Swigart v. Walker

The opinion of the court was delivered by Johnston, J.: It is contended that the findings' require the entry of judgment in favor of Swigart, who holds under the unwarranted entry of Cummings, the guardian of the Volgymore heirs. As stated in the findings, the guardian entered a tract of public land in Sherman county as an additional soldier’s homestead entry, and a final receipt showing the entry was issued by the register and receiver of the local land office.. Soon afterward the land was conveyed to a town company, and a few months later the company conveyed the portion in dispute to the plaintiff in error. Before the patent issued or the legal title had passed from the United States, it was discovered that Joseph Volgymore, then deceased, had previously used the right and had made a similar entry about 10 years before in California. Thereupon, the final entry made by the guardian of the heirs of Volgymore was canceled, and subsequently the land was entered by Walker, whose qualifications are unquestioned, and the regularity of the steps taken by him to acquire the land is not challenged. The only question presented is as to the power of the United States land commissioner to set aside the entry and to cancel the final receipt which had been issued. We have no doubt of the power of the commissioner. It is not claimed to have been exercised erroneously or fraudulently, and, if he is warranted in taking such action in any case, it will be presumed to have been regularly and legally done in this case. The action of the local land officers is final, but is subject to the supervision and control of the commissioner and his superior officer, the secretary of the interior. Until the patent issues, the commissioner, under the direction of the secretary, [104] is vested with full power to review and correct any error in the preceding steps takeu in the disposition of the land, and may inquire into and arrest any act of fraud committed against the government. Their power does not end with the issue of the final receipt. This was practically decided in Darcy v. McCarthy, 35 Kas. 722; and most of the adjudicated cases upon the question sustain that view. (Pierce v. Frace, 26 Pac. Rep. 192; Jones v. Meyers, 26 id. 215; Hastres v. Brennan, 50 Cal. 211; Judd v. Randall, 29 N. W. Rep. 589; Forbes v. Driscoll, 31 id. 633; Vantongeren v. Heffernan, 38 id. 52; Bernard’s Heirs v. Ashley’s Heirs, 18 How. 45; Bell v. Hearne, 19 id. 252; Harkness v. Underhill, 1 Black, 316; Marquez v. Frisbie, 101 U. S. 473; United States v. Schurz, 102 id. 378; Steel v. Smelting Company, 106 id. 447; Randall v. Edert, 7 Minn. 450; Gray v. Stockton, 8 id. 529; Ferry v. Street, 11 Pac. Rep. 571.) When Swigart purchased the land he was aware that no patent had been issued, and took it subject to a reexamination and to the right of the department to cancel the entry for sufficient reasons. No appeal has been taken from the order of cancellation, and having been made with authority, Swigart had no title to the property, and hence the judgment of the district court must be affirmed. All the Justices concurring.