CARR V. FU'E.
ing section," and by the preceding section, (section 1,) such courts are not given jurisdiction of a suit to recover the contents of a chose in action in such a case as this. There must be a remand to the state court.
CARR ". FIFE
(Oircuit Oourt, D. WaBhington, W. D. January 7,189L)
JURISDICTION OF FEDERAL COURT-ACTIONS ARISING UNDBR STATES.
OF TBJI UNITBD
A suit in which the plaintiff claims to have acquired a vested right to land by full compliance with the United States homestead law, and seeks to obtain a conveyance of the title from defendants, claiming' the land under a patent issued to another, is a case arising undel' the laws of the United States, and within the jurisdiction of a United States circuit court.
SAIIB-MOTION TO REMAND.
Such a case, commenced in a district COUl't' of the territory of Washington, and which was pending at the time of the admission of the state of Washington, was transferred to the United States cirouit court after the papers and record in the case had passed into the custody of the clerk of a state court. and after a stipulation had been signed and filed1n said state court, whereby the parties agreed to submit the case to s.aid. court for its decision. and after the defendants had tiled in said court a written request to have the case so tl'ansferred, but before the court had acted upon said stipulation, or do.e any act amountinK to an assumption of jurisdict.ion of the case', HeW,that the request was filed in the proper court. and was in time, and that· a IDotion to remand for want of jurisdiction must be denied.
PUIl:LIC LANDS-CANCELLATION OF 1I0MESTEAD ENTRY.
The decision of the:supreme court in Lee v. JohnBon, (116 U. S. 48,6 Sup. VI;. Rep. 249,) heUL to be conclusive upon a circuit court in a case involving identical legal propositions; and, without presuming to discuss the questions, heW. in accordance with that decision, that in a contested case before the land department, the question at issue between the parties being as to the abandonment of a homeBtead, where the secretary of the interior found from the evidence that the contestee was not a bona fide homeste.ad claimant, he did not exceed his jurisdiction in directing a cancellation of the. entry, although the particular objection to the claim was not raised, by the allegations of the contestant.
·· EQUITY PRACTICE-RIGHTS INVOLVBD.
In a suit by a private individual against the holder of a title to land by patent from the government only the plaintiff's right can be tried j and questions as to noncompliance on the part of the patentee' with the reqUirements of the law under which the patent was issued cannot be relevant.
REs ADJIJDICATA-DBCISION OF $EORETARY OF INTERIOR,
In the absence of fraud, and where no error is shown in deciding a distinct question of law, a decision of the of the interior, holding a homestead claim to be i.nvalid, and directing the cancellation ofathe entry, is final, and not subjeot to reVIew in the courts. .
Ii. WITNIISS-ADMISSIONS OF DECEDENTS.
'.l'he plaintiff is incompetent to testify as to admissions of a deceased person, through whom the defendants deraign title to the llroperty in controversy, made after having parted with his title, in a case wherem some of the defendants are sued in a representative capacity, a.. executors of a deceased party, who is accused of fraud and conspiracy; such testimony being offered with the object of prol"mg such accusations.
7.· FRAUD-PLEADING. Relief on the ground of fraud cannot be granted upon mere inferenoea and SUII pioions. . (ByUabm by the Oourt.)
Chrroll and Joq,n Arthur, for plaintiff. , Galuiha Parson8, for de,fendants.
In this suit the plaintiff claims to be the equitable owner of a tract of land to which the defendants have the legal title, derived through one RobertE. Sproule, who obtained a patent for it from the United States. The plaintiff alleges that he settled upon it in the year 1871, and thereafter acquired a vested right to it by full compliance on his part with the provisions of the act of congress commonly known as the" Homestead Law," and the several acts amendatory thereof and supplemental thereto; and he especially claims the benefits of the laws affecting the homestead rights of persons who were in the military the United States during the late civil war. The prayer 'of the fora decree adjudging that the plaintiff is the owner of the fanQ; that the defendants hold the title thereto under the patent in trust for.pim;and fora conveyance of said title to him. The grounds alleged for this demand are error in law on the part of the officers of the land ,pepartment in .issuing tb(l patent to Sproule, and fraud on the part of ·saldSproule and the defendants in procuring of tiff's hotnestead entry. - - _ ' . ..The.casewas commenced in 1887 in the district court/or the second 'j\ldlCiaI district ofthewtritorlofWashington, holding terms at Tacoma, :a:nd proceededtoa final hearing iIll that c<lurt, but was not decided. 'After: the admission of the State, a stipulatipn was signed, lVhereby the parties submitted the case for decision to the superior., cOllr! of the statE? .t1f Washington :f01' Pierce county, but said court never acted upOn said 'stipulation, and. after it had been filed, granted a motion made by the to remove the case to this court, and signed an order to so transferit. The plaintiff thereupon filed a motion to remand, the case ,to said superior court, for the reason that this court has no jurisdiction .iii tM premises. I think, however, that this court has jurisdiction, and cannot lawfl,llly remand the case. The decision ofthe case involves the -'construction and application of the acts of congress affecting the rights ,of e¢ttJ,ers on the pqblic lands of the United .States who seek to acquire title to such lands from the government. The case, therefore, is one 'clrisipgunder the constitution and laws of the United States, and one this court, if it had been in existence when the case was com'menced, might have had jurisdiction. It was pending at the time the territory of Washington was transformed into a. state, and, by request of the parties defendant, it has been transferred into this court. From the ::factshere:statedit follows that, by the provisions of section 23 of the '-enabling act, (25 U. S. St. 683,) the jurisdiotion of this court has at'taehed 'and is perfect. . It is objected that the request to have the case transferred to this MUrt 'was'D'ot1tlade to the proper court, and not made in-time. Section 23 of the enabling act referred to prescribes no limitation as to the time within which the request should he prefimed, and leaves the parties to ascertain for themselves "proper court" to receive and the
request. In thismstalloo the request, the state bad comeintopdsseesion of the papers 'and r(,cordof the proceedings in' the case, and was' made prior to any aot of the conrtin relation to tlie.' case amounting to an assumption of jurisdiCtion. The shows that the first and only actofthe·statecourt has been to order' the removal .of the case to this court. When the case came on for hearing, the plaintiff filed a motion to' defer the trial, on: the ground that the district judge who was presid- I ing, and the only judge 0f the court in attendance, had been, employed' by some of the defendants as an attorney on matters notconIlected with the case since the suit was commenced, though prior to his appoilltthat thejtidge is legally dis-lualified, and it is ment. It is not only insinuated tliat; because of transactions in: the past, 'he is liable' to be partial; and incapable of rendering a just decision. It would result' in clogging the operations of the,courts, alld intolerable delays in most' cases,to adopt the: principle that no case can proceed before a jUdge, who at any time may have haa any business relationship with any paTtyt it would be mere weakness' on the part of a jUdge to refuse to' perform :the functions of his office merely because of insinuations against' his ability to act impartially. For these reasoIls, the motion to postpone' was,deliied, ·and thecas'e proceeded to a hearing upon the merits.... . .' :T,henecord shows that' in 1813 Sproule was allowed to contest 'the! plaintifJ?s' right to this land. and; as the result of said contest, after sl.1cces-' sive heatiilgs before ,the' register and receiver of the district land-office, the. commissioner of the general land-office, and the secretary of the iri-: the homestead entry was canceled on the records of the 1 general land-office at Washington, and thereafter said Sproule was lowed to 'enter the land under'the provisions;Qf the pre-emption law; : and on the 18th of December, 1875, a patent 'was issued conveying I title to' him. Any further or more detailed statement of the facts in the I c\lseis unnecessary.' In ,their argument counsel for the taken the position rilost favorable fol' him whIch they could take; bY' assunling that the pleadings and facts shown· by the record are si.lckas' to present fairly the questions,-whether the officers of the larid depart.. · menthad any power to cancel the plaintiff's! homesteadentry,-and whether the defendants are precluded from claiming any rights fur them- ; selves under the patent by reason of fraudulent practices in' olJtaihing the i cancellation of plaintiff's entry. I will, to abbreviate the same' assumption, and let the decision of those questions deterrrline ' the caS.e. . '. As to the first question, contradictory opinions have been gi veIl By the: On one.hand', the supreme court of the state M Michigari;in \ an ahJe:"opinion, has sustained fully the plaintiff's argument and eohien- I tioni.n'tbis case. Johnsonv.Lu, '47 Mich. 52, 10 N. hand, the same case wiul'taktlD upon a' writ cif tothesu" preme ,epUrt of the Stlltes,and, was by 'the court "o(llistreso'rt,'.' , afwr full ,argument and .due consideration of tHe able opipion ,of 1he'api. preme court of Michigan, reverSed. Lee v. Joh;1I.80'h, 116 U. S.48,6
Ct. Rep. 249. This last decision meets and overrules every argument made touching this point, and it is conclusive upon this court, so that any discussion of the question here would be idle. I am constrained, therefore, to hold that the secretary of the interior had authority to inquire and decide as to the validity of the plaintiff's claim to this land. The questions which the secretary was called upon to decide were as to . the good faUh of the plaintiff,-whether he had actually, within the time limited by law, established his residence upon the land, with the intention of acquiring it for a home; whether he had continued to actually reside upon the land; whether he was really engaged in improving the land, or in good faith intending to do so; or whether he was only making a colorable pretense of residing upon and improving the la'nd for the purpose of stripping it of its valuable timber, and acquiring it for speculative purwithout complying with the terms of the homestead law. These all ,questions of fact, and the secretary's decision thereon was final. No other questions appear to have been involved in the contest in the lanfl department. Certainly the case, as it has been submitted in this does not present or disclos$I any error of the secretary in deciding a distinct question of law. The fact that no question of law was involved Qr passed upon by the secretary is a sufficient answer to the comments made on the circumstance that the secretary's opinion has never found a place in a,ny of the published reports of land-office decisions. The patent to Sproule has been assailed on the ground of alleged failure on his part to comply with the conditions prerequisite to obtaining title under the pre-emption law. It is charged that the overzealous land-office officials have exacted a forfeiture of plaintiff's rights. 011 insufficient grounds, and, with amazing inconsistency, issued a patent to Sproule with undue and tmusual haste, although he never made even a colorable show of corppUance with the law; but this issue cannot come into this case. This is llQt a suit to destroy the title conveyed by the patent. The plaintiff's object is rather to acquire that title for himself. Unless he can succeed in this, it matters naught to him in what manner or to whom the government disposes of the land; and, if he is .entitled to recover the land, it matters not how fully Sproule may have lived up to the requirements of the pre-emption law. I conclude, therefore, that the action of the department of the interior in canceling the plaintiff's homestead entry cannot' be reversed for any mere error. Next to be considered are the charges of conspiracy and fraud. The specification is that the register of the land-office after the most contest notified plaintiff by letter to the effect that the contestant had failed. to prove abandonment, and thereby deceived him by leading him to suppose that a decision in his favor had been rendered, whereas the record.w:as made to show that the decision was adverse to him. This is st;ipported by only the plaintiff's own testimony, not corroborated even by productic;>n of the letter; and it is refuted by a letter to the commissioner of the general land-office, written by the plaintiff two days after the date of the decision by the register and receiver, in which he sets forth (ully bis claim to the land and his grievances regaPding the contest t
CARR tI. FIFE.
and shows very clearly that he understood then that the case was to be passed upon by the commissioner. This letter further shows that the writer of it, instead of enjoying the feeling of self-complacency of a successful litigant, rather indulged in the bitterness natural to a man while smarting under a consciousness of being the victim of an unjust decision. In further refutation of this charge, the record shows that the attorneys who had conducted the case for the plaintiff in the land-office, and who were then, and are now, men of first-class reputation, and eminent in their profession, appealed the case to the commissioner, and atter his decision again appealed it to the secretary, and, filed their arguments in \ plaintfff's behalf, which were duly considered. I do not credit the plaintiff's claim that he did not know of the adverse decision, or of the appeal taken in his behalf, but, even if he did not know, his rights were as well guarded as they could have .been were he fully informed. The plaintiff's testimony, given after the deaths of Sproule and of E. S. Smith, to the effect that Sproule, after their having parted with all his interest in the land, made certain admissions to the effect that he had boon instigated and induced by said Smith to make the contest, is not legal evidence, and should be disregarded; but, even if received and if uncontradicted, taken together with all the evidence offered on behalf of the plaintiff, it falls It long wayshQrt of heing sufficient to w.anant the court in divesting the defendants oLthe valua.ble land in controversy, and giving it to the plaintiff. .E; S. Smith did not acquire his interest in the land from Sproule, and he did not acquire it until several years after the issuance by of the patent. In view of these facts. the testimony as to him to the efie<;lt that plaintiff's claim would be jumped; that it ,ought to be jumped; that the land would be taken from the plaintiff on account of ' his tailure to reside upon it as the homestead law required, etc. ,-aflords np ground' for even !in inference that he 'vas a party to any con13piracy to rob plaintiff ofthe land by means of unfair or fraudulent practices in the land-office. The defendants other than Smith's representatives acquired their interests in the land by means of foreclosure proceedings against Sproule, and execution sales upon judgments against him, which proceedings and sales were several years after the Vlltent was issued. The only ground alleged for charging them with fraud in this matter is that they are known to have been friends Of Smith, a11d to have had dealings with him in other matters of business. In short, the court is expected to condemn these parties, and striptherilof their title to this property, on general principles; but the court must decline to meet these expectations. Th.ere is Do recognized exception to the rule that fraudwill not be inferred, and that to obtain relief on this ground the acts constituting the fraud must be distinctlyalleged and clearly proven.' The only remaining specifications of in the department of the charge of fraud are that the case was the interior Without due consideration of the plaintiff's rights. Both the commissiol1P.r and the acting secretary'of the interior, who decided the case, have .certified that duecollsideration was given to the case, and against this there is no evidence whatever except the fact that the deoision
J'EDEBAL REPORTER' "vol.
was adverse to the plaintiff. The argument is'that, with, an intelligent understanding of the evidence in the. case and the law applicable, there could not be an honest difference of opinion as to the plaintiff's rights. r think that r havefair]y stated this point, and that in stating it r have llufficiently answered it. Certainly the courtcannot,upon a mere inference, based upon nothing but a difference of opinion, decree a reversal of the action of the highest officers of one of the executive departments of the government because of official misconduct and fraud on the part of said officers. The plaintiff has failed to make a case entitling him to any relief according to the principles of equity, and, without considering the affirmative pleaded, a decree dismissing the suit, with costs, must be awarded.
& T. C. Ry. Co. tit ale
(CircwUCourt, E. D., Texas. January 18; 1891.)
CQaE's FEEs-DEPOSIT Ol'EAaNBST MONET.
Rev. St. U. S. S 995, provides that' all money/! paid into any conrt the United States or received by theofftcers thereof in any cause pending or adjudicated in ,Inch court s4all: be forthwith deposited with t,he treasurer, an 88sistanttreasnrer, or a designated depositary of the United States, provided that the deli very of such money upon secUrity, and according to agreement of parties, undertlhedirections of the court" may be allowed. The fee-bill (Rev. St. U. S. § 828) allll,ws "for recieiVing, keeping, and paying out money, in pursuance of any statute or order of ;court, onel?ar'cen1:uln';on the amount so receiVed, kept, and paid;" HeW, that wqerea decree ordering the, sale of mortgaged ,railroad property requires the payment of earnest money court at the time of the sale. to be returned in case the same is not coo firmed, and afterwards,bycoBsent of parties, the decree'is mod· Hied 80 as to .allow. certified bauk-.check to be given instead of cash,' and requir"fUg the commissioner to deposit the same with a trust company. the. clerk of the , ooul'ti is not 'entitled to receive any percentage 6S a fee. ' DistioR'uishing Ex parte Pre8cott, 2 Gall 146, and Thomcu v. RaUWltli Co., 87FecL Rep. 1548.
, '. for complainants. among other provisions, was the following:
" Fwd & McComb. for intervenor.
)3,q,ker, Botts &
In the final, decree, directjng the sale of the mortgaged
·. , ',''+!Jat,of the plJrchaseprice bid on such sale a deposit. Ilmounting to the dollars, ($100.000.0(),} shaJ,l'.be in eash to tM, j'pmnHssioneratthe thue of sale, an<.l shall be deposited in the registry of this c6u'rtto the 'o1'(1er'OI the cause. If separate bids be made andaebepted . thlo' property to be sold, then thedetJositS(fwade shall 'nat be less than ,seventy",five thousand dollars 011 the purchase of :the main ,of, way ann ,its appurtenances, and twen ty-five;tho\Jsan\ldoll/trs purcllase ofany otherportipn. addiqon, to ordepQsitll lit, Pllfchase pric? shall :be 'l>IIid in 'cash' arid 'deposited' as tbe court ,in thiS 'cltllsemay from tIme to 'time:direct; ,tbe:ctilltt 'teser'ving right to resell ·in·tHis the' pl'emises i wid lUraeteaJo be sold,' or aay'pllrt soltlseparate11i upon thefll,il-