An incorporated town in Utah was situate on public lands, which
were duly entered at the proper land office by the mayor, to whom a
patent was issued under the Act of March 2, 1867, 14 Stat. 641. The
legislature of the territory, as authorized by that act, enacted
the requisite rules and regulations for the disposal of the lots in
the town, and provided that the party who was the rightful owner of
possession, or occupant, or was entitled to the occupancy or
possession of a lot, should on certain conditions be entitled
to
a deed therefor from the mayor. A mode whereby contesting claims
should
be determined was prescribed. A., before the lands were entered,
was in the possession of a lot, and mortgaged it to B., but
thereafter remained in possession. In a foreclosure suit brought in
the proper court against A., wherein the process sued out was
served by the marshal of the United States for that territory, a
decree was rendered whereunder he, still acting as the ministerial
officer of that court, under the decision of the local courts that
he was entitled so to do, made sale of the lot to C. The sale was
confirmed by the court, and C. conveyed the lot to D., a
nonresident. A. and D. respectively claimed a deed from the
mayor.
Held:
1. That A.'s interest in the lot, before the lands were entered,
could be the subject of a sale or mortgage.
2. That although this court subsequently decided that the
marshal could act only in cases where the United States was
concerned, his doings in the premises were those of an officer
de facto; that by his service of the process, the court
acquired jurisdiction of the person of A.; that the sale under the
decree extinguished A.'s right to the lot; and that D. was entitled
to a deed therefor from the mayor.
The Act of March 2, 1867, entitled "An Act for the relief of the
inhabitants of cities and towns upon the public lands," approved
March 2, 1867, 14 Stat. 541, provides:
"Whenever
Page 99 U. S. 21
any portion of the public lands of the United States have been
or shall be settled upon and occupied as a town site, and therefore
not subject to an entry under the agricultural preemption laws, it
shall be lawful, in case such town shall be incorporated, for the
corporate authorities thereof, and if not incorporated, for the
judge of the county court for the county in which such town may be
situated, to enter at the proper land office and at the minimum
price, the land so settled and occupied, in trust for the several
use and benefit of the occupants thereof according to their
respective interests, the execution of which trust, as to the
disposal of the lots in such town and the proceeds of the sales
thereof, to be conducted under such rules and regulations as may be
prescribed by the legislative authority of the state or territory
in which the same may be situated,"
&c.
In accordance with this act, the Legislature of Utah, by an Act
approved Feb. 17, 1869, made the necessary "rules and regulations,"
and in November, 1871, Daniel Wells, as Mayor of the City of Salt
Lake, entered certain lands in that territory as "the town site" of
said city, wherein was included the lot which is in controversy in
this suit. On the thirtieth day of September, 1868, Job Smith, then
and for many years prior thereto in possession of the lot and the
owner thereof, subject only to the paramount title of the United
States, executed to one Bernhisel a mortgage of all "his right of
possession, claim, and interest in and to the lot," to secure the
payment of a certain sum of money in one year thereafter. In
September, 1869, Smith executed another mortgage of the lot to one
Linforth, to secure the sum of $1,058.43, payable twelve months
from that date. On the third day of December, 1870, Bernhisel filed
his bill of foreclosure in the District Court of the Third Judicial
District of that territory against Smith and Linforth. The process
sued out was served by the marshal of the United States for the
territory. A decree was rendered by default in favor of Bernhisel.
Pursuant thereto the marshal sold the lot, and on the thirteenth
day of March, 1871, the court, on his report of his doings,
approved and confirmed the sale to William Jennings, to whom the
marshal made a deed for the lot. Jennings conveyed it, March 9,
1872, to Hussey, a resident of the State of Ohio.
Page 99 U. S. 22
Smith remained in possession of the lot, and Dec. 11, 1872,
filed in the probate court his written statement, pursuant to said
act of the territory, claiming that he, under its provisions, was
entitled to a deed, and praying that he be adjudged to be the
lawful owner. Hussey filed a similar statement, which was amended
May 24, 1872.
It was adjudged that Smith was entitled to a deed from the mayor
of the City of Salt Lake, and that a certificate of title should
issue to him therefor. To the same effect was the judgment of the
district court and that of the supreme court. Hussey then appealed
here.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
There can be no question that under the Act of Congress of March
2, 1867, 14 Stat. 541, Smith had an equitable interest in the
premises in controversy which he could sell and convey.
Phyfe
v. Wardell, 5 Paige (N.Y.), 268;
Armour v. Alexander,
10
id. 571;
Tredgill v.
Pintard, 12 How. 24. Until the Mayor of Salt Lake
City made the entry at the proper land office, which he was
authorized to make, the legal title was in the United States. By
the entry, it became vested in the mayor. He held the entire tract
so entered "in trust for the several use and benefit of the
occupants thereof, according to their respective interests." Such
is the language of the statute.
Page 99 U. S. 23
The act does not prohibit a sale, but is silent upon the
subject. Smith mortgaged to Bernhisel, and subsequently to
Linforth. Bernhisel foreclosed, making Smith and Linforth
defendants. Under a decree of the proper court, the premises were
sold by the United States marshal. Jennings became the purchaser,
and thereafter sold and conveyed to the appellant by deed bearing
date March 9, 1872. On the 24th of May, 1872, the appellant filed
her claim pursuant to law in the proper probate court for a
judgment to enable her to obtain a deed from the mayor for the
premises. Smith had before filed a claim also. On the 10th of July,
1872, the probate court decided in favor of Smith. She thereupon
appealed to the district court. The decision of the probate judge
was affirmed. She then appealed to the supreme court of the
territory. The judgment of the probate court was again affirmed,
and she thereupon removed the case by appeal to this Court.
The validity of the mortgage to Bernhisel is not controverted,
nor is it denied that if the foreclosure and sale divested Smith's
title, the judgment of the supreme court of the territory was
erroneous and must be reversed.
It was held by that court that the foreclosure proceedings were
void for two reasons:
First, that the mortgage was not sufficiently described
in the complainant's petition to warrant the decree
pro
confesso, which was taken.
Second, that the United States marshal, by whom the
original process in the case was served, the sale made and the deed
to the purchaser executed, had no authority to act in any wise in
the premises.
The first objection is clearly untenable, and has not been
insisted upon here. We therefore pass it by without further
notice.
The second objection is necessary to be considered.
There were two marshals in the territory -- one appointed by the
national government, the other under a territorial law. The former
was called the marshal of the United States, the latter, marshal of
the territory.
A question arose which officer was entitled to serve the
processes issuing from the local courts. A case was brought
Page 99 U. S. 24
in the proper district court to settle their respective claims.
On the 12th of May, 1870, that court decided that the right and
authority belonged exclusively to the marshal of the United States.
The supreme court of the territory, at its October Term in the same
year, affirmed this judgment. Such was then understood to be the
law, and the marshal of the United States proceeded in the
performance of his official functions, having the field to himself,
until the subject came under the consideration of this Court in
Clinton v.
Englebrecht, 13 Wall. 434. It was then held, on the
15th of April, 1872, that the marshal of the United States had such
authority only in cases where the United States were concerned.
It will thus be seen that the period of his recognized right and
of its uninterrupted exercise extended from May 12, 1870, to April
15, 1872. Within that time, all the proceedings in the Bernhisel
foreclosure case were had. The petition to foreclose was filed, the
process was issued and served upon Smith, the decree was taken, the
sale was made, and the marshal's deed was executed to Jennings.
During all this time, the marshal's acts were valid, as being those
of an officer
de facto. They were as much so as if they
had been done by him
de jure. These remarks apply with
full force to his acts as a ministerial officer in the Bernhisel
case. An officer
de facto is not a mere usurper, nor yet
within the sanction of law, but one who,
colore officii,
claims and assumes to exercise official authority, is reputed to
have it, and the community acquiesces accordingly.
Wilcox v.
Smith, 5 Wend. (N.Y.) 231;
Gilliam v. Reddick, 4
Ired. (N.C.) L. 368;
Brown v. Lunt, 37 Me. 423. Judicial
as well as ministerial officers may be in this position. Freeman on
Judgments, sec. 148. The acts of such officers are held to be valid
because the public good requires it. The principle wrongs no one. A
different rule would be a source of serious and lasting evils.
The marshal's sale and deed to Jennings extinguished the entire
right of Smith to the premises. Thereafter he stood to them in the
relation of a stranger. All the title which he possessed when the
mortgage was executed passed from him to Jennings, and from
Jennings to the appellant.
The Territorial Law of Utah of Feb. 17, 1869, Compiled
Page 99 U. S. 25
Laws of Utah 379, authorized to be passed by the act of Congress
before mentioned, gave to the party "entitled to the occupancy or
possession," as well as to the "occupant or occupants," the right
to apply for the judgment by the probate court, upon which, when
rendered, the mayor was to execute his deed. If this were not so,
the right would be clearly within the equity of the act of
Congress, and conferred by it.
The rejection of the appellant's claim and the adjudication in
favor of Smith, who had not then a shadow of right to the premises,
by the probate court was therefore a gross error, and the supreme
court of the territory repeated it by affirming the judgment.
The judgment of the latter court will therefore be reversed and
the cause remanded with directions to proceed in conformity to this
opinion, and it is
So ordered.
NOTE --
Hussey v. Merritt, appeal from the Supreme
Court of the Territory of Utah, was argued at the same time and by
the same counsel as was the preceding case. MR. JUSTICE SWAYNE
stated that the opinion in that case was decisive of this. The
cardinal question here, as there, was as to the validity of the
proceedings touching the sale under the Bernhisel mortgage, and the
result must be the same.
