Citation Numbers: 30 F. 660
Judges: Brewer
Filed Date: 5/6/1887
Status: Precedential
Modified Date: 9/9/2022
The defendant holds the legal title to the E. J of the N. E. i of section 31, township 18, range 10, in Washington county, having received a patent therefor on March 26, 1875. The complainant claims to be the equitable owner, and brings this bill praying for a decree, adjudging that the defendant holds this legal title in trust, and ordering a conveyance of such title to himself.
The facts are these: On December 16, 1863, defendant filed in the department of the interior a certified map, showing the general route of its line of road for the first hundred miles west of the Missouri river, and on the twenty-fourth day of October, 1864, filed its map showing the definite location of such road. The land in controversy is within the limits of the land grant of defendant, and was patented to it as a part of its grant under the acts of July 1, 1862, and July 2, 1864. Prior to the fifing of the map of the general route, as above stated, and on -the first
From these facts it appears that the land was subject to a homestead claim and pre-emption entry at the time of the filing of the map of the general route, which claims had ripened into a final entry and payment prior to the filing of the map of the definite location.
The case of Kansas Pac. Ry. Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Sup. Ct. Rep. 566, is decisive of the fact that this tract was not within the land grant to the defendant, and was therefore erroneously patented to it. Counsel for defendant does not seriously controvert this, but insists that complainant has no equity which enables him to challenge defendant’s legal title, and for two reasons:
First. The order of the commissioner, canceling his (complainant’s) entry was an adjudication from which no appeal was taken, and is therefore conclusive against complainant’s rights. Two satisfactory answers exist to this claim: (1) The act of congress providing appeals from the decision of the commissioner of the general land-office applies in terms only to contests between settlers for the right of pre-emption. Rev. St. § 2273. (2) It is elemental that, to make a decision binding upon
a party, he must have his day in court. This order of cancellation was made without notice to complainant, and was unknown to him until months thereafter; and it would be novel to hold a party bound by a decision of which lio had no knowledge, and in a proceeding of which he liad no notice, actual or constructive. Further, the decision of the land department is conclusive only upon questions of facts, and does not finally determine the law. Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U. S. 330; Moore v. Robbins, 96 U. S. 530; Marquez v. Frisbie, 101 U. S. 476. In this case the facts were undisputed, and the only question is as to the proper application of the law to the facts, and that is a question which the courts uniformly insist upon the right to determine.
Secondly, it is insisted that, at the time of the final entry by complainant, the land bad been withdrawn from private sale, and therefore under section 5, p. 702, 10 U. S. St. at Large, could not be paid for by a land-warrant. I do not so understand the law. Obviously this land
I think, therefore, that complainant’s equitable title was perfect, and that he is entitled to a decree as prayed for.