While negotiating with Jacobus, they asked Hill, at the
time residing on a part of the tract, whether he had any claim upon
the land, and whether Jacobus had good title thereto, and Hill then
and there said to them that he had been fairly beaten in his
contest with Jacobus, that he had no claim, and that, if McCord and
McLeod would buy the tract, he would make no claim. At that time,
Hill knew that they were looking at the land with a view of
purchasing it from Jacobus, and that the inquiry was made of him
with reference to that purchase, and they did in fact rely upon
Hill's statement, and purchased the land and paid for the same by
reason thereof.
A few days after the deed, and on January 4, 1893, for the
purpose of putting the understanding between themselves and Hill in
writing, the grantees had this instrument executed and acknowledged
by Hill:
"For the purpose of making a settlement with John F. Hill, and
his relinquishment on the N.W. 1/4 of section 17, township 48,
range 8 W., we hereby make him a present of a certain lot of logs,
now skidded on said land, and give him permission till the 1st day
of May, A.D. 1893, in which to enter on said
Page 195 U. S. 397
land to remove said logs, and to occupy the house on said land,
and to remain on said land until that date, but not thereafter.
Said logs amount to about 30,000 feet, and he agrees not to cut,
nor allow any of his men to cut or destroy, any other timber. And
in consideration of said logs, I, John F. Hill, being duly sworn,
on oath, says that he is the man who made a soldier's application
for said N.W. 1/4 of 17-48-8 W., and I make this affidavit for the
purpose of relinquishing all my right, title, and interest in and
to said claim, which I do unto the United States. Signed, sealed,
and delivered and agreed upon this 4th day of January, A.D. 1893.
Daniel McLeod. In presence of--"
"W. E. McCord [Seal.]"
"W. H. Packard"
"John F. Hill [Seal.]"
"Tracy Lyon"
Prior to the commutation, and on March 3, 1891, Congress had
passed an act amending section 2301 of the Revised Statutes so as
to read as follows:
"Nothing in this chapter shall be so construed as to prevent any
person who shall hereafter avail himself of the benefits of section
2289 from paying the minimum price for the quantity of land so
entered at any time after the expiration of fourteen calendar
months from the date of such entry, and obtaining a patent
therefor, upon making proof of settlement and of residence and
cultivation for such period of fourteen months."
26 Stat. 1098.
Neither Jacobus nor the land officers had any actual knowledge
or information of this enactment at the time of the commutation. On
May 15, 1893, the Assistant Commissioner of the General Land Office
of the United States, having had his attention called to the act,
notified Jacobus that he must furnish supplemental proofs showing
residence and cultivation for a period of fourteen months
subsequent to July 6, 1892, together with an affidavit that he had
not alienated the land. Of course, compliance with this was
impossible, for Jacobus had already made a conveyance. On September
1,
Page 195 U. S. 398
1893, McCord and McLeod, with their wives, made to Jacobus a
deed of conveyance of the land for an expressed consideration of
$4,300, and Jacobus at the same time executed to them a mortgage
upon the lands to secure the payment of the purchase money. On or
about September 12, 1893, Jacobus caused to be made and filed in
the local land office, in response to the order of supplemental
proofs, certain affidavits and proofs from which it appeared that
the land was conveyed to McCord and McLeod and reconveyed, as
hereinbefore stated; that Jacobus retained two acres of the land,
and shortly after the sale of the said premises, and on or about
February 20, 1893, he again went upon the land, and from that time
up to the time of the filing of the affidavits continued to reside
upon and improve the land. It did not appear that the purpose of
the reconveyance and the return of Jacobus to the land was to
obtain a title for the benefit of McCord and McLeod.
On or about September 30, 1893, Hill filed in the local land
office contest affidavits and objections to the receiving of said
offered supplemental proofs. A hearing was had upon this contest,
and a large number of witnesses sworn. On August 9, 1894, the local
land officers decided the contest in favor of Hill and filed an
opinion in which they held that the residence of Jacobus up to the
time of the sale and conveyance to McCord and McLeod in December,
1892, was fairly satisfactory, but that his residence after the
sale and conveyance was for the sole purpose of enabling him to
make proof to secure title for them, and that the land was
reconveyed to him for that purpose alone. On appeal to the
Commissioner of the General Land Office, the findings of the local
land officers were affirmed. On further appeal to the Secretary of
the Interior, the prior decisions were, on April 28, 1896, affirmed
without any restatement of facts. On June 3, 1896, Congress passed
an act containing the following provisions (29 Stat.197):
"That whenever it shall appear to the Commissioner of the
General Land Office that an error has heretofore been made by the
officers of any local land office in receiving premature
Page 195 U. S. 399
commutation proofs under the homestead laws, and that there was
no fraud practiced by the entryman in making such proofs, and final
payment has been made and a final certificate of entry has been
issued to the entryman, and that there are no adverse claimants to
the land described in the certificates of entry, whose rights
originated prior to making such final proofs, and that no other
reason why the title should not vest in the entryman exists except
that the commutation was made less than fourteen months from the
date of the homestead settlement, and that there was at least six
months' actual residence in good faith by the homestead entryman on
the land prior to such commutation, such certificates of entry
shall be in all things confirmed to the entryman, his heirs and
legal representatives, as of the date of such final certificate of
entry, and a patent issue thereon, and the title so patented shall
inure to the benefit of any grantee or transferee in good faith of
such entryman subsequent to the date of such final certificate;
Provided, That this act shall not apply to commutation and
homestead entries on which final certificates have been issued, and
which have heretofore been cancelled, when the lands made vacant by
such cancellation have been reentered under the homestead act."
"SEC. 2. That all commutations of homestead entries shall be
allowed after the expiration of fourteen months from date of
settlement."
Thereupon Jacobus made a motion before the Secretary of the
Interior for a review of the decision of April 28, 1896, and also
to confirm his entry under the authority of said Act of June, 1896,
which motions were denied. A patent was subsequently issued to
Hill.
Page 195 U. S. 400
MR. JUSTICE BREWER delivered the opinion of the Court.
There are two well settled rules of decision, invoked
respectively by the parties. One, that findings of fact made by the
Land Department in the progress of a contest before it are
conclusive upon the courts; the other, that questions of fact
decided by a state court are not subject to review by this Court in
proceedings on error.
Upon the record, these questions of fact and law appear: First.
Was the original entry allowed to Jacobus on July 6, 1892,
rightful? In other words, was his evidence of settlement,
occupation, and good faith true, and, if so, did it entitle him to
priority over Hill, his contestant? Second. If that entry was
valid, was the commutation entry made on September 20, 1892,
illegal? Third. If so, was the defect which invalidated it subject
to removal under the Act of June 3, 1896? Fourth. If removable, was
there anything in the conduct of Jacobus or his grantees after the
original entry to prevent the removal?
With reference to the first question, it appears that the
original entry to Jacobus followed a contest between himself and
Hill. In that contest, testimony was taken before the local land
officers upon the question whether Jacobus had performed the acts
required of a settler upon public lands, and, upon a review, the
Commissioner of the General Land Office, on April 29, 1892, found
in favor of his settlement, residence, and improvements and allowed
the entry. No appeal was taken from this decision, and, if nothing
else appeared, the findings would obviously be conclusive in the
courts as between Jacobus and Hill. It is undoubtedly true that,
until the legal title has passed from the government, proceedings
in the land office are
in fieri, and a question, whether
of fact or law, may be reopened for consideration.
Michigan
Land & Lumber Co. v. Rust, 168 U.
S. 589,
168 U. S. 592,
and cases cited. It is insisted that the validity of the original
entry was relitigated
Page 195 U. S. 401
in the land office in pursuance of the contest made by hill in
October, 1893, and a different conclusion reached. While the power
of reexamination is not to be doubted, yet a decision upon a
question of fact, once made in a special proceeding finally
terminated, should not be regarded as overthrown by findings in a
subsequent proceeding in the Department unless it appears that
those findings directly overrule, or are necessarily inconsistent
with, the prior decision. The application of Hill, in 1893, to
contest the entry of Jacobus, charged as a basis of contest that
Jacobus never settled on the land in good faith, but for the
purpose of speculation; that he did not reside on the land during
the next six months preceding the making of his final proof, and
that he had sold the land to one W. E. McCord. A hearing was had
upon this contest before the local land officers, and quite a
volume of testimony taken. Their decision was adverse to Jacobus.
It was affirmed by the Commissioner of the General Land Office, and
reaffirmed by the Secretary of the Interior. In their decision, the
local land officers stated the questions to be considered in these
words:
"Letter 'H' of November 18, 1893, directed this office to order
a hearing on the charges."
"The two questions to be passed upon are: (1) Did Jacobus
abandon the land? (2) Was the sale of the land to McCord and McLeod
a bar to the offering of supplemental proof?"
And upon the first question they found as follows:
"Upon the first point the testimony of the witness is extremely
conflicting. It is admitted by Jacobus that he worked at his trade
in Superior and Iron River most of the time during his occupancy of
the land, but it seems also fairly well established by the
testimony or Mrs. Jacobus and numerous other witnesses that her
residence was upon the land, barring certain absences on account of
sickness and visits. Their cabin and its housekeeping equipment
were superior to those of most homesteaders, and the clearing, in
extent and
Page 195 U. S. 402
cultivation, compared favorably with that of others in the same
neighborhood."
"After learning that supplemental proof would probably be
required, Mrs. Jocobus returned to the land in February, 1893,
where she remained about a week, when she returned to Iron River
and remained for some weeks while being treated for rheumatism. She
made a brief visit to the claim in March, went there again in the
latter part of May, remaining two weeks, and returned for the same
time in July. This was apparently her last stay upon the land until
after supplemental proof was offered, September 20. A small crop of
vegetables and hay was raised that season, as in the two years
before."
"Upon the whole, the residence of Jacobus upon the land was
fairly satisfactory until after the offering of his first proof,
but it is clear that his subsequent residence was for the sole
purpose of enabling him to make proof in order to secure title for
his transferees."
After this, they considered the effect of the sale of the land
to McCord and McLeod, and in so doing commented upon the character
of the occupation by Jacobus and his wife during the spring and
summer of 1893, closing with a decision in these words:
"We are of the opinion, therefore, that Jacobus' supplemental
proof cannot be sustained, and that the entry should be cancelled
and a preference right of entry awarded the contestant, Hill."
Apparently the character of the occupation and improvements by
Jacobus prior to the original entry of July 6, 1892, was not a
matter considered by the local land officers, although it is true
that there was some testimony respecting it. They did not pretend
to disturb the approval of the sufficiency of Jacobus' occupation
and improvements made in allowing that entry after the conclusion
of the original contest between Hill and Jacobus. They assumed that
that matter was already settled. This is evident from the two
questions which they say were presented, and if they considered it
at all, they doubtless
Page 195 U. S. 403
thought the testimony was not such as to justify any change in
the previous conclusion. This decision was affirmed by the
Commissioner of the General Land Office. In his opinion, after
reciting the contest, the decision, and the grounds of appeal, the
fact of the commutation of the homestead entry, the direction to
Jacobus to furnish supplemental proof, as the commutation was
premature, he says:
"It is shown by the evidence that defendant had a small log
house on the land; that it was well finished and well furnished;
that he had about two acres cleared; that the improvements were
worth about $200. He did not have any stock of any description, no
chickens or other poultry; that, on December 27, 1892, defendant
sold said land to David McLeod and W. E. McCord for $4,250
cash."
"On the question of residence, the testimony is very
conflicting."
"Defendant's wife stayed on the land a part of the time and
defendant worked in his barbershop in the Town of Iron River, and
stayed there nearly all the time, working at his trade; he made
occasional visits to the land on the Sabbath day."
"It also appears that the defendant rented three rooms in Iron
River after he had sold the land, and he, with his wife, moved into
them; that, after defendant learned that he was required to furnish
supplemental proof because his commutation was premature, his wife
moved back to the land, but defendant still remained in Iron River,
making occasional visits to the land on the Sabbath and returning
the same day."
Obviously the time of occupation referred to was after the
commutation. This is made clear by a comparison of this opinion
with that of the local land officers. If other grounds were relied
on than those stated in the opinion of the local land officers,
they would have been distinctly stated, and the fact that the
decision was based upon the character of the occupation and
improvements prior to the original entry would
Page 195 U. S. 404
have been made clear. This conclusion is strengthened by the
final declaration of the Commissioner:
"The sale and conveyance of the land is clearly proven, and it
is also as clearly shown that the land was reconveyed to defendant
so that he could submit his final supplemental proof for the
benefit of McLeod and McCord; hence your opinion is affirmed."
This decision of the Commissioner of the General Land Office was
sustained by the Secretary of the Interior in an opinion which
contains no recital of facts, but simply says:
"Said decision fairly sets forth all the facts in this case, and
the conclusion therein reached is sustained by the testimony, and
is in conformity with law and the decisions of the Department, and
is hereby affirmed."
In the final opinion of the supreme court of the state is this
statement:
"We still think it plain therefore that no questions involving
Jacobus' proceedings up to and including the final proof of
September, 1892, were passed upon in the consideration of the
contest had in 1894. Indeed, this seems to be the view of
appellant's counsel as well, for he declares in his brief that"
"no question of
mala fides was found in the making of
proofs [of September, 1892], nor was the subject considered. Simply
from the evidence, which was the same as the affidavits, they
determined the second question which they stated at the outset,
that the sale of the land to McCord and McLeod was a bar to the
offering of supplemental proof."
While no such admission is found in the brief filed in this
Court, possibly the omission may have been induced by the stress of
the case.
We agree therefore with that court, that there is noting in the
record to justify a conclusion that the Land Department ever
changed its finding, made in allowing the original entry, of the
sufficiency of Jacobus' occupation and improvements up to that
time.
It is also worthy of notice in passing that the supreme
Page 195 U. S. 405
court, in its opinion, held that the representations and
instrument made and executed by Hill estopped him from questioning
the validity of the original entry, so far at least, as against the
plaintiff, although they would not bar the United States from
reclaiming the land.
We proceed, therefore, to a consideration of the other
questions. At the time the commutation was allowed neither Jacobus
nor the land officers had actual knowledge of the Act of March 3,
1891. Such is the finding of the state court, and, being a question
of fact, this finding is conclusive. Prior thereto a commutation
made as this was would have been valid, and there is neither
finding nor testimony that Jacobus or the land officers acted in
bad faith in the matter. There was simply a proceeding, theretofore
legal and proper, taken in actual ignorance of a restraining
statute. The act of 1896 was obviously passed to reach such a case
as this, in which a commutation was allowed within less than
fourteen months from the date of the homestead entry, and to do
away with the objection on account of the matter of time. Certain
provisions were incorporated in order to prevent injustice to other
parties. But, as between the government and the entryman, its
purpose was to give validity to the commutation if it would have
been valid had not the act of 1891 been passed.
Upon what ground did the Land Department set aside the
commutation entry, and afterwards refuse to reinstate it? The
original entry was July 6; the commutation September 20 -- not
three months thereafter. The act of 1891 allowed commutation only
fourteen months or over after the entry. The commutation therefore
was illegal. Within less than six months after the original entry,
and four months after the commutation, Jacobus sold and conveyed
the land, and his grantees became thereafter the parties solely
interested. Preemption and homestead entries by statute must be
made for the exclusive use and benefit of the parties making the
entries, Rev.Stat. secs 2262, 2290, and in each case an affidavit
to that effect is required. Whatever Jacobus did after his
conveyance
Page 195 U. S. 406
in December, 1892, was not for his exclusive use and benefit. He
attempted to get around the limitations and requirement of the
statute by taking a reconveyance from his grantees, giving to them,
at the same time, a mortgage to secure the consideration stated in
the deed, and by an affidavit stating that, at the time of his
conveyance in December, he reserved about two acres of land where
his house and other improvements were located, and that, when he
heard of the act requiring fourteen months' residence before
commutation, he again took possession of the tract, and continued
in occupation and cultivation. This was held insufficient to avoid
the restraint of the statute, and upon this ground the commutation
entry was set aside. The local land officers, in their opinion,
say:
"The bare statement of facts points to the conclusion that the
sale of the land in December, 1892, was absolute, and that the
subsequent residence of Jacobus upon the land was as the agent of
the transferees, and for the purpose of acquiring title for them.
This conclusion is strongly supported by the admission of Jacobus
upon cross-examination."
"Jacobus, by the deed executed in December, 1892, divested
himself of all right and title to the land. Granting, therefore,
that the reconveyance of September 1st, 1893, was made in good
faith by all parties, the slender residence of the wife, during the
spring and summer of 1893 was not upon the homestead of Jacobus,
but upon land in which he had no claim or interest, and the
residence, such as it was, could not avail him in making
supplemental proof. But we think all the circumstances -- the time
at which the conveyance from McCord and McLeod to Jacobus was made,
the execution of the mortgage, and the evidence of Jacobus himself
-- show that the land was not reconveyed to Jacobus in good faith,
but for the sole purpose of enabling him to make supplemental proof
for the benefit of his grantees. We are of the opinion, therefore,
that Jacobus' supplemental proof cannot be sustained, and that the
entry should be cancelled, and a preference right
Page 195 U. S. 407
of entry awarded to the contestant, Hill."
While the Commissioner of the General Land Office, in his
opinion, concludes:
"The sale and conveyance of the land is clearly proven, and it
is also clearly shown that the land was reconveyed to defendant, so
that he could submit his final supplemental proof for the benefit
of McLeod and McCord; hence, your opinion is affirmed, and
defendant's homestead and his cash entry for the land involved is
held for cancellation."
While these opinions may have correctly declared the law as it
stood when they were delivered, we may remark in passing that
Jacobus seems to have acted in an honest effort to protect his
grantees from the consequences of a mistake made by himself and the
local land officers at the time of the commutation.
When the act of 1896 was passed, the matter was still pending in
the Department, and no entry had been made by Hill. The motions by
Jacobus for a review and to confirm his entry were denied by the
Secretary of the Interior, the ground of the decision being, as
stated in a communication to the Commissioner of the General Land
Office:
"The evidence in the cases at bar clearly shows that the entry
was not made in good faith, and the proof submitted by the entryman
was fraudulent, as fully set out in your office decision of January
23, 1895."
"It is likewise impossible to confirm the entry under the
provisions of the Act of June 3, 1896, for the same reason; namely,
the practice of fraud in making proofs."
The reference in this to the decision of the Commissioner makes
it clear that the fraud and the want of good faith mentioned were
in the commutation entry and the supplemental proofs. Evidently the
Secretary ruled that the act of 1896 did not confirm a previous
premature commutation entry if the entryman was guilty of any fraud
or wrong subsequent thereto in attempting to make good the title
acquired thereby. We do not so understand the law. If, at the time
of the commutation
Page 195 U. S. 408
entry, there had been no fraud or lack of good faith, and the
only defect was in the matter of time, we do not think the
confirmation authorized by the act of 1896 is destroyed by anything
like that shown to have been done by Jacobus in his effort to
protect the title he had conveyed to McCord and McLeod. In other
words, if the commutation entry was rightful save for the fact that
it was premature, the act of 1896 does away with that objection and
confirms the entry, and the right to that confirmation is not
destroyed by that which the entryman may have done in a subsequent
effort to protect his title.
We see no error in the proceedings, and the judgment is
Affirmed.
