Parsons v. Venzke

On July 25, 1892, the United States issued a patent for the land in controversy to Gustav Venzke, one of the defendants in error. The other defendants in error are his mortgagees. On January 11, 1883, one Willis B. Simpkins made a pre-emption entry of the land, and received a receiver's final receipt, the land at that time being public, and subject to pre-emption entry under the laws of the United States. On February 8, 1883, he conveyed the land to Charles J. Wolfe, through whom, by foreclosure of a mortgage, plaintiff in error acquired her title.

On September 26, 1884, W. W. McIlvain, a special agent of the land department of the United States, reported to the commissioner of the general land office at Washington, as the result of his investigations, that the pre-emption entry of Simpkins had been fraudulently and unlawfully made. Proceedings for an investigation of this charge were ordered before the local land officers. Notice was duly given by publication. Simpkins made no appearance, but the plaintiff in error appeared by attorneys. The investigation was carried on in the local land office, and thereafter in the general land office at Washington, and the proceedings reviewed by the secretary of the interior, the plaintiff in error being a party to all those proceedings. They resulted in a cancellation of the entry on the ground that it had been fraudulently and unlawfully made, and the land was restored to the public domain.

Thereafter Venzke took those proceedings which culminated in the patent, whereupon the plaintiff in error commenced this suit in the district court of Richland county, N. D., to have him charged as trustee of the legal titlle for her benefit. In that court a decree was entered in favor of the defendants, which, having been affirmed by the supreme court of the state (16 N. W. 1036), has been brought here on writ of error.

On March 3, 1891, congress passed an act (26 Stat. 1098), section 7 of which contains this provision:

'And all entries made under the pre-emption, homestead, desert-land, or timber culture laws, in which final proof and payment may have been made and certificates issued, and to which there are no advers claims originating prior to final entry and which have been sold or incumbered prior to the first day of March, eighteen hundred and eighty-eight, and after final entry, to bona fide purchasers, or incumbrancers, for a valuable consideration, shall, unless, upon investigation by a government agent, fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfactory proof to the land department of such sale or incumbrance.' Seth Newman, for plaintiff in error.

W. H. Standish, for defendants in error.

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