85 ·FEDERAL REPORTER.
rIght to exercl1lehls own judgment as· to the fitness aIliI'lli:Oprlety of makIng a sale to any person who mIght offer to purchase. There might be good reasons for reserving such a right, and it w;as legal to make a contract on those terms. The plaintiff might have required hIm to stipulate that he should assign good reasons for refusing to sell or exchange, and in such case it would have been necessary to pass upon the validity of the reasons assigned by him. But the plaintiff did not require such a stipnlation, but agreed to leave the matter to his judgment, without requiring him to assign any reasons. The effect of this was to throw upon the plaintiff the risk of satisfying him. The compensation, then, by the terms of the agreement, was made to depend upon the completion of the sale or exchange. The court can not see that the compensation, in case of the completion of the contract, was not made larger in view of the risk. But this is not material. The point to be decided is, what are the terms of the contract? and, as It fsfound to contain a condition which has not been fulfilled, the plaintiff is not entitled to recover upon It; and, as it does not appear that the defendant is In fault, the plaintiff cannot recover upon a quantum meruit."
The condition upon which Kumler is entitled to recover compensation has not been fulfilled, and, as he has not been prevented from its performance by the wrongful conduct of Hale, the latter is entitled to rely upon the nonperformance of the condition. This judgment must be reversed for error in not instructing thE' jury to find for the plaintiff in error.
BROWN v. CHARLES et aI. (CircuIt Court, W. D. Virginia. October 27, 1897.)
Under Code Va. (Ed. 1860) c. 112, § 41, providing that certaIn settlers upon lands may, upon proof of specified facts, procure an ex parte order of the county court directing the plat and certificate of survey to be recorded, and that said record shall be conclusIve evidence as against a person ciaiming under a subsequent "location," such an order cannot be collaterally attacked in an action at law.
PARTE ADJUDICATION-COJ,LATERAL ATTACK-STATUTE.
2. SET1'LER ON LANDS-BoNA FIDES.
The object' of the statute was to secure the land to bona fide settlers, and is not operative in favor of a settlement effected merely through agents or tenants. Under Code Va. (Ed. 1860) c. 112, a "location" of land becomes operative as soon as a person holding a land warrant lodges it with the surveyor of the county and makes In the surveyor's book an entry designating the boundaries.
"LOCATION" OF LANDS-EFFECT OF' INITIAL STEPS.
Action of Ejectment. All of the evidence in this case having been introduced, counsel for the plaintiff and counsel for the defendants moved the court to give certain instructions, respectively, to the jury. Henry & Graham and May & May, for plaintiff. John O. Summers, O. F. Trigg, and W. E. Burns, for defendants. PAUL, District Judge. There are several important questions arising in this case which the court will dispose of preliminarily to the instructions proper to be given to the jury. They arise out of the construction to be given section 41, c. 112, Oode Va. (Ed. 1860), which is as follows:
"BROWN V. CHARLES.
"Sec. 41. No location of any land office warrant upon any land which shall have been settled continuously for ten years previously, upon whloh taxes shall have been paid at any time within the said ten years by the person having settled the same, or any person claiming under him, shall be valid; and any title which the commonwealth may have to such land shall be hereby relinquished to the person in PQssession of the said land, claiming the same under such settlement and payment; and every person so in possession, so claiming, may have such land surveyed, and before the court of the county where such land or any part thereof may lie, prove such settlement for such time and such payment; whereupon such court shall order the plat and certificate of such survey to be recorded; and thereafter the said record shall be conclusive -evidence in any controversy between the claimant thereunder and any person claiming under a location of the said land made after such order."
At the December term, 1873, of the county court of Buchanan ·county, the following order was entered in accordance with the provisions of the section just quoted:
"This day Jonathan Hurley proved before the court that he is in possessIon -of a tract of land containing 2,000 acres, described as lying in Buchanan county, Va., on the waters and slopes of the Race Fork and Pawpaw Fork of Knox creek; that he has settled the same continuously for 10 years previous to this time; and that the said Jonathan Hurley has paid taxes on said 2,000 acres of land within said 10 years. And the said Jonathan Hurley having had said 2,000 acres of land surveyed by Jacob Baldwin, the deputy surveyor for William H. Booth, the surveyor of Buchanan county, and the said surveyor having returned here to the court a fair plat and certificate of said survey of 2,000 acres, it is therefore ordered by the court that the plat and certificate be recorrled, in order that the commonwealth relinqUish her right to said 2,000 acres of land, under chapter 112, § 41, of the Code of Virginia (Ed. 1860), and that the same may be vested in the said Jonathan Hurley."
It is contended by counsel for the plaintiff that the acts necessary to be done by the claimant in order to obtain this order from the court can be inquired into in this trial in a court of law. It is insisted that the possession of the land for 10 years previous to the order, that taxes had been paid thereon, and all other preliminary facts, can be investigated, and, if found to be untrue as recited in the order of the court, then the said order is to be held null and void. Counsel for the defendants insist that the order is by the statute itself made conclusive evidence of the facts recited and necessary to give the court jurisdiction, that the court is one of competent jurisdiction, that it had jurisdiction when it entered the order of the subject-matter and of the parties, and that the integrity of the order cannot be assailed in this action. This question has not been directly and distinctly passed upon by the court of appeals of Virginia. Counsel for the plaintiff insist that it was decided by the court of appeals of Virg-inia in Slocum v. Compton, 93 Va. 374, 25 S. E. 3. But the question was not presented in that ·case, either in the court below or in the appellate court, in the direct and positive shape in which it is presented for the consideration of this court. It is claimed by ceunsel for the .plaintiff that the order of the county court can be collaterally attacked under the doctrine laid down in Pulaski Co. v. Stuart, 28 Grat. 872. In that case the court held:
"Where a court of general jurisdiction acts within the scope of its general powers, its judgment will be presumed to be in accordance with its jurisdic·tlon, and ClI.llllot be collaterally impeached."
It further held that:
85 FEDElRAL REPORTER.
court of Buchanan were a special statute, the facts necessary to give the court jurisdiction sufficiently appear in the order itself. But the statute is not a special, but a general, statute,-as general as any other provision in the Code whereby a person is enabled to acquire title to lands held by the commonwealth. It is one of the modes prescribed by the commonwealth for parting with title to' her lands, and title acquired by this proceeding is as valid and binding upon all subsequent claimants of the land, except prior locators, as if the land had passed by the commonwealth's grant. The statute makes it con· clusive. But, independent of this provision of the statute, the authorities abundantly establish the. doctrine that it cannot be collaterally attacked.' In Hardy v. Beaty (Tex. Sup.) 31 Am. St. Rep. 80 (s. c. 19 S. W. 778), the court said:
"In a collateral attack upon a domestic judgment of a court of general jurisdiction, every presumption will be',,indulged In favor of the jurisdiction of the court and the validity of the. judgment; and, when it does not otherwise appear, it wlll be presumed that the court ascertained all the .facts necessary ..In order for such attacl, to prevail, it to the exercise of its must affirmatively appear that the facts essential to the jurisdiction of the court did not in fact exist."
"Where a court of general jUrisdiction has conferred upon It special powers by a specIal statute, and such special powers are exercised judicially, Its judgment cannot be collaterally Impeached, but that In such case, where it acted ministerially, and not judicially, the facts essential to the exercise of the special jurisdiction must appear on the face of the record." If the statute under which the proceedings were had in the county
In the notes to that decision are a number of citations, among them the following:
"A judgment" of a court O'f competent jurisdiction cannot be collaterally impeached unlesS the record shows affirmatively want of jurisdiction." Williams v. Haynes ('rex. Sup.) 13 S. W. 1029. "A domestic judgment of the court of general jurisdiction, upon a subjectmatter within the scope of its power, is so conclusive that evidence aliunde cannot be received to contradict it." Wilkerson v.Schoonmaker (Tex. Sup.) 14 "When the power to ascertain the jurisdictional fact Is conferred on the court, and it adjUdges jurisdiction in itself, it may not be overcome on collateral attack." Goodwin v. Sims (Ala.) 5 South. 587.
S. W. 223.
hear and det,ermine certain matters arising in the course of Its duties, the decision of that tribunal, within the scope of its duties, Is conclusive upon all others. :That the action of the land office in issuing' a patent for any of the public land·. suOject to sale by pre--emption or otherwise, Is conclusive of the legal title, IllUSt b:e admitted under .the principle a.bove stated, and in all courts, and ,in all forms of judicial proceedings, where this title must control, either by reason of the limited powers of the court, or the essential character of the proceeding, no inqUiry can be permitted into the circumstances under which It was, obtained."
In Johnson v. Towsley, 13 Wall. 72, Justice 'Miller thus states the doctrine: . "* * · When the law has confided to a special tribunal the authority to
The proceedings necessary to obtain a patent to lands belonging to the United States are analogous to the proceedings had in the county court, in this: I that they are ex parte in their nature. The supreme court has held in numerous cases that !the regularity of the proceed·
ings cannot be collaterally attacked in a court of law. In the case of French v. Fyan, 93 U. S. 169, this court,speaking through Mr. Justice Miller, said:
"We are of opinion that, in this action at law, it would be a departure from sound principle, and contrary to well-considered jUdgments in this court and in others of high authority, to permit the validity of the patent to the state to be subjected to the test of the verdict of a jury on such oral testimony as might be brought before it. It would be sUbstituting the jury, or the court sitting as a jury, for the tribunal which congress had provided to determine the question, and would be making a patent of the United States a cheap and unstabie reliance as a title for lands which It purported to convey."
In Smelting Co. v. Kemp, 104 U. S. 636, the court said:
"It is this unassailable character [of the patent] which gives to it its chiefindeed, its only-value as a means of quieting its possessor in the enjoyment of the lands it embraces. If intruders upon them couid compel him, in every suit for possession, to establish the validity of the action of the land depart· lllent and the correctness of its ruling upon matters submitted to it, the patent, instead of being a means of peace and security, would subject his rights to constant and rU,inous litigation. He would recover one portion of his land If the jury were satisfied that the evidence pl'oduced justified the action of that department, and lose another portion, the title whereto rests upon the same facts, because another jury came to a diffel'ent conclusion. So his rights in different suits upon the same patent would be determined, not by its efficacy as a conveyance of the government, but according to the lluctuating prejUdices of different jurymen, or their varying capacities to weigh evidence."
The language is applicable to the present inquiry. The ord of the r county court of Buchanan must be taken as conclusive in this case. But this conclusive character of the order does not extend to any son claiming under a location of the land mad prior to such order. This gives rise to the very important question: What constitutes a location of land under chapter 112, Code Va. (Ed. 1860)? Section 4 of that chapter provides:
"Sec. 4. When any person shall lodge in the land office a certificate of the payment into the treasury, In the mode prescribed by the first section of chapter forty-one, of the purchase money of waste and unappropriated land In this state (not being a common under chapter sixty-two), or an executive certificate of the allowance of bounty land for military service to this state or the United States, the register of the land offi.ce shall issue, under his hand and official seal, to the person making such payment or entitled to such certificate, 'or to his heirs or assigns, a printed warrant specifying the quantity of land and the right in which It is due, and authorizing a surveyor to layoff and survey the same." Section 6 of the same chapter provides: "Sec. 6. Any holder of a land warrant, other than the principal surveyor of the county In which it Is desired to locate it, may lodge it with such surveyor, who shall, if required, give a receipt therefor. Such holder shall make his location· so special and precise that others may be able with certainty to locate their warrants on the adjacent lands."
Section 7 provides:
"Sec. 7. Every location shall bear date the day on which it is made, and shall be entered by the surveyor rn a book to be kept for that purpose wherein there shall 'be no blank leaves or spaces between the entries. No entry shall be made in any case without a warrant."
Section 8 provides:
"Sec. 8; Locations shall be made in the order In which the warrnntsare presented; but they shall have priority according to the dates of their war·
85 :FElDERAL REPORTER.
rants. If two or more such warrants be dated on the same day, the sur· veyo/-, shall determine the right to priority between: them by lot."
Section 10 provides:
"Sec. 10. When a partial appropriation of a warrant has been made, the officer making the entry shall certify on the back of the warrant how much of It remains unappropriated, and If the owner of such warrant wishes to locate any portion thereof in any other county than that in which the first location was made, the surveyor In whose office the warrant is filed shall deliver it to the owner with such certificate on it; and whenever the whole of any warrant has been appropriated it shall be returned, with the survey, or the last survey made by virtue thereof."
Section 11 provides:
"Sec. 11. Any holder of a land warrant desiring to locate It In a county in which there Is no surve;ror, may lodge it with the clerk of the county court of such county, who shall make an entry of such location in the entry book of his coUnty. A survey of such entry by a surveyor of an adjoiD!ing county shall enable the holder to obtain a grant thereon."
Section 12 provides:
"Sec. 12. If any principal surveyor is the holder of a land warrant which he desires to locate in his own county, he may lodge it with the clerk of the court of the county, who shall make an entry of such location and return the same to his next court there to be recorded. Within six months after such entry, the said surveyor shall have the survey made by one of his deputies, or, if he have none, by a surveyor or deputy surveyor of an adjoining county, otherwise the entry shall be void."
The foregoing provisions of the Code clearly establish the contention of counsel for the plaintiff that the location is made when a party holding a .land warrant lodges it with the surveyor of the county in which he wishes to locate his land, and makes an entry in the surveyor's book designating the boundaries of the land which he wishes surveyed. The survey and grant are not necessary, as contended by counsel for the defendants, t.o effect the location. On the 23d of June, 1873, five months before the order was made in the county court of Bm'hanan county establishing the court right under which the defendants claim title to the land in controversy, Charles A. Lohnert, one of the parties in the patent under which the plaintiff claims, made the following entry with the surveyor of Buchanan county:
"June 23rd, 1873. Entered for Charles A. Lohnert, by virtue of land office treasury warrants Nos. 30,010, 30.041, and 30,012, issued to Charles A. Lohnert T. ·W. Adams In the year 1865, 2,500 acres lying in Buchanan county, Va., heg;nningnear the mouth of Pawpaw creek near the line of Jonathan Hurley; thence up Knox creek to opposite the mouth of Guess Fork; thence running up the ridge l;letween Race Fork and Lester's Fork to the top of the ridge between Louisa river and Knox creek; thence to the lines of Shaderick Estop lands on Pawpaw; thence down the east side of said creek to the beginning,including all vacant land and excluding all patented land and older entries In said boundary. Wm. H. Booth, S. B. C. "A true copy. Sept. 21st, 1893. "Teste: Jacob Baldwin, S. B. C."
It is shown by the plats and surveys introduced in evidence that the land claimed by Jonathan Hurley in the court-right proceedings is within the boundary lines designated in the patent under which the plaintiff claims; and, the lands for which the patent issued having been located before the court-right proceedings were had, the patent
UNITED STATES V. JUDGES OF UNITED STATES COURT OF APPEALS.
is not affected thereby. The plaintiff stands, in his relation to the land in controversy, in the same position he would have occupied if the court·right order had not been entered. Another question presented for determination by the court is the construction of the word "settled." The plaintiff hisists that the person who claims land by virtue of his having settled on it, and held possession thereof for 10 years, and paid taxes thereon during that time; must be an actual settler,-the person himself in possession of the land during the time his possession is ripening into a title. On the other hand, counsel for the defendants claim that he can make such settlement by his agents or tenants. The court cannot concur in the latter view. It thinks the object of the statute was to secure to bona fide settlers the lands which they had held in possession, and probably cleared out and improved; during the time prescribed by the statute,to secure the settlers in their homes, and thereby encourage the set- · tlement of her public lands. It was not contemplated by the statute that the public domain should be thrown open to such speculative purposes as would follow were a man permitted, even without going upon any of the lands himself, to select as many tracts of land as he may choose, and, by putting an agent or tenant on each, by such settlement and the payment of taxes at some time in 10 years, acquire title to the whole. The claim that a man can hold lands by his agents or temnts is undisputed in a controversy arising out of the adversary possession of lands,but it is not applicable to the acquisition of title by settlement. The court will instruct the jury in accordance with the foregoing views.
UNITED STATES ex reI. HARLESS v. JUDGES OF UNITED STATES COURT OF APPEALS OF INDIAN TERRITORY. (Circuit COurt of Appeals, Eighth Circuit. No. 10.
CIRCUIT COURT OF' ApPEALS-JURISDICTION-MANDAMUS.
January 10, 1898.,
Inasmuch as a circuit court of appeals, under Act March 3, 1891, § 12 (1 Supp. Rev. St. c. 517, p. 905). has no greater power to issue a writ of mandamus than the courts of the United States had under Rev. St. § 716, ft follows that ft has no power to issue Such a writ in any case which is not pending in its court, and in which it has not already acquired jurisdiction by other appropriate proceedings. The writ of mandamus may not be made to perform the office of an appeal, or of a writ of error to review the action of a court in the lawful exercise of its jurisd'iction, nor can it issue to command a court or officer to decide a judicial question in a particular way; much less may it be invoked to direct such a court or officer to reverse a decision of a judicial question which has already been rendered.
An alternative writ of mandamus was issued by the circuit court of appeals of the Eighth circuit to the judges composing the court of appeals in the Indian Territory, commanding them to admit the relator to bail pending his 85F.-12
MANDAMUS-REVIEW OF' ;/UDlCIAL DECISION.
MANDAMUS-BAlL-CIRCUIT COURT OF' ApPEALS-TERRITORIAL COURT OF Ap· PEALS.