In Wisconsin, an equitable defense may be set up in an action at
law, but it must be separately stated, in order that it may be
considered on its distinctive merits and in order that, if
established, the appropriate relief may be administered.
When, under the practice prevailing in a state, an equitable
defense is set up in an action for the possession of land, the
grounds set forth must he sufficient to entitle the defendant to a
decree that the property be transferred from the plaintiff to him,
or that the plaintiff be enjoined from prosecuting the action for
the possession of the property.
Page 128 U. S. 457
When an entry is made of two or more tracts, one of which is not
at the disposal of the United States by reason of being within a
swamp land grant to a state, the validity of the entry of the
remainder is not affected thereby.
When an entry is made upon public land subject to entry, and the
purchase money for it is paid, the United States then holds the
legal title for the benefit of the purchaser, and is bound, on
proper application, to issue to him a patent therefor, and if they
afterwards convey that title to another, the purchaser, with
notice, takes subject to the equitable claim of the first
purchaser, who can compel its transfer to him.
The power of supervision possessed by the Commissioner of the
General Land Office over the acts of the register and receiver of
the local land offices is not unlimited or arbitrary, but can only
be exerted when an entry is made upon false testimony or without
authority of law, and cannot be exercised so as to deprive a person
of land lawfully entered and paid for.
When the Commissioner of the General Land Office, without
authority of law, makes an order for the cancellation of an entry
of public land made in accordance with law and accompanied by the
payment of the purchase money, the person making the entry and
those claiming under him can stand upon it, and are not obliged to
invoke the subsequent reinstatement of the entry by the
Commissioner.
The case is stated in the opinion of the Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
This case comes to us from the Supreme Court of Wisconsin. It is
an action for the possession of forty acres of land, being part of
a quarter-section in Township 16 of Range 20, in the County of
Sheboygan in that state, and was brought in the circuit court of
that county. The complaint alleges that the plaintiff has the
lawful title, as the owner in fee simple, and the right to the
possession of the demanded premises, and that the defendant
wrongfully withholds them from him, to his damage of three hundred
dollars. It therefore prays that the defendant may be adjudged to
surrender to the plaintiff their possession and to pay the said
damages.
In support of his alleged title, the plaintiff relies on a
patent
Page 128 U. S. 458
of the United States for a tract embracing the demanded
premises, issued to one Myron H. Puffer on the 4th of June, 1877,
upon a homestead entry made by him in December of the previous
year, and sundry mesne conveyances from the patentee.
The answer of the defendant admits that she was in possession of
the premises at the commencement of the action, but denies
generally and specifically the other allegations of the complaint
and pleads, in bar of the action, an entry upon the premises by her
and those through whom she derives her interest under claim of
title, exclusive of any other right, founded upon a written
instrument as a conveyance thereof, and their occupation under such
claim for more than ten years prior to the commencement of the
action.
The answer also sets forth, under a separate heading or count,
by way of counterclaim, various matters, which the defendant claims
constitute in equity a defense to the action and entitle her to a
decree that she has a right to the title and possession of the
premises. Those matters, briefly stated, are substantially as
follows:
In January, 1856, one Henry I. Davidson entered two tracts of
land in Township 16 of Range 20, in Sheboygan County, one of which
constitutes the premises in controversy, as public lands of the
United States, subject to entry, paid the full purchase price to
the receiver of the land office for the district, and obtained from
him the usual duplicate receipt therefor, which was duly recorded
in the office of register of deeds of the county in April, 1857.
Subsequently Davidson and his wife conveyed the tract in
controversy to one Joseph Hein, and from him, through sundry mesne
conveyances, all of which are on record in the register's office of
the county, the property, in October, 1869, became vested in Jacob
Kessel, the husband of the defendant. Kessel died, in July, 1876,
in possession of and thus owning the premises, leaving the
defendant, as his widow, and four children surviving him. By his
last will and testament, which has been admitted to probate, he
devised to the defendant a life estate in the premises in
controversy, and she is now in possession, holding the same
thereunder, the fee thereof being in the
Page 128 U. S. 459
children, subject to her life estate. And she alleges that, from
the time of the entry by Davidson down to the death of Kessel,
there was an uninterrupted possession and claim of title by Kessel
and his predecessors, and that valuable improvements were made
thereunder, without their knowledge of any adverse claim or of the
assertion of interest of any kind.
In October, 1857, an order was made by the Commissioner of the
General Land Office cancelling the entry of Davidson for the two
tracts of land on the alleged ground that one of them -- not the
tract embracing the premises in controversy -- was included in a
prior grant to the state, and therefore was not subject to entry.
The order of cancellation was made without previous notice of any
kind to Davidson, or any party in interest under the entry, and the
purchase money paid was never returned or offered to him or to any
of his successors in interest, and the defendant contends that the
order was erroneously and improperly made. The Commissioner of the
General Land Office afterwards came to the same conclusion, and in
June, 1879, he directed the entry to be reinstated as to the tract
which had not been previously granted to the state -- that is, the
tract in controversy in this case. It was between the cancellation
and the reinstatement of the entry as to this tract that the
homestead entry was made by Myron H. Puffer, and the patent issued
to him.
The answer also imputes fraudulent conduct to the register or
receiver of the land office of the district, alleging on
information and belief that the entry of Puffer was made in his
interest; but it is not deemed necessary to repeat the imputations.
It concludes with a prayer that the title to the premises may be
adjudged to have been in Jacob Kessel at the time of his death, and
that the defendant is entitled to the possession thereof, or that
such other and further relief be granted as may be just.
The practice of setting up, in actions at law, defenses, whether
of a legal or equitable character, is permissible under the laws of
Wisconsin. They are required, however, to be separately stated,
that they may be considered on their distinctive merits, and, if
established, that the appropriate relief may be administered.
Page 128 U. S. 460
When, as in this instance, the action is for the possession of
land, the grounds set forth must be sufficient to entitle the
defendant to a decree that the title of the property be transferred
from the plaintiff to him, or that the plaintiff be enjoined from
prosecuting the action for the possession of the property. The
equitable defense is therefore to be first considered and
determined, for, if sustained, there will be no occasion for
proceeding with the remedy at law,
Quinby v. Conlan,
104 U. S. 420, and
that course was pursued in the present case. The court took up the
matters alleged as grounds for equitable relief and considered the
evidence adduced in their support, and it thereupon found that the
allegations of the answer as to those matters were sustained in all
particulars. Judgment was accordingly rendered in favor of the
defendant, declaring that the entry of Myron H. Puffer, and the
patent thereon issued to him, were null and of no effect as a
conveyance of the premises; that the defendant's testator died
vested with an equitable title to them and entitled to their
possession and to a patent therefor from the United States and that
the defendant has such estate and possession during her life, and
directing that the complaint of the plaintiff be dismissed with
costs. On appeal to the supreme court of the state, the judgment
was affirmed.
The forty acres in controversy were subject to entry in January,
1856, when Davidson entered them, together with another tract. The
validity of the entry of those acres was not affected by the fact
that the second tract belonged to the State of Wisconsin under the
swamp land grant, and was not therefore subject to the disposal of
the United States. A defect in the title of one of several parcels
sold does not invalidate the sale of the others if the purchaser
makes no objection. When the tract, which was subject to entry, was
thus purchased and paid for, it ceased to be subject to the
disposal of the United States; it was not in equity their property.
Carroll v.
Safford, 3 How. 441,
44 U. S. 460;
Witherspoon v.
Duncan, 4 Wall. 210,
71 U. S. 218.
The legal title, it is true, was retained by them; but they held it
as trustee, for the benefit of the purchaser, and they were bound
upon proper application
Page 128 U. S. 461
to issue to him a patent therefor. If, from inadvertence or
mistake as to their rights or other cause, they afterwards conveyed
that title to another, the grantee with notice took it subject to
the equitable claim of the first purchaser, who could compel its
transfer to him. In all such cases, a court of equity will convert
the second purchaser into a trustee of the true owner, and compel
him to convey the legal title.
Lindsey v.
Hawes, 2 Black 554;
Stark v.
Starrs, 6 Wall. 402,
73 U. S.
419.
The power of supervision possessed by the Commissioner of the
General Land Office over the acts of the register and receiver of
the local land offices in the disposition of the public lands
undoubtedly authorizes him to correct and annul entries of land
allowed by them, where the lands are not subject to entry or the
parties do not possess the qualifications required, or have
previously entered all that the law permits. The exercise of this
power is necessary to the due administration of the Land
Department. If an investigation of the validity of such entries
were required in the courts of law before they could be cancelled,
the necessary delays attending the examination would greatly
impair, if not destroy, the efficiency of the department. But the
power of supervision and correction is not an unlimited or an
arbitrary power. It can be exerted only when the entry was made
upon false testimony or without authority of law. It cannot be
exercised so as to deprive any person of land lawfully entered and
paid for. By such entry and payment, the purchaser secures a vested
interest in the property and a right to a patent therefor, and can
no more be deprived of it by order of the commissioner than he can
be deprived by such order of any other lawfully acquired property.
And attempted deprivation in that way of such interest will be
corrected whenever the matter is presented so that the judiciary
can act upon it.
In
Lindsey v. Hawes, we have a noted instance, in which
the court inquired into the facts of a disputed entry of public
lands and gave effect to a lawful entry which had been set aside
and the certificate issued cancelled by order of the Commissioner
of the General Land Office. In that case, it appeared that Lindsey
had, in 1839, applied to the register
Page 128 U. S. 462
and receiver of the land office at Galena to purchase land,
claiming the right of preemption under the act of 1838 by reason of
cultivation and actual residence thereon, and, having established
his claim to the satisfaction of those officers, he received from
them, in June, 1839, the proper certificate, stating the receipt of
the purchase money, and that on its presentation to the
Commissioner of the General Land Office, he would be entitled to a
patent. Subsequently, in 1845, the commissioner set aside this
entry and ordered the certificate to be cancelled on the ground
that a mistake had been made in the original survey of the land,
and that by a new survey, ordered in 1844, it was ascertained, as
he supposed, that the house in which Lindsey resided when he made
his claim in 1839 was not on the land for which he received his
certificate. After this, one Hawes claimed a preemption right to
the same land, and the commissioner directed the register and
receiver to hear proof of his right and to adjudicate upon it. They
accordingly heard his proof and gave him a certificate, upon which
a patent was afterwards issued to him. Lindsey died in the same
year in which he made his entry, and his heirs, who had no notice
of the new survey made five years afterwards or of the proceedings
by which Hawes established his claim before the register and
receiver brought suit against Hawes, and grantees from him, to
compel a transfer by them of the title obtained by the patent. It
appeared that the residence of Lindsey was on the line which,
according to the new survey, divided the quarter-section he entered
from an adjoining quarter-section, so that in one sense it may be
said that he resided on both quarter-sections. The court held that
the government was bound by the original survey; that Lindsey's
residence was sufficiently on the section which he claimed; that
the patent certificate was rightfully issued to him; that the act
of the commissioner in setting it aside was illegal, and did not
destroy the right thus vested; that the land was not therefore
subject to entry by Hawes; that the patent obtained by him was
wrongfully and illegally issued to him, and that the heirs of
Lindsey were entitled to a conveyance of the legal title from him
and his codefendants.
Page 128 U. S. 463
That case covers the present one in all essential particulars.
The interest of Davidson in the tract which embraces the premises
in controversy, acquired by him by his entry, was not lost or
impaired by the order directing its cancellation. That order was
illegally made, and those claiming under him can stand upon the
original entry, and are not obliged to invoke the subsequent
reinstatement of the entry by the commissioner. As that entry, with
the payment of the purchase money, gave Davidson a right to a
patent from the United States, his heirs are entitled to a
conveyance of the legal title from those holding under the patent
wrongfully issued to Puffer.
Whether Davidson or his successors would have had a right to
surrender his entry upon learning that one of the tracts entered
had been previously granted to the state, and claim a return of the
purchase money, is a question that does not arise here. It is
sufficient to say that until such objection was raised by them, it
did not lie with the Land Department to oppose the completion of
his title to the tract which was subject to entry. The judgment
entered in the court below would have been in better form had it
directed a conveyance to the heirs of Jacob Kessel, subject to the
life estate of the defendant, from those holding under the patent
to Puffer, of the legal title which he had acquired to that portion
which was subject to entry. The heirs would thus avoid the
necessity of applying to the Land Department for a patent which it
might refuse to issue until the patent already issued had been
cancelled by judicial proceedings.
The supreme court of the state makes some comment upon the form
of the judgment, but observes that there is nothing in it of which
the plaintiff can complain. He cannot be prejudiced by the
cancellation of the patent, because the legal title vested in him
by that instrument must inure to those who have the superior right
to it. The judgment is therefore
Affirmed.