McKenna v. Atherton

REED, District Judge (after stating the facts as above). In reversing the decision of the local land office the Commissioner of the General Land Office said of the facts: “It is clear from the evidence in this case that McKenna has been a constant and persistent claimant for this land since 1S84, and that Mr. Toothaker was at the 'time of the contract and long before well aware that McKenna was residing upon, cultivating, and claiming the whole of the N. E. % as a homestead settler. As Mrs. Atherton was at that time living with Toothaker on the adjoining land, and continued to live with him during the years following, I cannot assume that she had no knowledge of his claim and of the differences between McKenna and Toothaker as to the right to the said E. Y¡ N. E. %. This knowledge of a prior claimant and occupant of the land as government land waá sufficient to indicate to Toothaker that there was a probable 'defect in the title of the company, and he cannot be held to have been a bona fide purchaser under the act of March 3, 1887, c. 376, 24 Stat. 556 (U. S. Comp. St. 1901, p. 1595), and of this claim and occupancy Mrs. Atherton must also have had knowledge; and I must hold her purchase also as not bona fide. I give no account to her personal entry on the land in October, 1895, as the incidents thereof convince me it was not made in good faith, but was simply an attempt to ‘hold down’ the land, and she ignored this claim of homestead settlement upon the hearing of the case. I therefore overrule the award of the district officers to Mrs. Atherton, and reject her application to purchase under the act of 1887. “The right of McKenna to enter the W. % N. E. % being without question, the only matter remaining for consideration is his right to the E. % N. E. 14 in view of his recognition, by the lease, of the right of Toothaker, and his yielding possession of said 80 acres to him. With all the circumstances surrounding this transaction and leading up to it, as shown at the hearing, I reach only the conclusion that McKenna was coerced into making that lease, and yielding the actual possession to Toothaker. * * * It was not a free will act, and he was uneasy under it, and wrote to this office to know if it would affect his homestead right to the land. I therefore conclude and decide that said lease does not affect his rights, but that he has always claimed, and constructively been in possession of said E. % N. E. and is entitled to include the tract in his homestead application.” The Secretary of the Interior in reviewing the decision of the Commissioner of the General Land Office, said: “The record history and facts in the case are fully and correctly set forth in the decision appealed from and will not be here recited except in so far as is necessary for the determination of the case. * * * McKenna went upon this land in 1884, claiming the entire N. E. % of said section under the settlement laws. In 1887 McKenna purchased or claims to have purchased the W. Y2 of the said N. E. %, only to avoid trouble with the railroad company and other parties. He now claims the entire N. E. % under his settlement on the same in 1884, and your office decision is based principally upon the theory that his occupancy of and settlement on the land prior to the purchase of the land by Toothaker, and also by Mrs. Athe7-ton, defeated the right of [551] Airs. Atherton to said land. McKenna’s settlement on the land was long subsequent to the patenting of the same to the state of Iowa for the henefit and use of the railroad company, and under the decision of this Department in the case of Tow v. Manly, 29 l.imd Dee. Dep. Int. 504, decided February 16, 1900, said settlement will not defeat the right of a bona fide purchaser of the land from the railroad company to confirmatory patent, under section 4 of the act of March a, 1887, supra. Accordingly your office action in denying Mrs. A therton’s application to confirmatory patent to the land applied for must be and is hereby reversed. “While it appears from the testimony of McKenna that he contracted for the purchase of the W. % of the N. E. of said section 11, from the railroad company in 1887, and made several payments thereon, he did not offer such contract in evidence, and he appears to bo relying upon his claim ihereto under the homestead law, and such being the case, and it appearing that he is entitled to the said IV. % of the N. E. 14, his homestead application will he allowed as to that land. McKenna’s homestead application as to the H. % of the N. 11 % of said section 11 is, for the reasons herein stated, rejected.” The facts so found by the Land Department are conclusive upon the court. But if they were not, there would be no hesitancy in finding the facts as the Commissioner of the General Land Office found them. From such facts it clearly appears that complainant entered upon the northeast quarter of section No. 11 in 188i, built a house and barn upon the west part of the quarter, and subsequently broke and cultivated the same and (50 acres upon the east part, intending to establish his right to the entire quarter section as a homestead under the homestead laws of the United States, and he was so in possession and claiming the entire quarter section on March 19, 1887, when Tootliaker purchased the east half of the northeast quarter from the railroad company, and that both he and the defendant, his mother-in-law, had full knowledge of complainant’s possession and claim when they respectively acquired their rights under the contract for its purchase. The legal conclusion of the Secretary of the Interior that the defendant Atherton is entitled to the land as a bona fide purchaser thereof from the railroad company subsequent to the Act of March 3, 1887, and while the complainant was in possession thereof, claiming it in good faith as a homestead, is contrary to the holding of the Supreme Court in Knepper v. Sands, 194 U. S. 476, 24 Sup. Ct. 744, 48 L. Ed. 1083, and of Judge Shiras in Manley v. Tow (C. C.) 140 Fed. 294, and Ostrom and Runger v. Wood (C. C.) 140 Fed. 294. The rule deducible from these authorities and Linkswiller v. Schneider (C. C.) 95 Fed. 203, is that the prior right to land, situated as this was, is in him, or her, who first enters and makes substanial improvements thereon in good faith, claiming it under some law of the United States, in ignorance of a claim or right to it by others. In accordance with that rule, and especially with the decision in Knepper v. Sands, above, it must be held in this case that it was an error of law upon the part of the Secretary of the Interior to award the land in suit to the defendant; and that she now holds the legal title thereto in trust for complainant. It appears that the fees and commissions tendered by the complainant to enter the laud as a homestead were rejected by the local land office, presumably because it was then supposed by that office that the land was not subject to homestead entry, and he has not since paid [552] them. The government is not a party to this suit, and will not be precluded by the decree from recovering the fees due it from complainant. The complainant, however, should pay such fees and other sums that may be due from him upon the completion of his homestead entry, and he will be required to deposit such amount with the clerk of this court within 30 days after the filing of this opinion, for the use of the United States. Upon such deposit being made, a decree may be entered requiring the defendant within 30 days thereafter to execute and deposit with the clerk for the complainant a good and sufficient deed to him of the premises in question. It is ordered accordingly.