WILSON 11. FINE.
said entry and certificate are illegal and void,-of all which the plaintiff had notice before the date of the conveyance from Alexander. The second defense is that the officers of the land-office at Lakeview, Or., "having been informed," after the issue of the certificate to Alexander, that he had acquired a quarter section of land under the homestead law prior to his settlement on the premises, set aside and canceled said entry and certificate, and reported the facts to the commissioner of the general land-office, who thereupon canceled said entry and certificate on April 27,1889; that said Aiexander was duly notified of said "proceeding" before said officers, and appeared and was heard therein; that about January 1, 1889, the defendant, "with the advice and consent" of the register and receiver, settled on the premises with the intention of claiming the same under the homestead law, he being qualified so to do, and "went into the peaceable possession of the same, and ever since has been and,now is in possession of such land, as such settler,and is entitled to remain in the. possession thereof in accordance with the provisions of said Jaw and the regulation of the interior deparhnent, and within the time allowed by law he offered to file his horr.estead application and perfect his entry" in the land-office at Lakeview, "and has been instructed and advised by the commissioner of the generalland-oflice to remain in possession of said land, as such settler, and that be was at the time of the commencement of this action, and ever since has been, and is now, in the possession of the land described in the cpmplaint, under the authority and by the direction of the department of the in. terior and the commissioner of the "-of all which the plaintiff had notice at the time of the conveyance to him from.Alexander. To these defenses a demurrer is interposed. The second defense will be considered first. It admits, by necessary implication, that Alexander obtained the certificate for the land under the homestead act by complying with the provision!.'! thereof, including the payment afthe price and the five years' residence and cultivation, about February, 1886. To avoid the effect of these facts it is alleged in the defense that the officers of the district land.office, "having been informed" that ·der had had the benefit of. the homestead act,of their own motion insti. tuted a "proceeding" to set aside and cancel said certificate on that ae.count, which was done, and reported to the commissioner, who, on their recommendation, affirmed their action. It matters not what advice or direction was given the defendant by any officer of the land department cqncerning the possession of tha premises. Neither of tpem had any power or Ituthority to authorize or direct him to take possession of the land, and it is not credible that they did do so. If the law and the 1ilCts warranted him in taking possession of the premises, wtIl and good; otherwise not. The fiat of an ·officer of the land department is llot]aw, nor is this a government by Pasha. "proceeding" to cancel Alexander's. entry and I think -eertificatewasan arbitrary and illegal one. There was no contest about
'law atitl10Hzes the register and receiver to hear and decide,. subject to an appellitty the commissionel' and ·thence to the secretary of the Interior. eertHicatehad issued without objeotion, the time for a contest had passed·. Upon its issue the, land became the property of Alexander, and he was entitled to the patent therefor.Sitch arIght cannot be arbitrarily set aside, canceled, al1davoided by the land department, in a "proceeding" self-instituted on mere hearsay.. ' Nor does it signify that the party had notice of the "proceeding," and took part in it. Onefuay defend one's life or property when it is attilcked, without acknowledging the legality of the 'attack or"proceeding," 61' being bound by the result of it. If Alexander was nOt entitled to 'make the entry for the reason tbl1-t he had already had the benefit of the act, the certificate may be set aside on that- ground in the courts, where the matter maybe heard and determined according to the law applicable to the rights of individuals, undel" like circumstances. ' Smith v·. Ewing, llSawy. 56, 23 Fed. Rep. In thlsoase I had occasion to consider this question of the power of the land department, of its 6wn motion, to recall, set aside, or cancel a certificate of purchase of public lands, regularly issued and valid on its faee;iAbdooncluded that it did notexisk It was there held, (page 65, 11 page 747, 23 Fed. "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; Witihout dUe process ·of law." Since the decision of. this case, Oorneliua v. Ke88el, 128 U. S.456, 9 Sup. Ct;:RepJ122,'hall f been decided by the supreme court. The general drift of the opinion is to limit and restrain the power of the com· missioner o!"thegeneralland-officeto set aside or cancel entries or certificates lilloi-ed by ,the register and receiver; The pIth 'of the opinion on this point is stated in one of the syllabi as follows: "The s'upervision possessed by the commissioner of the general land-office oter the acts of :the register and receiver of tlle'loC31 land-offices is not unlimited oI'al'bitrary,: but can only be exerted when an entry is made upon Qr,without autbority.ot law, and cannot be exercised 80 as pjlrsoD pf land laWfully entered and paid for." All applications for entries of land under the homestead act are noted on.th.e, books' and plats of the; district land-office, and a -register keptiof tlleeame. 1'h0s6 lacta, "together with the pr66f upon which they have bet'ln 'founded*", are returned to, the general land-office. SeCh tion 2295, Rev.' Sf. When it appears from' such retul'o; together with the record: of. :the surveys of the public lands, and the prior disposition. that an entry has been allowed in the thereof in 1li'e' district 11lnd;.;&ffi(je contniryto law,theeommissioner has' poWer, and it is his duty, to correct the error and disallow the entry. ..'' .; 'Butif,aJtbr1theentry is made and the certificate.isisslled, some ene the same land on·th&,.grollnd .that, the first 'entry is shouldl '()ft'el"toi