Greenameyer v. Coate

Appellant and appellee were respectively plaintiff and defendant in the courts below, and we shall so designate them.

Plaintiff brought this suit in the district court of Kay county, Oklahoma, to be declared the owner of the legal title to lots 1 and 2 and the E. 1/2 of the N. W. 1/4, section 18, township 26 N., R. 2 E., Indian meridian, and to require a conveyance of the land to him by defendant. A demurrer to the petition was sustained and a judgment entered dismissing the suit, which was affirmed by the supreme court of the territory.

The petition shows the following facts: August 9, 1893, a portion of the territory, known as the Cherokee outlet, was opened for settlement. The plaintiff complied with the terms of the proclamation of the President of the United States, and, having served as a soldier during the War of the Rebellion for a period of two years, and being otherwise qualified, filed in the United States land office at Perry, Oklahoma, a soldier's declaratory statement for the land. On the 8th of March, 1894, he duly transmitted his declaratory statement into homestead entry No. 5588, for the same premises, moved a house upon and took up his residence upon them, and continuously lived thereon with his family from such time for seven years, cultivated 40 acres thereof, 'cropped the same, and grazed 40 acres in addition,' and erected improvements of the value of $450. That after such residence and cultivation he made application in due form to make final proof, which offer was rejected.

On November 24, 1893, the defendant made homestead entry No. 4447 upon the land, subject to plaintiff's soldier's declaratory statement, and on the 4th of March, 1904, filed a contest affidavit in the land office at Perry, alleging settlement three days prior to such declaratory statement.

The contest came on for hearing before the local land office, and that office decided in favor of defendant. This decision was reversed by the Commissioner of the General Land Office, and, on appeal to the Secretary of the Interior, by that officer. Their opinions and judgments are attached to the petition.

A petition for review being filed by defendant, a rehearing was ordered and the matter remanded to the local land office for further hearing upon questions of fact, but the petition for review was denied. The opinion of the Secretary is attached to the petition. The matter was duly heard by the local office, which office recommended adversely to plaintiff. The decision was affirmed by the Commissioner, and the homestead entry of plaintiff 'held for cancelation, subject to the right of appeal.' An appeal was taken to the Secretary of the Interior on July 3, 1900, and that officer reversed the departmental decision of June 21, 1898, in favor of plaintiff, affirmed the ruling of the local land office against him, and canceled his entry.

Plaintiff filed a petition for review, which was denied, and the case was finally closed, the entry of defendant 'reinstated, and his rights in and to said tracts were held to be both prior and superior to those of this plaintiff.'

Defendant submitted his final proofs, and, prior to the commencement of the suit, obtained a patent conveying to him the tract in question, and holds the legal title thereto.

The petition alleges the superiority of plaintiff's right to defendant's right, and that, by a proper application of the law to the facts, as proved in said cause and found by the decision of the land office, the claim of the plaintiff 'should have been finally held prior and superior to the claim of said defendant, and the patent conveying title to said tract should and would have been made and delivered' to plaintiff. The misapplication of the law, plaintiff alleges, consisted in the different conclusion drawn from the facts in the decision of July 3, 1900, in which the improvements put upon the land by defendant were declared sufficient, from that deduced in the decision of June 21, 1898, in which the improvements were decided to be insufficient to initiate a valid right of settlement. The last opinion is quoted from as follows:

'After a thorough examination of the the Department is of the opinion that the acts of Coate were insufficient to hold the land against the soldier's declaratory filing of Greenameyer.

'If it should be conceded that everything claimed to have been done by Coate in the way of settlement were true, his said acts would not, in the judgment of this Department, constitute him a bona fide settler prior to the 19th day of September, 1893, when the defendant made his declaratory statement of record.'

And it is alleged that defendant—

'Coate reached the land between 1 and 2 o'clock on the afternoon of the opening, and remained on or adjacent to the claim until the 20th,-four days. All that he did in these four days was to stick his flag and dig a hole which he calls a starting of a well, 2 feet deep and 2 1/2 or 3 feet across. He then left and went back to his home in Kansas, 150 miles distant. The digging of this hole would not require more than an hour's labor by one man. This was all he did between the 16th and 20th, while he remained on or near this claim, to his return to Kansas; the rest of his time he spent 'watching people off' of the claim and in going to Newkirk on the 19th to 'file by mail.' He did not return to the claim after leaving, on the 20th of September, until the 22d of October; and his return at that time was due to the fact that he received a letter from one White, stating a soldier had filed on the land.'

It is alleged that the two decisions were made upon 'precisely the same state of facts;' that the decision of June 21, 1898, and October 5, 1898, correctly applied the law, and that of July 3, 1900, reversing the prior decisions, misapplied the law.

For a second cause of action plaintiff alleged the foregoing facts, and further alleged leged that fraud and deceit were practised upon the land office by defendant, which caused the defeat or plaintiff in the litigation, and that, by cunning and deceit, defendant so concealed his fraudulent practices from plaintiff that the latter was unable to procure evidence to prove the fraud in the contest suit. That about the 1st of December, 1893, the plaintiff learned that defendant was the owner of and in possession of 160 acres of land in Morris county, Kansas; that he obtained an abstract of the 'registry records' of Morris county, which showed that defendant was owner of 180 acres of land, and July 9, 1894, he further learned that in January of that year defendant had fraudulently placed on record a deed for the land to his son-in-law, to enable defendant to make proof before the Land Department, and that plaintiff was unable to obtain proof thereof in time to use in said contest. That the nature of defendant's fraud was such that he could and did conceal it from plaintiff and the Land Department; that the deed, while it was executed upon the 27th of January, 1894, was antedated so as to appear to have been made August 30, 1893, and that, by these fraudulent means, defendant caused it to appear that he had sold and conveyed the land on the 30th of August, 1893, whereas he continued to own the same until January, 1894, and was therefore disqualified from taking and holding any interest in the land involved in the action. And it is alleged that defendant introduced in evidence in the contest cause a certified copy or statement from the records of Morris county, in order to deceive the Land Department and defraud plaintiff, and to establish that defendant had the necessary qualifications to make entry and settlement upon the land.

It is alleged that plaintiff has but recently discovered the 'evidence to prove the foregoing charge of fraud, concealment, and imposition, and is now able to prove the facts as to both as set forth.' Other facts will appear in the opinion.

Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court: