Under the general rule of law that an entry segregates the tract
entered from the public domain subject to be entered until that
entry is disposed of, this Court sustains the rule of the Land
Department that no subsequent entry can be received after the Land
Commissioner has held the entry for cancellation until the time
allotted for appeal has expired or the rights of the original entry
have been finally determined.
Where the successful party in a land contest does not enforce
his preference rights or take any action looking to an entry within
the prescribed period, but files a waiver of his right of entry, in
the absence of any findings sustaining charges of fraud as to the
delivery of the waiver, this Court will not, in an action commenced
four years thereafter, set aside a patent issued to one who had
entered the land and in whose favor the waiver was filed.
15 Okl. 12 affirmed.
This was a suit commenced in the District Court of Oklahoma
County, Oklahoma, by appellant, praying that the appellees, the
holders of the legal title to a tract of land in Oklahoma County be
decreed to hold that title in trust for her benefit. The district
court entered a decree in favor of the defendants, which was
affirmed by the supreme court of the
Page 207 U. S. 408
territory, 15 Okl. 12, from whose decision this appeal was
taken.
These facts are undisputed: on April 23, 1889, Ewers White made
a homestead entry of the land. Subsequently two other parties, C.J.
Blanchard and Vestal S. Cook, attempted to enter the same land. On
July 16, 1889, in a contest before the local land officers, they
held that all the claimants were disqualified because of entering
the territory in violation of the President's proclamation. On
appeal, the Commissioners of the General Land Office, on March 7,
1890, affirmed their ruling, dismissed the contests of both
Blanchard and Cook, and held the entry of White for cancellation.
From this decision White prosecuted an appeal to the Secretary of
the Interior, who, on July 21, 1891, affirmed the decision of the
Commissioner. 13 L.D. 66. During the time allowed for appeal to the
Secretary from the Commissioner, and on March 11, 1890, Levi Holt,
by his attorney in fact, filed a soldier's declaratory statement
for the land, which was suspended by the register and receiver
pending final action on the appeal. Thereafter and on November 29,
1890, before the decision by the Secretary of his appeal, White
filed a relinquishment of his entry and all rights thereunder, and
the defendant Samuel Murphy immediately thereafter made a homestead
entry thereon.
In addition, it was charged by plaintiff that, after a decision
by the Secretary of the Interior, in a contest between Murphy and
Holt in favor of Holt, or rather in favor of his widow (as he had
died in the meantime), a contract was entered into between
plaintiff's attorney and the defendant Samuel Murphy, by which her
attorney should deceive her as to her right in the land, and, for a
pecuniary consideration received from Murphy, should file a waiver
of her right of entry, and thus permit him to acquire a patent, all
of which was done; that Anton H. Classen (the present holder of the
legal title) and the other defendants were fully aware of what was
thus wrongfully done; that the entry of Murphy appearing on the
record as being unchallenged, a patent was, on January 19, 1898,
issued
Page 207 U. S. 409
to him. Subsequently, the title to most of the land passed to
defendant Classen, who at the time of the filing of the waiver by
plaintiff's attorney was receiver of the land office of the
district in which the tract in controversy is situated, and who
claimed in his answer, among other things, that he was a
bona
fide purchaser and without notice of any equities of the
plaintiff.
Sections 2304 and 2309, Rev.Stat., provide for homestead entries
by soldiers and officers who served in the Army of the United
States. By § 2309, the declaratory statement of such soldier or
officer may be made by an agent as well as personally, and he is
allowed six months thereafter to begin settlement and improvement,
whereas, in ordinary cases, the entryman must make affidavit of his
right to enter before the register or receiver, and must commence
his residence and cultivation of the land immediately after the
filing of the affidavit.
Page 207 U. S. 411
MR. JUSTICE BREWER delivered the opinion of the Court.
The plaintiff alleges in her petition that the land is worth
$100,000. It appears that she has never been in Oklahoma, that
neither she nor her husband ever entered upon or cultivated the
land, and yet she asks the court to give her this valuable
property, taking it away from those who, at least by their presence
and occupation of the tract, have assisted in building up a state
having more than a million inhabitants.
Another matter is worthy of notice. According to a report of the
register of the local land office to the General Land Office at
Washington, on May 12, 1897, the attorney for the plaintiff was
notified of the decision in her favor by the Commissioner of the
General Land Office, and on June 16 of that year that attorney
filed the waiver of the preference rights thus awarded to her. The
patent to Murphy was issued on January 19, 1898, and recorded in
the office of the register of deeds in Oklahoma County on January
25, 1898. This suit was commenced on September 16, 1901. It
therefore appears that the plaintiff took no action until more than
four years after the waiver by her attorney of her preference
rights and three and a half years after the issue of the patent and
its record in the county in which the land is situate. It is true
that she claims to have been ignorant of the decision in her favor,
and that she relied upon her attorney, whom she charges was engaged
in a conspiracy to defraud her. Although this reliance, so far as
it was reasonable and in fact controlled her, may, to some extent
at least, have excused her inaction, yet it must also be remembered
that not improbably her inaction may have influenced some of the
defendants to deal with the land in reliance upon the title passing
by the patent to Murphy.
The decree in the district court finds that the plaintiff "has
failed to sustain the material allegations of her petition," and
holds that neither she nor any of the heirs of Levi Holt "have any
right, equity, or interest in and to said tract of land above
Page 207 U. S. 412
described or any part thereof," and quiets the title of
defendants against all their claims, while the supreme court, in
its opinion, says that the district court was warranted in finding
that the "allegations of fraud in the petition were not sustained
by the evidence."
The supreme court, however, rested its decision largely upon
this rule of law: that whenever an entry has been made of a tract
of land, that tract is segregated from the mass of public land
subject to entry until the existing entry is disposed of.
Counsel for appellant do not question the general rule as to the
effect of an entry regular upon its face, and concede that it is no
longer open to doubt, in view of the many ruling of the Land
Department and the decision of this Court,
Hodges v.
Colcord, 193 U. S. 192;
McMichael v. Murphy, 197 U. S. 304, the
latter a case involving the land in controversy, but they seek to
distinguish this case in that the local land officers had held all
the claimants disqualified, and that, on appeal the Commissioner of
the General Land Office, on March 7, 1890, had affirmed their
ruling, dismissed the contests of Blanchard and Cook, and held the
entry of White for cancellation; that the application of Holt to
enter was made on March 11, 1890, before any appeal had been in
fact taken from the decision of the Commissioner to the Secretary
of the Interior. In other words, at the time that Holt applied to
make his entry, there was no pending entry. It could not have been
foretold whether White would appeal from the decision of the
Commissioner of the General Land Office, and if he did not, there
would be no entry to conflict with Holt's application.
They contend that the application of Holt should have been
recognized as an application to enter the land, to take effect if
White should not appeal from the decision of the Commissioner, or
if, on appeal, that decision should be sustained. In that way, Holt
would have been given priority over all subsequent entries. Counsel
further say that such was then the ruling of the Department, citing
especially McMichael
Page 207 U. S. 413
v. Murphy, 20 L.D. 147, and that, although that decision has
been overruled, yet that it was the law of the Land Department, as
then established by its practice, and should be recognized as
controlling the rights of the parties. The case in which, as they
concede, the doctrine of McMichael v. Murphy was overruled is
Cowles v. Huff, 24 L.D. 81, decided in January, 1897 -- a year
before the issue of the patent in this case.
The difference in the ruling is disclosed by the two cases of In
re Gauger, 10 L.D. 221, and Allen v. Price, 15 L.D. 424. In the
former, it was held:
"An application to enter may be received during the time allowed
for appeal from a judgment of cancellation, subject to such appeal,
but should not be made of record until the rights of the former
entryman are finally determined."
In the latter, the Secretary said (p. 426):
"The Act of May 14, 1880, 21 Stat. 140, granting to a successful
contestant the preference right of entry, and the Act of July 26,
1892, 27 Stat. 270, granting to his heirs the same rights, it must
be admitted, conferred a right upon such party, and when we
consider that this right must be exercised within the limited
period of thirty days, and that it can only be exercised upon a
specified and limited tract of land, is it not reasonable to assume
that it was the intention of such legislation to reserve from other
appropriation, for the period specified, the designated tract of
land, and thus enable the party intended to be benefited to reap
the reward of his diligence in procuring the cancellation of the
prior entry?"
"Upon mature reflection, I am convinced that, to hold otherwise
is, by implication at least, to assume that Congress holds out
inducements to a party to take certain action, but fails to protect
him in the rights such action secures. To reserve the land for the
time specified will certainly be in the line of protecting the
contestant's rights, and no other party can be seriously prejudiced
thereby."
In McMichael v. Murphy, 20 L.D. 147, he held that (p. 152):
"One of the rules of this Department, established by a
number
Page 207 U. S. 414
of decisions, is, that a judgment of your office holding an
entry for cancellation is final so far as that tribunal is
concerned, and at once throws the land involved open to entry. That
an application to enter made after the date of said judgment and
within the time allowed for appeal should be received, but not
placed of record until the time for appeal has expired, or the
rights of the entryman on appeal have been determined by this
Department. In other words, that such an application shall be
received subject to the rights of the entryman on appeal,"
while, in Cowles v. Huff,
supra, it was decided
that
"an application to enter should not be received during the time
allowed for appeal from a judgment cancelling a prior entry of the
land applied for, nor the land so involved held subject to entry,
or application to enter, until the rights of the entryman have been
finally determined."
In the course of his opinion, the Secretary, after noticing the
difference between the cases of In re Gauger and Allen v. Price,
said, 24 L.D. 86:
"This summary shows beyond any question that there is, in some
particulars at least, an irreconcilable conflict between these
cases. To the extent of such conflict, one or the other of them
must be overruled. From a careful examination of the subject, I am
convinced that the doctrine announced in Allen v. Price furnishes
the better practice, and it will be followed. The case of In re
Gauger, 10 L.D. 221, is therefore overruled. All other cases
following it, insofar as they may be in conflict with the views
herein expressed, are also hereby overruled."
See also Stewart v. Peterson, 28 L.D. 515, in which the
Secretary held that (p. 519),
"in order that this important matter of regulation may be
perfectly clear, it is directed that no application will be
received, or any rights recognized as initiated by the tender of an
application for a tract embraced in an entry of record, until said
entry has been cancelled upon the records of the local office."
To fully appreciate the scope of this ruling, it must be
remembered that the local land officers
Page 207 U. S. 415
do not, except in the case of a relinquishment by the entryman,
on their own judgment cancel an entry of record in their office,
and that it remains until the Commissioner of the General Land
Office sends directions to the local land officers to cancel it;
and, further, that the Commissioner, even after his decision
against the validity of the entry, sends down no order for its
cancellation until after the time has expired for appeal from his
decision, or until an appeal, if had, is finally disposed of by the
Secretary (p. 517). Hence, by this rule, which was in force at the
time the patent was issued, the appellant took no rights,
preferential or otherwise, by the declaratory statement filed in
March, 1890. Such a rule, when established in the Land Department,
will not be overthrown or ignored by the courts unless they are
clearly convinced that it is wrong. So far from this being true of
this rule, we are of opinion that to enforce it will tend to
prevent confusion and conflict of claims.
But, further, it appears that a waiver in proper form of
appellant's right of entry was filed in the Land Department after
the decision in the contest case in her favor, and before the
patent was issued to Murphy. Indeed, after that decision and after
notice to her attorney, she failed to take any action looking to an
entry within the prescribed time.
As, by the findings of both the trial and supreme court of the
territory, all charges of fraud and misconduct may be put one side,
there was nothing to prevent the waiver's receiving operative
force, and that, together with the delay on her part in attempting
to enforce her preference rights, left the land free for Murphy's
entry and the patent thereon.
The decision of the Oklahoma courts was right, and it is
Affirmed.
