Gilbert v. Ballinger

Mr. Chief Justice Shepard delivered the opinion of the Court: The demurrer was sustained upon what particular ground does not appear, and the bill was dismissed. If, as contended by the appellant, his title to the land became vested by full compliance with the act of Congress, that there was no jurisdiction ■ to entertain the contest, and nothing remained for the Secretary but the plain duty of ordering the patent to issue, there would seem to be no ground for urging that the suit is in reality against the United States. In the view that we have taken of the pleadings, it is unimportant to discuss this question. Assuming that the United States are not a necessary party to the suit, we are of the opinion that the allegations of the bill do not entitle the complainant to the relief prayed, and that the demurrer was correctly sustained. Relying upon his allegations of entry, cultivation for the required period, and tender of the fees and money due the United States on October 18th, 1904, the appellant’s contention is that, after the lapse of two years from that date, there - being-no pending protest or contest, his right to the land and the issuance of a patent therefor became vested, by virtue of the provisions of the proviso to sec. 7 of the act approved March 3, 1891 (26 Stat. at L. 1099, chap. 561, U. S. Comp. Stat. 1901, p. 1521), which reads as follows: "That after the lapse of two years from the date of the issuance of the receiver’s receipt upon the final entry of any tract of land, under the homestead, timber culture, desert land, or pre-emption laws, or under this act, and when there shall be [207] no pending contest or protest 'against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him, but this proviso shall not be construed to require the delay of two years from the date of said entry before the issuance of a patent therefor.” Although no receiver’s receipt in fact was issued to him upon his tender of proofs and the money and fees due, his contention is, as stated in his bill: “That therefore, in contemplation of law and equity, a receiver’s receipt for the fees and money due upon said final proof was issued to the relator on October 18th, 1904.” If the maxim, “Equity regards that as done which ought to be done,” that has been invoked, be applicable at all in matters of this nature, it certainly must be made plainly to appear that the party claiming the application of the maxim has done everything necessary to impose the duty upon the other party. It ■would seem that if complainant had in fact done everything necessary to entitle him to a receiver’s receipt on October 18th, 1904, and the same had been denied him in violation of the plain duty of the district land officers imposed by the statute law, his proper course would have been to appeal to the Secretary, and not to appear to acquiesce in the action of his subordinates. Be this as it may, the facts alleged in the bill do not show that he was clearly entitled to the receipt upon his tender of proof and money. Complainant admits, necessarily, that his entry of the land is governed by and subject to the conditions imposed by sec. 2291, Bev. Stat. U. S. Comp. Stat. 1901, p. 1390. This section provides that no certificate shall be given or patent issued until the expiration of five years — since reduced to three — from the date of entry. If, at the expiration of such time, or at any time within two years thereafter, the entryman shall prove by two credible witnesses that he has resided upon or cultivated said land for the necessary time succeeding the filing of the affidavit, and makes affidavit that no part of such land has been alienated, except as provided by sec. 2288, and that he [208] will bear true allegiance to. tbe government of tbe United States, then, if, at that time, a citizen of the United States, he shall be entitled to a patent, as in other cases provided by law. None of these special conditions are repealed or changed by the act of March 3, 1891. The receiver and register of the local land office are charged with the duty of receiving the entry and the fees imposed by law, and proof of settlement and improvement required by law shall be made to their satisfaction. The regulations of the Interior Department — consistent with the statutes — prescribe that upon proper proof of compliance with the law and payment to the receiver of the fees and money due, the receiver shall issue his certificate and make proper returns to the General Land Office, as a basis of a patent for the land. Proof of residence, occupation, or cultivation, the affidavit of nonalienation, and the oath of allegiance, shall be transmitted to the register and recéiver, with the fees and charges allowed by law, for their examination and approval. If satisfied with the sufficiency of the transmitted proof, and no objection appears, they will proceed to issue the receipt and certificate. These officers are not required to concurrently pass upon these proofs; but both must be satisfied that the conditions of the law have been complied with before the approval and issue of the certificate and receipt that are the necessary basis of the patent to which the entryman then becomes entitled. Potter v. United States, 107 U. S. 126 — 129, 27 L. ed. 330, 331, 1 Sup. Ct. Rep. 524; Smith v. United States, 170 U. S. 372-377, 42 L. ed. 1074-1076, 18 Sup. Ct. Rep. 626. When these officers refuse to issue the necessary receipt and certificate, it is to be presumed that they do so in accordance with their duty, because not satisfied with the proofs. It is not sufficient to allege, as this bill does, that complainant “duly submitted his final proof upon said entry.” This is but a conclusion of the pleader. To overcome the presumption of legality and regularity that attached to the action of the local land officers, it was, at least,, necessary to allege specifically the character and nature of the [209] proofs submitted, in order that the court, upon demurrer admitting their truth, may be able to determine whether all of the precedent conditions of the law were fully complied with. This renders it unnecessary to consider the other questions raised by the bill as to the contest, and the want of power of the Assistant Secretary to entertain and determine the same. No question has been raised in respect of the jurisdiction of equity to compel the issue of a patent to land, the prayer for which has been joined with the prayer to restrain the cancelation of the complainant’s entry. Therefore it has not heen considered, and is neither affirmed nor denied. For the reasons given the decree will be affirmed, with costs. Affirmed.