SMITII V. EWING.
injury, must always defeat the action; but the nature of the primary wrong has much to do with the judgment, whether or not the alleged contributory fault was blameworthy. If it was of a negative character, such as lack of vigilance, and was itself caused by, or would have existed, or no injury would have resulted from it, but for the primary wrong, it ought not, in reason, and I believe is not, in law, to be charged to the injured one, but rather to the original wrongdoer. This seems to be the meaning of the Indiana supreme court in tlie case of Chicago a: E. R. Co. v. Boggs, decided February 18, 1885, and supported by the following among other citations: Railway Co. v. MaTtin, 82 Ind. 476; Railway Co. v. Yundt, 78 Ind. 376; City v. Gaston, 58 Ind. 224; Beisiegel v. RailToad Co. 34 N. Y. 622; Owen v. RailToad Co. 35 N. Y. 516; Ernst v. RailToad Co. 39 N. Y. 61; Davenport v. Ruckman, 3'7 N. Y. 568; Kennayde v. Railroad Co. 45 Mo. 255; Pennsylvania B. Co. v. OgicT, 35 Pa. St. 71; French v. Taunton B. R. B. 116 Mass. 537; Sweeny v. Railroad Co. 10 Allen, 368. It would not be correct, I think, to say on this subject that citizens have an unqualified right to act upon the presumption that railroad trains and other dangerous agencies will always be operated with the care and vigilance required by law or custom. Experience too often proves the contrary; and ordinarily prudent men will not, and with out negligence do not, go upon railroad and highway crossings, or into like dangerous situations, without precautions against negligence on the part of those in charge of the dangerous agencies. But every case must be determined upon its own circumstances; and for the reasons already indicated I do not think that the injury suffered by the petitioner in this instance is, in the sense of the law, shown to be attributable to the fault of his agent. The damages are shown to have been $85, and for that amount the claim should be allowed. Ordered accordingly. ·
EWING and another.
June 1, 1885.)
CEIlTIFICATE OF PFUCHASE UNDER PnE-RMPTION LAW.
A certificate of purchase issued in due form, in favor of a pre-emptor, for land subject to (;utry under the pre-emption law, cannot be canceled or set aside by thc land department fQr alleged fraud in obtaining it; but in such case the government must seek redress in the courts, where the matter may be heard and determined according to the law applicable to the rights of individuals in like circumstances. .
Semble, that a purchaser in good faith, and for a valuable consideration, from a pre-emptor of the land included in the latter's certificate of purchase takes the same purged of any fraud which might have been committed in obtaining said certificateo
Suit to Determine Estate in Real Property and for an Injunction. John J. Balleray and J. M. Bower, for plaintiff. James F. Watson, for defendants. DEADY, J. This suit is brought by a citizen of Georgia, to obtain a decree enjoining the defendants, who are citizens of Oregon, from trespassing on certain lands situate in Umatilla county, Oregon, and that any claim they may have thereto may be declared null and void. The defendants answered separately, and the cause was heard on exceptions to the answer of the defendant Ewing for impertinence: It appears from the bill that on Angust 20, 1881, Arthur Webb settled, as a pre-emptor under the laws of the United States, on and improved the S. l of theN. E. :t and the N. t of the S. E. :t of section 2, in township 2 N., of range 32 E. of the Wallamet meridian, and on the following day filed in the local land-office at La Grande his declaratory statement therefor; that on July 29,1882, after due publication of notice thereof, Webb made his final proof of such settlement and improvement to the satisfaction of the register and receiver of said office, and paid for the land at the rate of $2.50 per acre, or $396.20 in all, for which he received from said receiver "a certificate of purchase and entry of said land as by law required." which on July 31, 1882, was duly recorded in the county clerk's office; that on the same day D. K. Smith purchased said land from said Webb, in good faith and for a valuable consideration, to-wit, $2,000; and took a conveyance thereof from said Webb, which was duly recorded on the same day; that on Decembel' 1, 1884, the plaintiff purchased said land from said Smith, subject to a mortgage thereon given to the American Mortgage Company of $1,000, in good faith and for valuable consideration, to-wit, $1,000, and received a conveyance thereof from said Smith; and is now the owner and in possession of the premises, which are valuable for agricultural purposes and reasonably worth $5,500; that on or about July 10, 1883, the defendant Ewing wrongfully entered on the premises and built a dwellinghouse thereon, in which he has since and now resides, and cultivates about five acres thereof and cuts timber thereon; and that he denies the plaintiff's title and interest in said land, and disputes his possession thereof, and claims an estate or interest therein adverse to tho plaintiff. By his answer, the defendant Ewing admits that Webb erected a building on the premises, and filed a declaratory statement thereon and entered the same, as a pre-emptor, as alleged in the bill; but denies that the plaintiff, or those under whom he claims, were ever the owners of the premises, or that the plaintiff is in possession of the same; and alleges that on April 21, 1876, he, being duly entitled to the benefit of the pre-emption law, settled on the premises nnder said law and filed his declaratory statement thereon; and afterwards, on December 4, 1876, with the permission of the register and receiver, "duly changed" "said entry,"-meaning, I suppose, said "declaratory
SMITH V. EWING.
statement;" that the settlement and entry of Webb was in "conflict" with that of Ewing's, as changed on December 4th; that soon a.fterthe entry of the premises by Webb, but when is not stated, the defendant applied to the register and receiver to contest "the claim" of the former to the land included in his "declaratory statement and pretended entry upon the grounds above stated;" that thereafter such proceedings were had on such application that a contest was ordered thereon by the commissioner of the general land-office, and a hearing had before the register and receiver on January 17, 1883, who thereupon decided that neither said Webb nor said Ewing had complied with the pre-emption law in the matter of residence, cultivation, and improvement, and recommended "the cancellation of the filings and entries of both of said parties by the commissioner;" that Webb appealed from said decision to the commissioner, who affirmed the same, and from there took the case to the secretal'Y of the interior, where D. K. Smith, the grantor of the plaintiff, intervened for his rights as a purchaser from Webb, as alleged in the bill herein, and asked that a patent for the land included in the declaratory sta'tement of the latter be issued to him, but the secretary denied said application, and on February 21, 1884, affirmed the decision of the commissioner, and that thereupon said filings and entries were canceled by said commissioner, and "all rights thereunder wholly annulled;" and that by reason of such contest and cancellation, the defendant became entitled under the law to enter said lands within 30 days from the date of said cancellation, and that he did within such period, to-wit, on March 17, 1884, apply to said land-office "to enter said tract as a homestead," whi0h application was allowed; whereupon he "commenced to reside upon and cultivate and improve said land as a homestead," and has ever since continued to do the same. The plaintiff excepts to so much of this answer as sets up the settlement and filing of Ewing on the premises in 1876, the contest thereabout with Webb in 1883, and the decisions thereon, and his subsequent entry of the land as a homestead, as impertinent. The ground on which this exception is based is that as soon as Webb entered the land at the localland-oflice, and received the certificate of purchase, it became his property; the legal title remaining in the vendor in trust for him until the patent should issue in due course of proceeding. That while any person interested may appear on the notice of final proof required by the act of March 3, 1879, (20 St. 472,) and contest the right of a settler to become a purchaser under the pre-emption law, and thereby prevent a certificate of purchase from being issued to such settler, or cause the same to be canceled on an appeal from the decision of the 10calland-ofDce allowing the entry to he made, yet the government of the United States, having satisfied itself through its local agents, in the manner provided by law, that Webb was entitled, under the pre-emption law, to purchase the land, and having thereupon sold it to him, cannot institute a contest in
the land department between the purchaser and anyone else, or even itself, to set aside, cancel,-or recall said certificate. Section 2273 of the Revised Statutes gives the register and receiver the right to determine "all questions as to the right of pre-emption arising between different settlers" on "the same tract of land," saving the right of appeal to the commissioner and the secretary of the interior. But at the date of Webb's entry and this alleged contest, Ewing's claim to the premises under his filing in 1876 was forfeited for want of final proof and payment within 30 months thereafter. Section 2267, Rev. St. He was then a stranger to the proceeding, and without interest in or relation to the land. No question could arise between Webb and him, as settlers thereon, nor as to the right of either to pre-empt the same. By reason of his neglect to make his final proof and payment, the effect of Ewing's filing had ceased, and he had long lost his status as a claimant under the pre-emption law. Therefore this proceeding in the land department that resulted in the attempted cancellation of Webb's certificate must be regarded, not as a 'contest under section 2273 of the Revised Statutes between two settlers on the same tract of land, but as an ex parte proceeding, instituted by the commissioner for the purpose of canceling Webb's certificate, upon the suggestion of a stranger that it was fraudulently obtained. The fact that Webb saw proper to participate in it with a view of protecting his certificate, does not affect its character in this respect. Has the commissioner any such power? It is not given to him in terms by any act of congress that I am aware of. His right to pass upon conflicting claims to land under the pre-emption law seems confined to cases that come before him on appeal from the decision of the register and receiver, in case of a contest between two or more settlers undel' such law. Doubtless the commissioner may also refuse to give effect to a certificate, and issue a patent thereon, when it appears from the face thereof, or the proof accompanying it, that it was issued contrary to law. But if the land is open to pre-emption, and the proof is formally sufficient, as that it is made by the oaths of the proper and prescribed number of witnesses to the necessary facts, the commissioner cannot disallow the certificate, or refuse to issue a patent thereon because the proof is not satisfactory to his mind, or because it is suggested to him that it is false. The law devolves the determination of that question on the register and receiver, (Rev. St. § 2263,) and it can only come before the commissioner on an appeal from their decision by a party to a contest before them. When .a certificate of purchase has been issued to a pre-emptor in due form, and no appeal has been taken from the decision or action of the register and receiver, the land described in the certificate becomes the property of the pre-emptor. He has the equitable title thereto, and has a right to the legal one as soon as the patent can .issue in the due course of proceeding; and he dispose of the
3MITH V. EWING.
same, and pass his interest therein, as if the purchase had been made from a private person. Carroll v. Safford, 3 How. 460; Myers v. Groft, 13 Wall. 291; Camp v. Smith, 2 Minn. 155, (Gil. 131;) Cornelius v. Kessel, 58 Wis. 237; S. C. 16 N. W. REP. 550; Brill v. Stiles, 35 Ill. 309; Sillyman v. King, 36 Iowa, 207; Moyer v. McCullough, 1 Ind.
In Carron v. Safford it was ruled that land held under a certificate of purchase from the United States land-office was subject to state taxation as the property of the purchaser. In delivering the opinion of the court, Mr. Justice McLEAN said:
"When the land was purchased and paid for it was no longer the property of the United Stated, but of the purchaser. He held it for a final certificate, which could no more be canceled by the United States than a patent. It is true, if the land had been prflviously sold by the United States or reserved from sale, the certificate or patent might be recalled by the United States. as having been issued through mistake. In this respect there is no difference between the certificate holder and the patentee."
In Moore v. Robbins, 96 U. S. 538, it was held that a patent, issued by the land department, acting within the scope of its authority, passes the legal title to the land, and all control of the executive department of the government over the title thereafter ceases; that if any wrong has been done to the United States, the courts of justice are open to it, as in the case of an individual, to have redress by cancellation of the patent or reconveyance of the land. But whether a final certificate or certificate of purchase, issued in due form to a pre-emptor or other purchaser of public land by the register and receiver of a local land-office, is within this rule, subject to the right of the commissioner or secretary to modify or set the same aside upon a direct appeal to either of them, the supreme court has not decided, that I am aware of. The cases of Lytle v. Arkansas, 9 How. 314, Garland v. Wynn,20 How. 6, and Harkness v. Underhill, 1 Black, 316, have been cited and considered, but however they may bear on the question, they are not, in my judgment, decisive of it. To my mind, the certificate of purchase, subject to the conditlOn mentioned, is within the reason of tne rule laid down in Moore v. Robbins, in the case of a patent. The issue of a patent or final conveyance on such a certificate is a mere ministerial act, of which the purchaser, in the case of private parties, might compel the performance. Several of the state courts have decided that the certificate of purchase, when issued in due form, for land subject to entry, is beyond the power of the commissioner, otherwise than on a direct appeal from the register and receiver. In Perry v. O'Hanlon, 11 Mo. 585, the supreme court of Missouri held that a cancellation of a preemption certificate by the commissioner was a nullity. To the same effect is the ruling in Brill v. Stiles, 35 Ill. 309; Cornelius v. Kessel, 58 Wis. 241; S. C. 16 N. W. Rep. 550. The stateI:!lent in the answer as to the time and manner of insti-
tuting the alleged contest with Webb seems purposely obscnre. The hearing therein, before the register and receiver, appears to have been had in January, 1883; while it appears from a notice signed by the register of Webb's application to make final proof, addressed to Ewing at " Bio Vista, California," and annexed to a written brief filed by him herein, that he was living in California as late as August, 1882. So that instead of being "soon after," it must have been more than t1 year after the certificate was issued to Webb that Ewing returned to Oregon and applied for leave to contest former's entry. But assuming, as I do, that the proceeding before the register and reo e(jiver was had on the direction of the commissioner, without the authority of law, the cancellation of Webb's certificate of purchase and Ewing's subsequent entry of the premises under the homestead law are mere nullities. This being so, the exceptions for impertinence are well taken. The matter embraced in them is altogether immaterial, and not a defense to the relief sought by the bill. Neither does it appear from Ewing's answer that the second or changed filing of December 4:, 1876, was for the land in question. The allegation is that on that day, with the consent of the register and receiver, he changed his declaratory statement, but how much or wherein is not stated. In the opinion of the secretary, which is annexed to the answer as an exhibit, however, it crops out incidentally that the change consisted in throwing out the S. W. t of the N. W. t of the section, and adding thereto lots 6 and 7 of the same. Nothing definite can be ascertained from this without reference to the plat of public survey of the section, from which it appears that the boundary line of the Umatilla reservation cuts off the south-east corner of it, leaving the S. E. t of the S. F.. t a mere fraction containing 3.32 acres, and known as lot 6; and the N. E. t of the S. E. t. also a fraction, containing 38.H acres, and known as lot 7. Practically, then, the second or changed Ewing statement includes three of the four 40-acre tracts included in Webb's purchase, and lot 6 of the same section. Whether this was "a second declaration for another tract" within the prohibition contained in section 2261 of the Revised Statutes is a question. Certainly it was not for the same tract as the first filing, though not wholly for "another" or different one. On the' argument counsel for the plaintiff laid great stress on the · fact, as he assumed it to be, that he was a pnrchaser in good faith for .u, valuable consideration, claiming that, as the defendant had not answered the allegation of the bill to that effect, it was admitted to be true. But such is not the rule in equity pleading, though it would be very convenient if it were so. An allegation in a bill which is neither admitted nor denied by the answer is still only an allegation, and must be proved before the plaintiff can have any relief based on it. If he wishes to prove it by the answer of the defendant, be can compel the latter to testify upon the point by excepting to the answer for insufficiency.
S:IIITfI V. EWING.
The exception made in section 2262 of the Revised Statutes, in favor of a bonafide purchase for a valuable consideration from a person holding a certificate of purchase under the pre-emption law, is only against the forfeiture of the land denounced by that section on account of the falsity of the oath thereby required of the settler as to his right to enter land under the pre-emption law, and his purpose in doing so. But in this case it was alleged that the pre-emptor never complied with the law as to residence, improvement, and cultivation, and that the certificate of purchase was issued to him upon false or insufficient proofs of these facts. To such a case section 2262 does not appear applicable. But at common law, where a party obtaining a conveyance of real property by a fraud practiced upon the grantor conveys the same to a third person, who buys in good faith and for a valuable consideration, the latter will hold the property purged of the fraud. Fletcher v. Peck, 6 Cranch, 133; Somes v. Brewer, 2 Pick. 184; Deputy v. Stapleford, 19 Cal. 302; 2 Story, Eg. Jur. § 1502; 2 Washb. Real Prop. 597. And in U. S. v. Minor, 5 Sup. Ct. Rep. 836, lately decided by the supreme court, it is said that when a person obtains a patent for land under the pre-emption law by "fraud and perjury, it is enough to hold that it conveys the legal title; and it would be going quite too far to say that it cannot be assailed by a proceeding in equity, and set aside as void if the fraud is proved and there are no innocent purcha,sers for value." But whether this rule is applicable to a purchase made from a preemptor 'after entry and before patent issues may be a question. Regarding the sale of the land, however, as completed when the proof of compliance with the law is made to the satisfaction of the agents of the vendor,-the register and receiver,-and the purchase price paid to them, my impression is that an innocent purchaser for a valuable consideration from the party having the certificate of purchase takes the land, and the right to the patent, purged of any fraud that may have been committed by his grantor in obtaining such certificate. Of course, where the invali<iity of the certificate is apparent on its face or is a matter of law, of which all persons are presumed to have knowledge, the purchaser would take with notice of such invalidity, and be bound by it accordingly. But be this as it may, my conclusion is that a certificate of purchase issued indue form, in favor of a pre-emptor, for land subject to entry under the pre-emption law cannot be canceled or set aside by the land department for alleged fraud in obtaining it; and that in such case the government must seek redress in the courts, where the matter may be heard ancl determined according to the law applicable to the rights of individuals under like circumstances. The right of' a party holding a certificate of purchase of public land, and that of his grantee, is a right in and to property of which neither of them can or ought to be deprived without due process of law. The exceptions to the answer are allowed.
FEDERAL REPORTER. UNITED STATES
KANE and others.
(Circuit Court, D. Colorado.
RECEIVERS - INTERFERENCE OF STRIKERS -INDUCING EMPLOYES SEltVlCE-CONTEMPT.
Where employes of a railroad company that is in the hands of a receiver appointer! by the court, are dissatisfied with the wages paid by the receiver, they may abandon the employment, and by persuasion or argument induce other employes to do the same; but if they resort to or violence to induce the others to leave, or accomplish their purpose, without (wtuall1iolence, by overawmg the others by preconcerted demonstrations of force, and thus prevent the receiver from operating the road, they are guilty of a contempt of court, and may be punished for their unlawful acts.
2. S.UIE-CONSPIHAOY TO DO UNLAWFUL ACT-LH.BILITY OF ALL FOR ACTS OF INDIVIDUAL CONSPIRATOU.
Where a party of men combine with intent to do an unlawful thing. and in tlle prosecution of that unlawful intent one of the party goes a step beyond the balance of the party and does acts which the balance do not themselves perform, all are responsible for what the one does. It is essential, however, that there should be a concert of action,-an agreement to do some unlawful thing.
II. II. Hobson, U. S. Diat. Atty., and E. O. Wolcott, for receiver. llalph l'albot, for defendants. BREWER, J., (urally.) Now, coming to these contempt cases, the stenographer very kindly copied out all his notes last night and furnished the transcript to me; so I have had an opportunity to read over the testimony, and I have done it very carefully. I think a few preliminary considerations, in reference to the common rights which we all have as free men in this country, may not be amiss. Every man has a right to work for whom he pleases, and to go where he pleases, and to do what he pleases, providing, in so doing, he does not trespass on the rights of others. And every man who seeks another to work for him has a right to contract with that man, to make such an agreement with him as will be mutually satisfactory; and unless he has made a contract binding him to a stipulated time, he may rightfully say to such employe at any time, "I have no further need of your services." Now, it is well to come down to simple things. Supposing 1'11'. Wheeler has a little farm of 20 acres. He comes to Mr. Orr and says to him, "Here, work for me, will you?" and Mr. Orr goes to work for him under Borne contract. Now, everyone of us realizes the fact that if Mr. Orr is tired of working there, if he does not think tho pay is satisfactory, or if it is a mere whim of his, he has a right to say, "Mr. Wheeler, I won't work for you any more," and Mr. Wheeler would have no right to do anything. Mr. Orr is a free man, and can work for whom he plea:ses, and as long as he pleases, and quit when he pleases; and that right which Mr. Orr has Mr. Wheeler has also. The fact that Mr. Wheeler happens to be an employer does not abridge his freedom. If he is tired of Mr. Orr's work, or if he dislikes the man, or if he does not want any more of his assistance on his