Orchard v. Alexander

While these two cases differ in their particular facts, they agree in the questions involved, and for convenience may be considered together. As the opinion of the supreme court of the state of Washington was filed in the second case, the special facts of that will be stated. The action was commenced in the district court of the territory of Washington, sitting in and for the county of Pierce.

The complaint alleged that the plaintiff was the owner and entitled to the possession of a certain described tract or parcel of real estate situate in the county of Pierce, and prayed judgment for the recovery of possession, together with rents, issues, and profits.

The answer, beyond a general denial, set up by way of equitable defense that on December 20, 1880, the land described in plaintiff's complaint was unoccupied, unappropriated public land of the United States, and that on that day the plaintiff filed his declaratory statement therefor under the preemption laws of the United States; that on February 13, 1883, he made his final proof, and on March 12, 1883, his cash entry was allowed by the register and receiver of the local land office; that on August 7, 1883, the defendant filed in the office of the commissioner of the general land office, and afterwards with the local land officers, his corroborated affidavit, in which he alleged that plaintiff had at no time established his residence on the land; that he had failed to improve and cultivate the same as required by law, and that the cash entry had been procured by fraud; that on May 16, 1885, the commissioner of the general land office ordered a hearing on those charges before the local land officers, and that in pursuance of such order the plaintiff and defendant appeared before those officers on July 13, 1885, for a trial of the questions raised and presented by the defendant's affidavits; that a trial was had, evidence was submitted, and the case argued by counsel, and thereupon the local land officers found as facts that the plaintiff had at no time established his residence on the land embraced in his entry, and that he had failed to improve and cultivate the land as required by law, and, as a conclusion of law therefrom, that the plaintiff's entry should be canceled; that the plaintiff appealed to the commissioner of the general land office, who, on June 3, 1886, affirmed the decision of the local land officer; that he took a further appeal to the secretary of the interior, who, on March 31, 1888, sustained the commissioner of the general land office, and canceled plaintiff's entry; that, after, this defendant filed upon the land under the homestead laws of the United States, made final proofs thereon, paid to the government of the United States the required price, and on July 26, 1889, received from the receiver of the land office a patent certificate for the land, by virtue whereof he claimed to be the owner and entitled to the possession.

To this answer an amended reply was filed, in which the plaintiff alleged that the proceedings initiated by the defendant were wholly void, on the ground that the officers referred to had no jurisdiction over the lanas or of the plaintiff, for the reason that the United States had theretofore sold and disposed of the land to plaintiff, and received from him the sum of $400, in consideration of which sum the United States had undertaken and agreed to execute and deliver to him a patent. He set forth in detail that he had, in accordance with the pre-emption laws of the United States and the requirements of the general land office, published notice of his intention to make final proof; that on the date named in such publication he had appeared with his witnesses before the local land officers, and made such final proof, and paid to them the land-office fees and the sum of $400, the legal price of the land; that they had accepted such final proof as sufficient, and received such sum of money, and executed and delivered to him a duplicate receiver's receipt therefor, and that thereupon he became entitled to have and receive from the United States, in the due course of the administration of the general land office, a patent for the land; that no lawful proceedings had ever been taken by the United States to rescind the contract so entered into between the government and himself, nor had the sum of $400, or any part thereof, ever been repaid or tendered to him by the government. He denied that the defendant had, in his affidavits, alleged that the plaintiff failed to improve and cultivate the land as required by law, or that his entry had been procured by fraud. He also denied that the decision of the commissioner of the general land office was affirmed by the secretary of the interior, except as to finding that plaintiff had not made his residence upon the land.

To this amended reply the defendant demurred, on the ground that it did not contain facts sufficient to constitute a defense to the affirmative matter set up in the answer. The demurrer was sustained, the case at the time of the hearing being in the superior court of the state of Washington in and for the county of Pierce, Washington having been admitted as a state since the commencement of the action. No further amendment being desired, judgment was entered on the pleadings, in favor of the defendant. This judgment was affirmed by the supreme court of the state (2 Wash. 81), whereupon plaintiff brought this writ of error.

W. H. Prichard, S. F. Phillips, and F. D. McKenney, for plaintiff in error.

C. C. Lancaster, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.