Bona fide purchase is an affirmative defense which the
grantee must set up in order to defeat the claim of one seeking to
have a trust declared in land patented, if the bill is otherwise
sufficient.
Rev.Stat., § 2291, is specific in its requirements that, in
order to obtain a patent for a homestead, the applicant must have
actually resided upon or cultivated the same for a term of five
years.
While the law deals tenderly with one going in good faith on the
public lands with a view of making a home thereon, the right is a
statutory one, and, in such a case as this, it is essential to show
compliance with the statute as a prerequisite to obtaining a
patent.
Although acting in good faith, settlement upon land other than
that included in the entry is not sufficient, and in this case so
held as to an entry for one quarter-section where the
entryman, through mistake, built his home on another
quarter-section and at a point about one-quarter of a mile from the
land entered, notwithstanding he did make a trail and build a
stable on the land entered.
69 Wash. 380 reversed.
The facts, which involve the construction of Rev.Stat., § 2291,
and the necessity of the homesteader making improvements on the
land entered, are stated in the opinion.
Page 236 U. S. 703
MR. JUSTICE DAY delivered the opinion of the Court.
The Great Northern Railway Company filed its amended complaint
against James A. Hower, individually and as
Page 236 U. S. 704
trustee, Anna H. Hower, his wife, Nonpareil Consolidated Copper
Company, Nicholas H. Rudebeck, and James McCreery Realty Company,
in the Superior Court of the State of Washington in and for the
County of Snohomish seeking to establish title to the northeast
quarter of Section 2, Township 27 North, Range 10 East, Willamette
Meridian, in said county and state. Defendants appeared and
demurred upon the ground, among others, that the amended complaint
did not state facts sufficient to constitute a cause of action. The
superior court sustained the demurrer, and upon appeal to the
Supreme Court of the State of Washington, judgment on the demurrer
dismissing the suit was affirmed (69 Wash. 380) and the case was
brought here.
Various paragraphs of the bill allege the selection of the lands
in controversy by the complainant's grantor, the St. Paul,
Minneapolis, & Manitoba Railway Company, under the provisions
of the Act of Congress of August 5, 1892 (27 Stat. 390, c. 382),
which selection was made on March 24, 1894. Other paragraphs of the
bill allege the filing of an application by one Melvin J. Carter on
April 18, 1899, in the district Land Office to enter the northeast
quarter of Section 2, Township 27 North, Range 10 East, under the
homestead laws of the United States, Carter claiming that he had
settled on the land December 1, 1893. The complaint recites the
controversy between the railway company and Carter before the
district Land Officers, and the taking of testimony, which, it is
alleged, showed that Carter, on September 19, 1893, purchased the
improvements of a former settler upon a tract of unsurveyed land on
the left bank of the north fork of the Skykomish River, a short
distance below the mouth of a tributary of said river known as
Trout Creek; that he thereupon established a residence in the cabin
of the former settler, and commenced the construction of a new
dwelling house which he finished in the spring of 1894; that he
moved his
Page 236 U. S. 705
family into this dwelling house and had continued to reside
therein and on said land with his family to the time of said
hearing; that his improvements consisted of the dwelling house and
a small clearing in which he set out trees and shrubbery and raised
vegetables from year to year. It is alleged that the evidence taken
at the hearing further showed that Carter's improvements were all
situated on the left bank of the north fork of the Skykomish River,
about two or three hundred feet from said river and about one-half
mile below the mouth of said Trout Creek, and not upon the land
applied for by Carter under the homestead law; that, on the
evidence alleged, the register and receiver, on August 28, 1903,
held and decided that Carter had duly settled upon the land claimed
by him during the month of September, 1893, and had continued to
reside upon, improve, and cultivate said land to the time of said
hearing on June 1, 1903, and that he should be allowed to enter the
land applied for under the homestead law, and that the railway
company's selection thereof should be cancelled.
It was further charged that, upon appeal to the Commissioner of
the General Land Office, the railway company alleged, among other
things, that the evidence showed that the dwelling house and other
improvements of Carter were not on the land selected by said
railway company and applied for by Carter, but were and at all
times had been situated more than three eighths of a mile from said
land; that the Commissioner of the General Land Office, on March
23, 1904, held and decided that said Carter had settled upon the
land upon which his improvements were made in the fall of 1893, and
that he had commenced his residence thereon with his family in the
spring of 1894, and had continued to reside upon and improve same.
The Commissioner further held that the evidence taken tended to
show that Carter's improvements were all situated on the Northwest
Quarter of
Page 236 U. S. 706
Section 2, Township 27 North, Range 10 East, and not on the
Northeast Quarter of said Section 2, and ordered a further
hearing.
It was alleged that, on the further hearing before the register
and receiver of the Seattle Land Office on December 16, 1904, the
evidence conclusively showed that the improvements, including the
dwelling house and residence of Carter, were all situated on Lot 2
of said Section 2, Township 27 North, Range 10 East; that said Lot
2 is located in and is a part of the Northwest Quarter of the
Northwest Quarter of said section, and that the east line of said
lot is located a quarter of a mile west of the west line of the
Northeast Quarter of Section 2; that the evidence taken at the
hearing further showed that, at some time prior to said hearing,
Carter had constructed or taken part in the construction of a trail
up Trout Creek, and extending over and across a part of the
Northeast Quarter of Section 2; that, about the year 1899, there
had been constructed on the northwesterly part of the Northeast
Quarter of Section 2 a small stable or barn, and that Carter had at
times used said stable or barn for storage purposes, and that, upon
the evidence taken at said rehearing, the register and receiver of
said Seattle Land Office held and decided, on January 21, 1905,
that all of said Carter's improvements were located on said Lot 2
of said Section 2.
The complaint further alleged that, on the 30th day of June,
1905, the Commissioner of the General Land Office, on the evidence
taken at the rehearing, held and decided that, on September 19,
1893, Melvin J. Carter purchased the claim, cabin, and improvements
of a former settler; that he built for himself and family a new
cabin on the claim purchased; that he lived in the cabin and
cultivated a small tract of land on the claim; that, about a year
after his settlement, Carter constructed trails across Section 2
and up Trout Creek for the purpose of getting to different
Page 236 U. S. 707
places on his claim; that he also built a barn or stable and
used it for storing supplies; that a part of the trails and the
stable or barn were on the Northeast Quarter of Section 2, and that
the dwelling house and cultivated land were all on the Northwest
Quarter of said Section 2, about one fourth of a mile west of the
west line of the Northeast Quarter of said section; that,
notwithstanding that the evidence produced at said rehearing failed
to show that Carter ever resided upon, improved, or cultivated any
part of the Northeast Quarter of Section 2, and did conclusively
show that Carter's dwelling house and cultivated land and
improvements, except only said trails and stable or barn, which
were constructed after the railway company's selection of said
land, were situated more than one fourth of a mile from Northeast
Quarter, and the Commissioner of the General Land Office found such
to be the facts, said Commissioner wrongfully and unlawfully, it is
alleged, and in fraud of the railway company's rights to the land
and to complete its selection thereof, and to receive the patent of
the United States therefor, held, as a matter of law, that Carter's
residence was established and maintained in good faith and in the
belief that his dwelling house was upon the land embraced in his
homestead application, and that such residence, taken in connection
with the subsequent construction of trails and the stable or barn
on the Northeast Quarter of said Section 2, was a constructive
residence on said Northeast Quarter, and that said Carter should be
permitted to make homestead entry of said land, and that the
selection thereof by the St. Paul, Minneapolis, & Manitoba
Railway Company should be cancelled.
The complaint further alleged that the railway company appealed
to the Secretary of the Interior from the decision of the
Commissioner of the General Land Office, alleging that Carter's
dwelling house and improvements were situated more than a quarter
of a mile from the
Page 236 U. S. 708
Northeast Quarter; that he had never resided upon, occupied,
cultivated, or in any manner improved the land embraced in his
homestead application, and that his acts did not constitute a
settlement upon said Northeast Quarter within the meaning of the
homestead law; that, on the twenty-third day of November, 1905, the
Secretary of the Interior, passing on said appeal, held the facts
in the case to be as found by the Commissioner in his decision, and
on the facts, wrongfully and in fraud of the right of the railway
company to said land, held and decided as a matter of law that, as
Carter was shown to have been a
bona fide homestead
settler upon unsurveyed land at the time the railway company made
selection of the Northeast Quarter of said Section 2, and
subsequently complied with the law as to residence and
improvements, he was constructively a settler upon said Northeast
Quarter, and that his application to enter the land under the
homestead law should be allowed, and the selection thereof by the
railway company cancelled.
It was further averred that the railway company's selection of
the Northeast Quarter of Section 2 was cancelled pursuant to the
decision of the Secretary of the Interior, and that, afterwards, on
the 16th day of March, 1906, said Melvin J. Carter was permitted to
make, and did make, homestead entry on the Northeast Quarter of
Section 2, and that, on May 16, 1906, he made the final proofs
required, and received a final entry certificate for the land, and
that thereafter, on the 8th day of March, 1907, patent of the
United States was issued to Carter, conveying to him the legal
title to said lands.
It is also averred that the decisions of the Commissioner of the
General Land Office and the Secretary of the Interior, and the
cancellation of the railway company's selection, were wrongfully
and erroneously made through a mistake of law in this -- that it
was in and by said decisions held that the settlement and residence
of Carter
Page 236 U. S. 709
upon a tract of land situated one fourth of a mile distant from
the land sought to be entered by him was constructively, and within
the meaning of the homestead law of the United States, a settlement
upon the land last mentioned.
It was further averred that, on the ninth day of July, 1906,
prior to the issuing of patent of the United States to Carter, said
Melvin J. Carter and Clara Carter, his wife, granted to the
defendant, James A. Hower, as trustee, their right, title, and
interest in said Northeast Quarter of Section 2, Township 27 North,
Range 10, East, and that the beneficiaries of the trust created by
the deed, or the terms and conditions thereof, are not set forth in
the deed, and plaintiff has no knowledge or information concerning
the beneficiaries or the terms and conditions of the trust, and it
was further averred that the defendant Nonpareil Consolidated
Copper Company claims an interest or estate in said Section 2
adverse to plaintiff, but that plaintiff has no knowledge or
information concerning the nature or extent of the interest so
claimed. A like allegation is made as to the defendants Nicholas H.
Rudebeck and James McCreery Realty Company. It is averred that the
interest of the said defendants, if any they have, is subsequent,
subordinate, and inferior to the claim of the plaintiff.
The prayer is that the plaintiff be adjudged the owner of the
title, and the defendants decreed and required to convey the same
to it.
The Supreme Court of Washington affirmed the judgment of the
lower court, sustaining the demurrer, upon the ground that the
decisions of the Land Department should be followed, and that
Carter's homestead entry was duly and properly approved. Apart from
this ground of decision, it is argued by the defendants in error
that the judgment was properly sustained in view of the want of
allegation that the defendants in error -- purchasers, so far
as
Page 236 U. S. 710
appears, in good faith, and without notice of the claims of the
plaintiff in error -- had knowledge or notice of the plaintiff's
claims, or such notice as the law requires as to the alleged
invalidity of the title as would deprive them of the rights of
bona fide purchasers.
It will be noticed that the allegations of the bill are that the
deed to Hower, as trustee, was made on July 9, 1906, before the
patents issued on the 8th day of March, 1907, to Carter, but after
the hearings and decisions to which we have referred, and after May
6, 1906, when Carter made the final proofs of settlement and
cultivation required by Section 2291, Rev.Stat., and after he had
received final entry certificate for the lands upon that date.
Under these circumstances, it is said the grantee had such title
as might be conveyed, notwithstanding the patent had not issued,
and the rights of a
bona fide purchaser will be protected.
United States v. Clark, 200 U. S. 601.
It is the contention of the defendant in error that, it
appearing in the complaint that the grantee had complied with the
requirements of the law, and everything was complete except the
issuance of the patent, it was necessary to further aver that the
purchaser had knowledge or notice of the supposed mistakes or
wrongs charged in order to deprive him of the benefit which inheres
in the position of a
bona fide purchaser. And this, it is
contended, is the effect of
United States v. Clark, supra.
But the position of a
bona fide purchaser is not to be
assumed from the allegations of the complaint, which do no more
than state the several transfers, without any allegation showing
affirmatively that the defendants are
bona fide purchasers
for value, in which event only could this defense be successfully
made by demurrer to the complaint.
Bona fide purchase is
an affirmative defense, which the grantee must set up in order to
defeat the right of the railroad company to have a trust declared
in the lands in question, if the bill is otherwise sufficient for
that purpose. This matter was
Page 236 U. S. 711
directly involved and considered in
Wright, Blodgett
Company, Limited v. United States, decided February 23, 1915,
ante, p.
236 U. S. 397, and
it is only necessary in this connection to refer to that case.
The question, then, is, was there sufficient compliance with the
homestead law to entitle Carter to the benefit thereof? It is not
contended that the courts may refuse to follow the conclusions of
the Land Office based upon testimony as to matters of fact, but the
insistence is that there is here such a clear mistake of law upon
the facts found as to entitle the complainant to the relief sought.
As it is stipulated in the decision on the demurrer that the
findings of the officers of the Interior Department may be looked
to, they must be had in mind in addition to the facts already
recited from the complaint. Upon the appeal to the Commissioner of
the Land Office from the finding of the register and receiver, that
official held:
"I therefore have no doubt of the good faith of Carter in his
present application, and he now offers to amend his application so
as to include the land which the government finally determines his
improvements are placed upon, and to drop from either the eastern
or the southern boundary of his claim sufficient land to enable him
to include the actual tracts upon which his improvements are
located, provided the Department finally holds that his homestead
improvements are not upon the N.E. 1/4."
"The patenting of Lot 2 to E. B. Carter, and Lot 1, which lies
between him and N.E. 1/4, to the railway company, place them beyond
the jurisdiction of this office, and the suggested adjustment
cannot be had, and the only relief that can be extended to him is
to award him the N.E. 1/4 upon the principle of constructive
residence, which, I think, may, in all equity and justice, be
applied in his case; he made some improvements on the N.E. 1/4,
believed he was residing on that quarter, and lived there six years
in that belief, and made application for that
Page 236 U. S. 712
tract so believing; therefore, under the decisions of the
Department in Kendrick v. Doyle, 12 L.D. 67; Noe v. Tipton, 14 L.D.
447; Staples v. Richardson, 16 L.D. 248, and others, I rule that
Carter's residence in good faith in a house believed to be upon the
land covered by his application is a constructive residence on such
land, and that, since said residence antedates the selection of the
railroad company, he had the better right thereto."
"I therefore hold the company's selection of the said N.E. 1/4
for rejection, subject to appeal, with a view to permitting Melvin
J. Carter to perfect homestead entry thereof should this decision
become final."
Upon appeal to the Secretary of the Interior, it was decided,
among other things, as follows:
"It is evident from the testimony and circumstances in the case
that, when Melvin J. Carter purchased the cabin and improvements of
Doolin, and built the new house into which he moved with his
family, the land being then unsurveyed, he intended to claim land
extending to the east of said improvements. This is shown from the
fact he built the barn, made the trails, and posted notices of his
claim over a quarter of a mile to the east, as shown in the case.
It does not appear why he did not apply for Lot 1, or fractional
N.E. 1/4 of N.W. 1/4, situated between his house and the land
applied for. It does appear, however, that several surveys of the
land, either public or private, had been made, and that the
situation was confusing as to the lines and stakes, even to those
accustomed to looking up lines and corners. As Carter tendered his
homestead application directly after the filing of the plat,
presumably he still believed that his house was located on the N.E.
1/4."
"As he is shown to have been a
bona fide homestead
settler upon unsurveyed land at the time the railway company made
selection thereof, and subsequently has made a good compliance with
the law as to residence and improvements, the Department is of the
opinion that his
Page 236 U. S. 713
application for the tract in question should be allowed. As the
railway company made selection of the entire section, it loses no
more land than it would if Carter had applied for said Lot 1 with
sufficient in the N.E. 1/4 to make 160 acres."
"Your office decision holding in favor of Carter is affirmed,
and upon his perfecting his application for said N.E. 1/4 of Sec.
2, T. 27, N. R. 10 E., the railway company's selection thereof will
be cancelled."
The statute of the United States (Rev.Stat. § 2291) is specific
in its requirements that, in order to obtain a patent for a
homestead, the applicant must have actually resided upon or
cultivated the same for a term of five years succeeding the filing
of the claim, etc.
*
The question, therefore, is was an actual residence within the
meaning of the statute sufficiently shown to comply with these
provisions? It is true, as the Supreme Court of Washington stated
in its opinion in this case, referring to the opinion of this Court
in
Ard v. Brandon, 156 U. S. 537,
156 U. S. 543,
"the law deals tenderly with one who, in good faith, goes upon the
public lands with a view of making a home thereon." This is as it
should be, and the courts have shown a commendable disposition to
uphold one who has acted in good faith in entering upon the public
lands for this purpose. Nevertheless, the right is a statutory one,
and in this case it was essential to show actual residence upon the
land as a prerequisite to the granting of a patent and obtaining
title to the same.
Conceding that Carter acted in entire good faith, and that he
meant to comply with the law, it is nevertheless the fact that his
settlement was upon, and the land cultivated was in, a different
quarter-section from that which
Page 236 U. S. 714
he undertook to enter, and the quarter which he contends for was
separated from the one which he occupied by a 40-acre tract. It is
true that, sometime during his occupancy, a trail was laid out and
a small stable constructed on the Northeast Quarter. But the fact
remains that his residence and improvements by way of cultivation
were upon a quarter-section entirely separate and apart from the
one to which title is now claimed. It seems to us to be going too
far to say that, because of the trail to the Northeast Quarter and
the small stable thereon, and the notices posted upon it, there was
a constructive residence on that quarter, although the actual
residence was upon the other quarter.
We have been cited to no cases in the Land Department which go
so far as is required in this instance in order to support title.
We have been unable to find anything in our own decisions which
would sanction such liberal treatment of the statutory requirement
as to residence.
In Talkington v. Hempfling, 2 L.D. 46, the house of the entryman
was, by mistake, built thirty yards outside of the lines of his
claim, and was occupied in good faith in the belief that it was on
the land claimed. In In Re Huling, 10 L.D. 83, the house was built
just across the line in the belief that it was actually inside the
limits and upon the land claimed by the entryman. In Kendrick v.
Doyle, 12 L.D. 67, the entryman was honestly mistaken as to the
limits of his claim, owing to conflicting surveys, and his house
was built in a corner where the boundary line admittedly was in
doubt, but the correct survey showed the house to be a little
outside the line. In Staples v. Richardson, 16 L.D. 248, the
entryman discovered that he had built his house outside his limits,
and razed it and built another house inside the supposed limits,
but found that house to be outside, and built a third house, this
time within the line limits. In Keogle v. Griffith, 13 L.D. 7, the
claimant's first dwelling was
Page 236 U. S. 715
about forty rods from his land boundary. Upon discovering the
mistake, he built another house upon the land entered. In
Lindsey v.
Hawes, 2 Black 554, the claimant's dwelling house
was on the boundary line of the land claimed. A similar situation
existed in
Silver v.
Ladd, 7 Wall. 219. In each of these cases, the
residence was held sufficient to satisfy the requirement of the
statute. On the other hand, both the Department and this Court have
held in a number of cases that residence upon one tract of land
will not support a preemption or homestead claim to another and
distinct tract, even where the claimant has made substantial
improvements upon the latter. In Guyton v. Prince, 2 L.D. 143, the
claimant had purchased from a railroad company a tract which
adjoined that of his homestead entry; two cabins had been built
upon the homestead land, one by Prince, besides a stable,
smokehouse, and other buildings. The land was cultivated after
entry, but at no time did the claimant reside upon the land,
contenting himself with a few stays of a week or two at a time, and
living in his dwelling upon the land purchased from the railroad
company. His claim to homestead was denied because of his failure
to reside upon the land claimed. The case of In Re Harten, 10 L.D.
130, is somewhat similar, the claimant having purchased a
possessory right to a tract of land embracing the homestead
attempted to be claimed, and resided on the tract purchased,
intending thereby to claim the entire tract. When the land was
surveyed, his house was found to be 200 feet distant from the line
of the homestead, while his garden and spring, as well as some
out-buildings, were on the homestead tract. He cultivated the
homestead tract, and shortly after his homestead entry built a
house upon the homestead tract, residing since his entry thereon
one night each month, hoping thus to establish his residence. The
Department held this to be no residence, however, and denied
his
Page 236 U. S. 716
claim. In In Re Parker, 8 L.D. 547, Parker made scrip location
of unsurveyed land, and after the survey was made, made further
entry under the homestead laws for the remaining three quarters of
the section. His residence and most of his improvements were on the
scrip claim until he made his homestead entry, when he removed upon
the lands embraced in said entry. It was held that he was not a
settler on the homestead land until he moved his residence thereon.
In the case of In Re Bowen, 41 L.D. 424, the settler had made an
entry for a quarter-section some surveyed lands, and upon
presenting his homestead proof, he included the adjacent quarter of
some unsurveyed lands. His dwelling house was situated on the
latter tract, where he had resided and had cultivated some five
acres in the adjacent tract. His title to the unsurveyed lands was
denied for reasons not necessary to be set forth here, and as to
the surveyed tract, his claim was denied because of lack of
residence upon the proper section. In
Ferguson v.
McLaughlin, 96 U. S. 174, it
was held that, under § 6 of the Act of March 3, 1853, 10 Stat. 244,
c. 145, a settler upon unsurveyed public lands in California has no
valid claim to preempt a quarter-section, or any part thereof
included in his settlement, unless it appears by the government
surveys, when the same are made and filed in the local land office,
that his dwelling house was on that quarter-section.
In
St. Paul &c. Ry. v. Donohue, 210 U. S.
21, this Court summarized the requisites concerning
preemptions and homesteads essential to the acquirement of the
rights intended by the statute, and said at page
210 U. S.
33:
"As a result of this review of the legislation concerning
preemptions and homesteads, and of the settled interpretation
continuously given to the same, we think there is no merit in the
proposition that a homesteader who initiates a right as to either
surveyed or unsurveyed land, and
Page 236 U. S. 717
complies with the legal regulations, may not, when he enters the
land, embrace in his claim land in contiguous quarter-sections if
he does not exceed the quantity allowed by law, and provided that
his improvements are upon some portion of the tract, and that he
does such acts as put the public upon notice of the extent of his
claim."
In this case, it appears that the residence was not upon any
part of the tract claimed by the homesteader, nor was the residence
upon a contiguous tract of land, but was entirely separate and
apart from the land claimed. Under these circumstances, we are
constrained to the conclusion that the complaint, upon its face,
made a case entitling the plaintiff in error to the relief sought.
As we have said, the rights of a
bona fide purchaser, if
such exist in this case, must be affirmatively set up by answer and
sustained by proof. In the brief for the defendants in error, a
contention is made that the plaintiff is estopped from asserting a
claim to the quarter-section in question by reason of having
wrongfully obtained a patent for the land actually settled upon by
Carter, and having failed or refused to surrender that tract when
the contest was pending in the Land Office; but it is enough to say
of this that the facts upon which the contention is rested are not
sufficiently disclosed in the complaint to require or justify its
consideration at this time. If there be facts warranting such a
contention, they should be distinctly set forth in the answer and
appropriately proved.
We think the court below erred in sustaining the demurrer to the
complaint, and it follows that its judgment must be reversed, and
the case remanded to the Supreme Court of Washington for further
proceedings not inconsistent with this opinion.
Reversed.
* Since this case arose, the statute has been amended so as to
require a habitable house upon the land, and actual residence and
cultivation for the term of three years. Act of June 6, 1912, 37
Stat. 123, c. 153.