« ForrigeFortsett »
The decision was made more than 8 years before the appeal therefrom was filed in the Interior Department.
Held-That the case should be dismissed for want of timely prosecution. DEPARTMENT OF THE INTERIOR,
Washington, D. C., 23d Oct., 1872. SIR: I have considered the case of John Beedon, pre-emption claimant to lot No. 2 of Sec. 33, and lot No. 5 of Sec. 34, T. 59 N., R. 28 W., Michigan, being a portion of the land known as the Fort Wilkins Reservation, and being an appeal from the decision of Commissioner Edmunds, one of your predecessors, made on the 3d day of February, 1864.
The notice of appeal was irregularly given, but waiving that, the appeal itself was not filed in this department until the 26th of September ultimo, being a period of more than eight years and a half after the decision was made.
I think the appeal has not been presented with due diligence, and that it would be against sound policy to interfere with the case after so great a lapse of time.
I dismiss the same for want of timely prosecution.
Very respectfully, your obedient servant,
B. R. COWEN, Acting Secretary.
HON. WILLIS DRUMMOND, Commissioner General Land-Office.
VI. QUESTION OF FRAUD.
The following three decisions show
1st. The old rule of the General Land-Office, that a stranger in interest at the date of a pre-emption entry will not subsequently be allowed to attack such entry on the ground of fraud.
2d. Modification of this rule, showing under what circumstances the Commissioner may investigate the question of fraud as to such entry after the same has been allowed.
3d. Practice of the General Land-Office under said modification.
W. O. GRUWELL.
DEPARTMENT OF THE INTERIOR, Washington, D. C., Jan. 14, 1873. SIR-I have considered the appeal from your decision of Aug. 14, 1872, in the matter of the application of S. W. Gruwell to file as a preemptor on lots 1 and 2, section 8, T. 8 S., R. 1. W., unoffered land, and with this object in view, for the cancellation of the prior cash entry of W. O. Gruwell, made Oct. 4, 1871.
W. O. Gruwell settled on the tracts in controversy Oct. 25, 1866, filed declaratory statement Jan. 19, 1867, and Oct. 4, 1871, upon due * See Toll v. Pettingill, Copp's Land Owner, Vol. II, p. 83.
proof and the usual affidavit, entered the land and paid for the same with cash.
S. W. Gruwell, July 1, 1872, applied at the local office to file on the land as a pre-emptor, alleging settlement, June, 1872, and alleging further, that the prior entry of W. O. Gruwell was consummated by fraud; that shortly after settlement the said W. O. Gruwell mortgaged the land to one W. C. Overfelt; that this mortgage was outstanding at the time of entry; that shortly after entry such mortgage was foreclosed by decree of court; that a sale of the premises under such decree was made by the sheriff, and that the land was purchased at such sale by said W. C. Overfelt. Exhibits attached to this application show these allegations to be true.
You direct upon this showing, that the entry of W. O. Gruwell be cancelled, and from this decision an appeal has been taken to the Department by W. C. Overfelt.
Although the entry in question was undoubtedly consummated by fraud, and although there can be no question that by taking the affidavit prescribed W. O. Gruwell thereby rendered himself liable to indictment for perjury, still, I am nevertheless of the opinion that this case comes within the well-established rule of your Office and the Department, that an entry once made upon satisfactory proof to the officers having a proper jurisdiction of the subject-matter, cannot be subsequently attacked on the ground of fraud by a stranger in interest at the date of entry.
In the case of Young v. Dennis, Jan. 15, 1862, the Secretary of the Interior, in his decision on an appeal from your Office, says: "After an entry has once been permitted by the Government, no subsequent settler can be allowed to impeach the entry on the ground of fraud." This ruling was followed by the Department in the cases of E. B. Hyde, T. S. Shaw, and S. I. Mickley, Nov. 25, 1871, and again, affirming your decision, in the case of James v. Bonesteel, Jan. 6, 1872. In the latter case, the Assistant Attorney-General in his opinion says: "A claimant who, having made a settlement, conforms to all the requirements of law to the satisfaction of the officers having a proper jurisdiction of the claim, and who is allowed to make an entry, cannot, in my opinion, be disturbed on subsequent allegations of fraud by a stranger in interest at the time of sale."
S. W. Gruwell was a stranger in interest at the time of sale, and under the rule cannot be allowed to attack the entry in question.
The patent, when issued, can be set aside by proceedings in a court of competent jurisdiction on the ground of fraud, and, as before stated, it is clear that W. O. Gruwell has made himself liable to indictment for perjury.
I reverse your decision, and return herewith the papers transmitted with your letter of Dec. 12, 1872.
B. R. COWEN, Acting Secretary. HON. WILLIS DRUMMOND, Commissioner General Land-Office.
ALONZO C. BUNTON.
DEPARTMENT OF THE INTERIOR,
Washington, D. C., Oct. 20, 1873.
SIR: I have considered the appeal taken by Alonzo C. Bunton from your decision of May 6 last. ordering a rehearing for fraud in his pre
emption cash entry made July 1, 1872, of E. S. W. 4, section 34, T. 93, R. 47, Sioux City district, Iowa.
This case has previously been before the Department, then under the title of Roderick Finlayson v. said Bunton, and by its decision of Jan. 13, last, the contest for fraud on charges by Finlayson was dismissed, on the ground that he, being a stranger in interest, could not be allowed to allege fraud against the completed entry of Bunton. You were, however, informed that if you had "record evidence on file in your Office, not derived in any way from strangers in interest at the date of entry, tending to show fraud in such entry, you have jurisdiction and power to order an investigation before the local officers, to be strictly and carefully confined to the particular point or points in which such record evidence in your Office indicates or suggests fraud in the entry."
You thereupon, in a letter of May 6, 1873, recited that the records of your Office showed that one Alonzo C. Bunton was plaintiff in the case of Alonzo C. Bunton v. Mary Jane Vincent, involving the right of the latter to a certain described tract of land in the West Point land district, Nebraska; that he therein made affidavits to having settled on said land in August, 1870, and that the case was pending before your Office and the Department until July 31, 1872, when it was finally decided in favor of said Vincent. You deemed this evidence of fraud in the pre-emption case of Alonzo C. Bunton for the tracts in issue in this case in the Sioux City district, Iowa, (D. S. alleging settlement Oct. 23, 1871, and proof and payment made July 1, 1872,) and you directed a suspension of the entry in Iowa, and an investigation as to the identity of the Bunton in Nebraska with the Bunton in Iowa.
You have sent up nothing but the decisions in the case and the arguments on appeal, and I am left in ignorance as to what may have led you to think the two identical. In your letter ordering the investigation, you do not assert any reason for your conclusion except the identity of names. This is, under the circumstances of this case, in my opinion insufficient.
But were the identity established, the fact of having contested an entry in Nebraska in 1870 and 1871, after settlement on land there, does not establish fraud in subsequent pre-emption settlement, filing, and entry made in Iowa in 1871 and 1872. It certainly is not sufficient to warrant the disturbing of completed prima facie bona fide entry.
Before I conclude this communication, I desire to modify my letter of Jan. 13, 1873, so as to allow you, in all cases where you have evidence tending to show fraud in an entry, to order an investigation before the local offices, which shall inquire into the specific fraud embraced in such evidence. This modification, however, is not to be so construed as to justify a stranger or party without interest in making an allegation of fraud into which you must inquire. My purpose is to prevent you from being limited to "record" evidence when inquiring into such fraud, as you seem to be by the departmental letter herein referred to. I reverse your decision ordering a reinvestigation, and return the papers in the case transmitted with your letter of July 5 last. Very respectfully, C. DELANO, Secretary. HON. W. DRUMMOND, Commissioner General Land-Office.
W O. GRUWELL.
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE, Washington, D. C., Feb. 24, 1874.
REGISTER AND RECEIVER, San Francisco, Cal.:
GENTLEMEN:—I have examined the cash entry 3,374, by Wm. O. Gruwell, lots 1 and 2, sec. 8, 8 S., 1 W., made Oct. 4, 1871, and find as follows:
The records show that Gruwell filed D. S. 2,392, January 19, 1867, alleging settlement October 25, 1866, and on the 4th of October, 1871, made proof and payment for the land as above recited. The entry was examined, and, upon the proof as then offered, was approved May 17, 1872, for patent. Pending the issue of the patent, on July 12, 1872, the local officers forwarded an application of S. W. Gruwell, asking that he be allowed to file on the land, alleging settlement June 29, 1872, and that a rehearing might be ordered in the matter of the cash entry of Wm. O. Gruwell, alleging fraud on his part. In support of this allegation of fraud, he submits a certified copy of a mortgage made by the said Wm. O. Gruwell, dated November 6, 1866; also a certified copy of the certificate of sheriff's sale, in which mention is made of the decree of court foreclosing the said mortgage. This sale by the sheriff was made May 29, 1872, subsequent to the entry of Gruwell. August 14, 1872, you were notified that the papers forwarded with your letter of 13th July prior had been considered, and were deemed sufficient, without ordering an investigation, to show fraud on the part of the preemptor, and his entry was held for cancellation. December 12, 1872, the papers were transmitted to the honorable Secretary of the Interior, on the appeal taken by W. C. Overfelt, the purchaser of the land at the sheriff's sale. January 14, 1873, the Assistant Secretary of the Interior returned the papers in the case and reversed my decision on the ground that this case came within the well-established rule "that an entry once made upon satisfactory proof to the officers having proper jurisdiction of the subject-matter cannot be subsequently attacked on the ground of fraud by a stranger in interest at date of entry."
Subsequent to this action, under date of October 20, 1873, the honorable Secretary of the Interior modified his former ruling in cases of this character, and instructed this Office that in "all cases where you have evidence tending to show fraud in an entry, to order an investigation before the local officers, which shall inquire into the specific fraud embraced in such evidence. This modification, however, is not to be so construed as to justify a stranger or a party without interest in making an allegation of fraud into which you must inquire. My purpose is to prevent you from being limited to record evidence when inquiring into such fraud."
In view of these instructions of the honorable Secretary, and of the evidence on file in this Office tending to show fraud on the part of the said Wm. O. Gruwell, I have to instruct you to make an official investigation of the matter, and for your guidance I enclose the certified copies herein before mentioned. At this investigation you will inquire specifically into the question of the mortgage, the date of making the foreclosure, and the sale under the decree of court foreclosing the same. This investigation is, ordered to determine the validity of said entry. No stranger must be allowed to contest the entry or become a party to
the investigation. The validity of the mortgage and the identity of the land and parties are necessary to be established.
You will notify the pre-emptor and the present owner of the premises of a day when the matter will be investigated, and allow them to submit any proper defence.
Proceed with all reasonable expedition to carry out these instructions, and when done, forward the papers with your joint opinion on the same to this office, referring to this as G by date.
WILLIS DRUMMOND, Commissioner.
VII. CORRECTION OF ERRORS AND REPAYMENT. No. 650.
CIRCULAR NO 17.
DEPARTMENT OF THE INTERIOR,
GENTLEMEN-Numerous applications to correct errors in entries of the public lands having been forwarded to this Office without being properly supported by testimony, it is deemed advisable to collect and present in one view all the legislative enactments, of a general character, upon the subject, with such explanatory remarks as are deemed neces
The acts authorizing corrections of errors in entries are the following, viz:
An Act providing for the correction of errors in making entries of land at the land-offices.
[SEC. 1.] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in every case of a purchaser of public lands, at private sale, having entered, at the land-office, a tract different from that he intended to purchase, and being desirous of having the error in his entry corrected, he shall make his application, for that purpose, to the register of the land-office; and if it shall appear, from testimony satisfactory to the register and receiver of public moneys, that an error in the entry has been made, and that the same was occasioned by original incorrect marks made by the surveyor, or by the obliteration or change of the original marks and numbers at corners of the tract of land, or that it has in any otherwise arisen from mistake or error of the survey or or officers of the land-office, the said register and receiver of public moneys shall report the case, with the testimony, and their opinion thereon, to the Secretary of the Treasury, who shall have power to direct, if in his opinion it shall be proper, that the purchaser shall be at liberty to withdraw the entry so erroneously made, and that the moneys which had been paid shall be applied in the purchase of other lands in the same district, or credited in the payment for other lands which shall have been purchased at the same office.
Approved March 3, 1819.