94 FEDERAL REPORTER.
l1is\::hargEdrom all debts and claims which were made provaof rehtting to bankruptey whieh existed on't e3'dday 'of- September, 18ll8. No assignment of erl'orswas fi!ed ' ,the district an«;J. ,. the requirements of· our rule ·.. Oli such the JUdgment of the dIstrIct court WIll be' afflrt#eq: U. S. v; Goodrich, 4 O. O. A. 160; 54 Fed. 21; Insurance .. Odnoley,llC. 0: A.H6,63 Fed. 180.. We place our whoBY'uvon the ground indicated, in the judgment 'of hope tlIat attention may: be (}rawn to the necessity of compliance with therul'e. It may beadded,that upon 'the hearing of the cause not MIS' was no "plain error not 'a!ilsigned"suggested, but, upon the contra;ry;the court was convinced that upon the merits the decision .of ,;' district court· was not erroneous.' 'the
froin, th¢ ;/lnat.order of the' dis.trict court grllnting Eber T. Dun-
,9lIJ,3,J;i:RT, Circuit Judge.. The appeal was taken in this case
IllMBLEN .;v.. LlNPQLN LAND 90:
(CirGuitcourt. D; Nebraska. June 23,
PUJlt,IO LANDS-<JoN'rROL OF DISP<lSITION-POWERSOll' OONGRESS.
paramountconuol 'over the disposition of the public land! of the'tInited States remains in congress" and the fact that a contest over the 'right or entry or such lands is pending the land departwent, a creation ot congress, and not of COD.fltitution; does not deprive congress of such paralllount control, alld it may at any time, by an act passe'd.f6r that purpose,withdraw such contest from the jurifldiction of the department and itself 'determioe the rights of the parties.
SAxE4DE\:mlION OF OOlilTESTBY SECRET,.I.Ry,...;.RIQR'r OF SVCCESSOR 'ro ANlilUL.
A of th.e interior has IW power to .a,nnul a decision or his predeces!!or which determines the rights of the' parties to a contest for entry ot. 'public 'lands; sl1chdetermination being a jlldiCial act, which can only be reviewed by the courts.
.. SAlIlE-CONTEST OF ENTRy-RIGHTS OF CONTEST,.I.lIlT,
8ectlon 2 of the act of May 14, 1880 (21 Stat. 140), giVing a contestant who has paid the land-office fees and procured the cancellation of a prior entry of public lands a prererred right to enter the same, gives such contestant no vested rightii in the land until the cancellation ot the eXisting entry; and lience, where the decisions of the land officers, 80 far asR contest ,had progressed, were advef1!.e .to the contestant, and during the pendency of the proceedings congress deprived the land department of further jurisdiction OY the passage of a special act confirming the title or the entryman, the contestant acquired no vested rights in the land which a court. can recognize or enforce.
SAME--'-PNVHENT Oll' CONTEa'1' FEES.
The payment of contest fees andcostfl by a COIltel;ltant or an entry ,of public 'land gives. him no right in the land, unless the contefit resultS·in the cancellation of the prior entry.
On Demurrer to Amended Bill. T. J. Mahoney and E. R. Duffie, for'cdmplainant. J. W. Deweese and F. E. Bishop, for defendants. District Judge. In the bin demurred to it ts that on September 19, 1885, one George F. Weed made-a cash pre-emption
EMBLEN V. LIN CaLX I.AND CO.
entry of the S. E. 1 of section 22, township 2 N., of range 48 west, at the land office of the United States in the citj' of Denver, Colo.; that on the 4th day of October, 1888, the complainant entered a contest against this entrj', on the ground that the entr,Yman, Weed, had not complied with the requirements of the law with respect to his residence on the premises, and that in fact th.eentrj' was made for speculative purposes, the intent being to establish a town thereon; that the purpose. of complainant in making such contest was not only that the laws of the United States regulating cashpre:emption entries on the public lands should be complied with on part of said Weed, but that, bj' defeating the entry made by Weed, the complaiIUlnt might be enabled to enter the land under the provisions of section 2 of chapter 89 of the Statutes of the United States approved May 14, 1880(21 Stat. 140); which section reads as follows:
"Sec. 2. In all cases where any person has contested, paid the land office fees, ard Ill'ocured the cancellation of any pre-emption, homestead, or timber culture putry, he shall be notified by the register of the land office. of the district in which such land is situated of such cancellation, and shall be allowed thirty (lays from the ,of sucb ,notice. to enter said lands: provided, that said register shall be entitled to a fee of one dollar for the giving of such notice, to be paid by the contestant, and not to be reported."
It is further averred in the, bill that a hearing upon the contest made bj' cOill.plainant against the entry made bj' Weed was had before the. register and receiver of theJand office at who, on May 21, 1889, ordered a dismissal of tpe contest, on the ground that the allegations on the same wa.s based w,ere not sustained by the evidence; that thereupon the contestant, being the complainant herein, appealed to the commissioner of Hle general land office at Washington, as he had the right to do, and upqnthe hearing of the appeal the commissioner sustained the same; that thereupon George F. Weed moved ,before the commissioner for a rehearing on the evidence, and the Qfficials and inhabitants of the town of Yuma, which it was shown had, be,en located on the premil"es, asked leave to intervene for the protection of their rights; that the commissioner ordered a rehearing of the matter before the register and receiver; that, before this rehearing was had, a new land· district was crrated at Akron, Colo., the land in question being within the new district thus created; that the receiver and register of thp. new distr'ict ordered the rehearing to take place at Akron on the 16th day of September, 1890; that the contestant did not appear at this time, b1lt filed objections to the jurisdiction of the local offices at Akron, averring that the receiver at Akron was fin inter't;8ted party, being the owner of a part of the town of Yuma, under title del'i from Weed, the pre-emption claimant; that the officers of the land district ,)f Al,ron overruled the objections to the jurisdiction, and, upon hearing the evidence adduced on behalf of Weed, found in his favol', and dismissed the contest; that thereupon complainant appealed to the general land office at ·Washington, a,nd the commissioner' affirmed the action of the local land office, from which ruling comphdnant further appealed to the secretary of the interior, John W. Noble, by whom the action of the local offieers and of the commissioner was aflil'lned by a decision entered Jannary 9, 1893, and snbsequently com-
94 FEDERAl, REPORTER.
p1;l;l,ipant filtd ,a motion for review befol'e Secretary upou the headng was ordered'bv th,e secretary !>f the interior that a, rehearlng,' of the whole contest should be had before the loca.l officers, and, in' Obedience to this order, the register and receiver of the land office at Akron set case for hearing on 3d day of January:, at which time Weed and the parties interested obtained n. contitmance of the hearing, it being charged in the bill that this continuance was, obtained for the purpose of procuring the passage of an a,ct of congress confirming the title of the ori.ginal entryman, F. Weed,which act was in fact passed and approved December29, lS94 (28 Stat, 599), the same being in the words following:
"Be It enacted by the senate and house of representlith'cs of the United States of America in congress assembled, that the pre-emption cash entry numbered 4,900, of George F. Weed, made at the district Iand ottice at Denver, Colorado, on the 19th day of September, 1885, for the soutlle,astquarter I)f section twenty-two (22), township two (2) north, of ral).ge fort)'-eigllt (4.8) west, which tract embraces the town of Yuma, Colorado, tlie county seat of Yuma county, Oolorado, be, and the same is hereby, confirmed, and that patent of the United States issue therefor to the said Weed."
Complainant further avers that, while this bill was pending before the houses of congress, full information was fUI'nished them of the exact status of the contest over the title to the land; that, when the bill was passed, the question of the title thereto was pending in the land department, which, under the constitution and laws of the United States, is solely charged with the duty of determining the rights of pre-emption and contestants, and that congress had no right or power to adjudicate on the question of the title to the premises in dispute, and, furthermore, that, under the provisions of ,section 2 of the act of congress of May 14, 1880, hereinbefore cited,. complainant Ihid a vested right to enter the land upon the determination of the contest then pending between himself and Weed, and that, if complainant bad been permitted to catry through the contest to a final determination, he would have succeeded in procuring a cancellation of the Weed entry, and that the passage of the act of congress above cited and the issuance of the patents thereunder deprived complainant of a vested right without due process of law. It is also averred in the bill that in the year 1886 the town of Yuma was located on part of the premises, and a large number of lots have been sold to various parties named as defendants to the bill, it being char'ged that these parties had full knowledge of the facts when they bought under the titles based on the Weed enh'y. The prayer of the bill, in substance, is that the several defendants be decreed to hold the title to the property in trl1st for theuse and benefit of c()mplainant, and that it be decreed that the patent 'act of congress to George F. Weed conveyeAnotitle in the against the rights of complainant. To this amendcdbill a demurrer is interposed on behalf of the principal defendants, thereby presenting the question whether matters recited in the 'bill entitle the complainant to any relief in, the premises. The bill admits thll.t the legal title to the land vested in the complainant, and that, by virtue of the patentsiss,ued under the provisions of the act of congress adopted Dp.-
E",rBLEN V. LI"COU, LAND CO.
cember 29, 1894, the title to the realty has passed to the ants; but the contention of complainant is that the aet of congress is unconstitutional and void for two reasons: First, that, as the contest over the title to the land was pending before the land department, congress had no jurisdiction over the land, and could not confirm the entry made by "Weed; and, second, that by initiating the contest over the validity of the "Weed entry, and by payment of the costs and expenses incurred in making the contest, complainant had obtained a vested right or Lterest in the land of which hp could not be deprived by legislative action. The denial of the power of congress to confirm the entry made by \Veed, because of the pending of the contest before the land department, seems to be based in the allegations of the bill upon the assumption that, under the constitution and laws of the r;nited States, the land department is solely charged with the duty of deter'mining the rights of pre-Emptors and contestants, and therefore eannot legislate with respect thereto. In view of the fact that the differen1 branches of the land department are the creation of congress, and not of the eonstitution, it must eertainly be true that the paI'amount control over the disposition of the public lands of the United States remains in congress, and the mere fact that a contest was pending before the tribunal created by congress to hear and determine the same did not nullify this paramount control bestowed by the constitution itself upon congress to dispose of the publi(' lands belonging to the Lnited States. It is within the power of congress to terminate the existence of the land department: or to declare that it shall no longer exereise jurisdiction over contests pertaining to the right to enter or pre-empt any of the public domain, and, when congress passed the act of December 2H. lSH4, it ill effect declared that the jurisdietion of the land department over the question of the validity of the Weed entry was at an end. It cannot be questioned that it is within the power of congress to change or terminate the jurisdiction of the distriet or circuit courts over given subjeets, and, in the absence of a saving clause in thea::t, jurisdiction over pending cases ceases upon the taking effeet of the act. Insurance Co. v. Ritehie, 5 Wall. 541; Railroad v. Grant, 98 U. S. 398; Gurnee v. Patrick Co., 137 L. S. 141, 11 Sup. Ct. 34. The same effect must be given to a statute which intends to put an end to further contest over a disputed title. Thus in Re Hall, 167 U. So 38, 17 Sup. Ct. 723, it appeared that, acting unde-r authority previously conferred on it oy congress, the eourt of elaims had rendered judgment in favor of one Hall against the District of Columbia for the sum of $8,644.19, with interest thereon from January 1, 1877. Upon appeal to the supreme court, it was held that there was error in the matter of allowing interest from that date, and the judgment was reversed, and the ease was remanded to the court of claims for correetion of this error. The mandate was filed in that eourt; but, before a new judgment had been entered in conformity with the opinion of the supreme eourt, congress passed an act depriving the court of claims of jurisdiction, and the supreme court held that "the effect of the passage of the repealing
act was to. take away the jurisdiction of the court of claims to proceed fqrther in those cases which were founded upon the act thus repealeq.. ·Thjs the congress bad the power to do." The general rulellp}j)licable to cases of this character is laid down by the supreme court in Frisbie v. -wpitney, 9 Wall. 187, in which it is held that,except in cases of vested rights, the power of congress to control the of the pUblic lands is absolute, and the contention of complainant that the control of o-yer the disposition land in dispute had ceased to exist, because there was pending. before the officers of the land department a contest over the validity of the Weed entry, cannot be sustained. Do the facts averred in the bill show that complainant had obtained such a vested right in or to the land. in dispute that thereby the same had ceased to be within the control of congress, a vested right of such a character that the court can enforce it by a decree conveying the title of the land to complainant? The history of the case, as recited, i:o. the bill. shows that the decision -of the register and receiver at Akron, dismissin,g complain'ant's contest and affirming the validity of the Weed entry, had, upon appeal, been confirmed by the cemmissioner at Washington, and, on appeal, had been finally confirmed by the secretary of the interior, John W. Noble, under date of JanuaIty l}, 1$93. Theavermentl;l of the bill further shqw,-. after John W. Noble had been succeeded in office, by Se.cretarySmith,' a petition for a review. of the order .made by was filed in the office of the secretary of the interiQ-l-l,i and. was by l\imentertained granted, and theca,se WMsent }::lack toJbeJocallal1d office for a further hearing on the facts. What ef'fe<;t upon the rights Qf the partie!,! had this order granted by Secretal,'y Sp1ith, whereby it was sought to nullify and set aside tl;1C final judgwent of the ;land department upon the questi.on of the validity of 'tJ;le,Weed entry, evidenced QY the order of SecretaJ;yNoble confirming" onappeal,;the actio.nof:commis '1N hicll in, continued ,the .decision sioner of· the general la;n,d andfindingsofthe 113 it ing secretary, of the rehear cases decided o;yJlis predecessor in office? . III ;Noble v. Rai.lrQlJ;dCo., 141U., S. 165, 13 SWP:. Ct. it
"A approvarof·the secretary of the interior,however, by his :inoffice, was .an attempt to deprive the plaintiff of its property without Clue, pr,OCflss of law, l;lnd was therefore. void... As was. said. by Mr.. Jus2 Wall. 525: 'One ofncerof the land office is not tice Grier, in D.. competent tocllnceJor anIl1il the act of his predecessor;' That Is a jUdicial act, of a cOurt.' " i · ,-
It is clear from '1heaverments ·of bill that the -complainant has never yet succeeded in obtaining an adjudication holding that the Weed entry istnvalid;but, asalteady stated, it is shown that up to this time the adjridicati<'l'hs of the land department have sustained the validity of the iWeooentry. If iibe held that it was open to Secretary Smith to annul the finding and decision of his predecessor in office, and to send the Clli!le back to the local land office for a rehearing upon the facts, yet, as the local officers have not taken further· action,
EMBI.EN V. LINCOLN LAND CO.
there is no decision holding the Weed entry to be invaHd, and until that is done no right exists in complainant to make entry of the land, and thereby acquire an inferest in the same. Under the provisions of the act of congress of 14, 1880, upon which complainant relies, before a contestant becomes entitled to enter land, he must procure a cancellation of the pre-emption or other entry which he contests, .and, until this is done, no right to make entry thereof exists in his behalf. The complainant herein does not aver that he has ever succeeded in ohtaining a cancellation of the Weed entry, but, on the contrary, the facts averred >in the l>ill show that this entry yet remains uncanceled. The real contention of the complainant is that, if he had been permitted to continue the contest in the land department, he would have succeeded in obtaining a cancellation of the entry, and that congress had no right to terminate the jurisdiction of the land department, and thus deprive him of the privilege of continuing the litigation over the validity of the Weed entry. By filing the present hill the complainant practically admits that the jurisdiction of the land department over the matter is at an end, and therefore complain. ant IIOW a.ppeals to the court upon the theory that he has such a vested interest in the land that he is entitled to a decree conveying to him the legal title of the premises, and cites the cases of U. S. v. Fitzgerald, 15 Pet. 407, Smith v. U. S., 10 Pet. 330, Delassus v.U. S., 9 Pet. 133, and Magann v. Segal, 34 C. C. A. 323, 92 Fed. 252, in support of his contention; but an examination of these cases shows that none of them give support to the rille contended for by complainant. As is pointed out in FrisbiE: v. 'Vhitne.y, 9 Wall. 187-196: .
"The courts may very properly correct the Injustice done by the land officers In refusing to accord rights, however inchoate, which are protected by laws still in existence. while they can only consider vested rights when those rights are sought to be enforced in opposition to the repeal or modification of the laws on which they are founded. The argument Is urged with much zeal that, because complainant did all that was in the power of an:\, one to do towards perfecting his claims, he should not be held responsible for what could not be do:qe. To this we reply, as we did in the case of Rector v. Ashley, Q Wall. 142, that the rights of a elaimant are to be measured by the acts of congress, and not by what he mayor may not be able to do, and, If a sound constrnction of these acts shows that he acquired no vested interest in the land then, as his rights are created by the statutes, they must be governed by their provisions, whether they be hard or lenient."
The act of congress upon which complainant relies in this case conferred upon him the privilege of entering the land in dispute when, and only when, he should succeed in canceling the prior entry in favor of Weed. This he has not yet succeeded in doing. He entered the contest against ·Weed in October, 1886, but never obtained a cancellation of the entry; the decisions of the land department being adverse to ·him until in December, 1894, congress passed ail act con· firming the Weed entry, and thl1s made it impossible for the land department to further entertain the contest over the validity of the Weed entry. That entry therefore remains uncanceled, and therefore a right to enter the land has never become vested in the complainant. He has never made an entry upon the land, nor has he perfected a right to make an entry thereof by securing a cancellation of the Weed entry, and therefore he has no vested right or interest
in the land of which he can himself to defeat the operation of the' act of congress confirming the Weed entry. Some reliance is placed, in argument, upon the fact that complainant has paid the costs of the contest and certain fees to land-department officials. These payments were made with full knowledge of the fact that they would not affect the right to the land; unless the Weed entry was canceled. The pa,yments were not made with the expectation that, by reason thereof,the land department would convey the title to the complainant, but they were made in aid ofthe contest which complainant initiated against the Weed entry, and complainant well knew that these paymentsW'ould not give him any right to enter the land, unless he succeeded in procuring It cancellation of the previous entry made by Weed; and, ashe has failed in his effort to procure a canceIlation of this entry, he has not established a right to enter the land by the mere payment of the costs and fees. Under the act of :May 14, 1880, it is the procurement of a cancellation of a, previous entry and the payment of the land-office fees that creates the right to a preference in the entry of the land. upon the part of the contestant. A performance of one only of the conditions.is not sufficient. Both conditions are essential in the creation of the right. The complainant admits that he has not secured the cancellation of the Weed entry, and therefore has failed to show that he has become entitled to enter the land. He never has entered the same, and therefore has no right in the iand. He has not perfected a right to enter the hi.nd, having failed to secure a cancellatio:n of the Weed entry, and therefore there is no ground shown upon :'Vhich the court could base a decree that the defendants hold the legal title for his benefit. The utmost he can claim, in view of the facts recited in the bill, is that, if he had been permitted to prolong the contest over the Weed entry before the land department, he might have succeeded in ultimatelJ' procuring a cancellation of the entry; but this court cannot accept, as ground for its action, a possibility,of this kind, in view of the requirements of the act of congress that the c()ntestant must succeed in procuring a cancellation of the existing entry before he becomes entitled to create a right in the land by making entry thereof. The demurrer is therefore sustained, and the amended bill is dismissed on the merits at the cost of complainant.
ANDERSON v. COXDICT et aI. (Circuit Court of Appeals, Seventh Circuit.
RAILROAD FORECLOSURE-SAT.ES SUBJECT TO CLAIMS AGAINST RRCEIVER.
June 6, 1899.)
Where a decree for the sale of railroad property in a foreclosure suit contains an independent and uncohditional provision that the sale shall be subject to all current liabilities of the receiver; the purchaser takes the property sUbject to such condit/1m, .wlthout regard to the question of priority between such liaqilities and the liens .under which the sale is made.
On Petition for Rehearing. For former opinion, see 93 Fed. 349.