40 F. 57 -

FEDERAiLREPORTER,

vol. 40.

'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

74t.

t7. FINE<

illegal, and propose to show the same by new and extraneous proof, I can find no law that authorizes the register and receiver, or the commis· sioner, to institute or direct a "proceeding" to hear and determine the matter, and therein set aside or cancel the entry and certificate. The subject is no longer administrative in its character. It ceased to be so, sofar;1il:l the, register and receiver are concerned, when, upon the final proof,llifternotice to the world of the settler's five years' residence and culti\l',ation" 'the certificate was issued to him. , Admitting the power of the commissioner to disallow an entry for reasons appearing on the face of the return made by the register and re. ceiver the same, thereafter and otherwise, the validity and effect of the certificate as evidence of the right of the settler to the land described therein can only be impeached in a judicial proceeqing: If, lipon inquiry, the land-office finds that' throtigh fraud or mistake a was a suit should be .brought in the 'propercourt to set aside and canoel the same. Such guiteas simple 'and inexpenshieas a hearing in the land department, and, muqh more likely to be attende<l with' correct and satisfactory results.. ' " 'The allegation iinbi/3 defense that thedefendatit took peaceable pos· pf 'the premi'ses, 'lird still holds them so, thechto notping more than. an admission tIi,at ,the defendant en· , 'upon possessionoqhe premises, forceorvi?lenc,e, ,and. sHll hold's them so. ' Thls is not an action of Iorcible entry and de. tainer, lin <1 , althollP;h alleges that the defendant entered ,'H Unlawfully' and of an unlawful entry and holding S\1ppbtt the action; ,".' , ' , ' , The ,lemlirrer to this defense is sustained. ' . , defense consi13ts ,si6:hRy of the allegation 'that by " 'his having had the'liellefit of the was not en· f.o. settle upon apd 'the title to tlle ulider sai<la.ct. , , This also, oy implication; a<l!Dits that Alex,awler .. the possession of WeIand under the 'ner therem 'provideq, and that ,the defendant, witbouteven a'claim of or interest iti the premises, thereon, and the plairitifl' of the alleged inthe cori:iplidnt. " The : ' demurrer to t"this defense is also sustained. '. 1

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