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prove the same, and who has or shall erect a dwelling thereon, shall be, and is hereby, authorized to enter with the register of the [630]land office *for the district in which such land may lie, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter section of land, to include the residence of such claimant, upon paying to the United States the minimum price of such land, subject, however, to the following limitations and exceptions," etc.

By this section it will be seen that the right of pre-emption was extended equally to unoffered and offered lands.

By section 14 it was provided, however, that the selection of unoffered lands should not delay the sale of such lands beyond the time which might be appointed by the proclamation of the President, nor should the provisions of the act be available to any person who should fail to make the proof and payment and file the affidavits required, under section 13 of the same act, before the day appointed for the commencement of the sales.

In regard to the so-called offered lands, it was provided by section 15 of the act as

follows:

cal office, as stated in section 15 of the act above quoted.

By the fifth section of the act approved March 3, 1843 (5 Stat. at L. 619, chap. 86), it was provided that settlers under the preemption act of 1841, upon unoffered land, should "make known their claims, in writ ing, to the register of the proper land office, within three months from the date of this act when the settlement has already been made, and within three months from the time of the settlement when such settlement shall hereafter be made, giving the designation of the tract and the time of settlement; otherwise his claim to be forfeited and the tract awarded to the next settler, in the order of time, on the same tract of land, who shall have given such notice and otherwise complied with the conditions of the law."

ment or make the proper affidavit within the twelve months, "the tract of land so settled and improved shall be subject to the entry of any other purchaser."

Taking these two acts of 1841 and 1843 and reading them together, it is seen that there was a difference between unoffered and offered lands by reason of the fact that on unoffered lands the right or privilege to secure land by a pre-emption filing continued up to the commencement of the public sale whenever that might be, and if that right or privilege had not been exercised and the "Sec. 15. And be it further enacted, That land was offered at public sale and not sold, whenever any person has settled or shall set- it then became subject to private entry by tle and improve a tract of land, subject at the the first applicant, while on offered lands the time of settlement to private entry, and right or privilege to secure them by a preshall intend to purchase the same under the emption filing continued for twelve months provisions of this act, such person shall in after the date of the settlement, and if the the first case, within three months aft-pre-emptor failed to file the declaratory stateer the passage of the same, and within the last thirty days next after the date of such settlement, file with the register of the proper district a written statement, describing the land settled upon, and declaring the intention of such person to claim the same under the provisions of this act; and shall, where such settlement is already made, within twelve months after the passage of this act, and where it shall hereafter be made, within the same period after the date of such settlement, make the proof, affidavit, and payment herein required; and if he or she shall fail to file such written statement as aforesaid, or shall fail to make such affidavit, proof and payment, within the twelve months aforesaid, the tract of land so settled and improved shall be subject to the entry of any other purchaser."

*Congress by an act approved May 20, 1862[632] (12 Stat. at L. 392, chap. 75), provided for the sale of public lands for homesteads, and since that time the practice of disposing of the public lands at public sale has gradually been abandoned, although the authority remained. The abandonment of these public sales resulted in giving to those who had made pre-emption filings upon unoffered land an uncertain time within which to prove or complete their proof and payment, because their time lasted until the day of the public sale proclaimed by the President. As these public sales were abandoned, the result was that these claimants were not under any obligation to make proof and payment at all.

The result of the passage of this act was to grant the right to pre-empt 160 acres of By the second section of the act approved [631]either offered or unoffered land, and that as July 14, 1870 (16 Stat. at L. 279, chap. 272), to the unoffered lands the filing of a pre- it was provided that "all claimants of preemption declaratory statement was not re-emption rights shall hereafter, when no quired, and the right of the pre-emptor to make due proof and payment remained until the time fixed by the proclamation of the President for the public sale of lands, at which time (if the proper proof and payment had not been made) the lands might be offered and sold to the highest bidder, and if not sold they would become subject to private entry by the first applicant at the minimum price. As to the offered lands, the right of the pre-emptor was dependent upon his filing a declaratory statement in the lo

shorter period of time is now prescribed by law, make the proper proof and payment for the lands claimed, within eighteen months after the date prescribed for filing their declaratory notices shall have expired: Provided, That where said date shall have elapsed before the passage of this act, said pre-emptors shall have one year after the passage hereof in which to make such proof and payment."

That act was amended by resolution No. 52, approved March 3, 1871 (16 Stat. at L.

601), by which twelve months in addition to | utes, there was no period within which a pre-[634] that provided in the act were given to claim- emptor was compelled to prove up and pay ants to make proof and payment. Adding for his claim, except that it should be done the twelve months given by this resolution before the land was offered at public sale to the eighteen months given by the act of by the proclamation of the President. The 1870 all claimants of pre-emption rights tract in dispute had not been so offered at were given thirty months to make the proper the date of the definite location of the road, proof and payment for the lands claimed. and it was held that J.'s time to make proof and payment had not expired at the time of the filing of the map of definite location, and that consequently his was an existing claim of record at that date.

These various provisions are found in the United States Revised Statutes from section 2257 to and including section 2267, the latter section giving the thirty months as stated.

We thus find that since 1871 all claimants of pre-emption rights lost those rights by operation of law, unless within thirty months after the date prescribed for filing their declaratory notices they made proper proof and payment for the lands claimed. [633] The filing of their declaratory statement and the record made in pursuance of that filing became without legal value if within the time prescribed by the statute proper proof and payment were not made. Whether such proof and payment were made would be matter of record, and if they were not so made the original claim was canceled by operation of law and required no cancelation on the records of the land office to carry the forfeiture into effect. The law forfeited the right and canceled the entry just as effectually as if the fact were evidenced by an entry upon the record. The mere entry would not cause the forfeiture or cancelation. It is the provision of law which makes the forfeiture, and the entries on the record are a mere acknowledgment of the law, and have in and of themselves, if not authorized by the law, no effect. The law does not provide for such a cancelation before it is to take effect. The expiration of time is a most effective cancelation.

In such a case as this, where the forfeiture occurs by the expiration of the thirty months within which to make proof and payment, the record shows that the claim has expired; that it no longer exists for any purpose, and therefore it cannot be necessary in order that the law shall have its full operation that an acknowledgment of the fact should be made by an officer in the land office. The law is not thus subject to the act or the omission to act of that officer.

The citation from the opinion of the court in Whitney v. Taylor shows that the statement was made with reference to that important and material fact; that it was an existing claim on the part of the claimant at the time of the filing of the map of definite location. Whether that claim were an enforceable one or whether there were facts which when brought to the attention of the government might induce it to cancel it, or the fact that the government might at its own suggestion cancel the claim, were held not to affect the question. The material fact that it was an existing claim was the fact upon which the case was decided.

In this case, such fact does not exist. There was no existing claim at the time of the filing of the map of definite location by the plaintiff herein. It had expired and become wholly invalid by operation of law. The thirty months had expired years before the filing of this map.

In Northern Pacific Railroad Company v. Colburn, 164 U. S. 383, 388 [41: 479, 480], it was stated in the course of the opinion that there were "other questions in this case, such as the significance of an expired filing,” which were not considered by the supreme court of the state or noticed by counsel, and which were left for consideration thereafter. This shows that the case of Whitney v. Tayor was not regarded by the court, or by the justice who wrote the opinion therein, as having a controlling bearing upon the question as to the effect of an expired filing under circumstances such as are developed in this case.

If claims which were of such a nature as to be described as "existing" were made in regard to any of the lands which otherwise [635] might be included in the grant to the railroad The case of Whitney v. Taylor, 158 U. S. company, we reiterate what was said in the 85 [39: 906], cited in the opinion of the cir- Dunmeyer Case (supra)—that it is not concuit court of appeals as decisive of the case ceivable that Congress intended to place those at bar, we think has not the effect given to parties, the railroad company and the variit by the learned court below. The land in ous claimants to the land, in the attitude of that case was within the granted limits of contestants, with the right in each to require the grant to the Central Pacific Railroad proof from the other of complete performance Company by the act of July 1, 1862. 12 of its obligations. On the contrary, we would Stat. at L. 489, chap. 120. That company say that if there were at the time of the filfiled its map of definite location March 26, ing of the map of definite location an actual 1864. It was held that the tract being sub-existing claim, even though it might turn ject to the pre-emption claim of one J., at out to be wholly unfounded, the land thus the time when the grant to the railroad com-claimed would not pass by the grant. This pany took effect, was excepted from the operation of that grant. It was subject to the claim of J. because in May, 1857, he had filed his statement, paid the fees required by law, and the filing was duly entered in the proper government record; and at that time, as has been seen by the above review of the stat

has been decided as lately as Northern Pacific
Railroad Company v. Sanders, 166 U. S. 620
[41: 1139]. In the case under consideration
there was, at the time of the filing of the map
of definite location, no claim within the mean-
ing of the statute.

The right of Flett, obtained by the filing

of his statement, was the right of pre-emp-| tion only. In other words, the right of purchase before any other person, and by the law of Congress that right ceased at the expiration of thirty months from the filing of that statement. Thereafter there was no claim, for it had ceased and determined, and with reference to the right it was of no more validity after the expiration of that time than if the statement had never been filed. After the filing of a statement and while the time is running within which to make proof, there is an inchoate right on the part of the preemptor which the government recognizes, as in Frisbie v. Whitney, 9 Wall. 187 [19: 668]. It was held in Johnson v. Towsley, 13 Wall. 72, 90 [20: 485, 489], that in case the preemptor failed to file his declaration of intention within three months from the time of settlement, as provided for in the fifth section of the act of 1843 (5 Stat. at L. 620, chap. 86), he nevertheless would have the right after the expiration of the three months, being in possession, to then make and file his declaration, provided no other party had made a settlement or had given notice of his intention to make one and no one would be in

jured by the delay. But the case is far from holding that after the declaration has been filed and the time in which to prove up and [636]make payment *upon his claim has wholly expired, that the claim nevertheless still exists in sufficient force to prevent the transfer of title to the company under the act of Congress, simply because the officer of the land office has failed to perform a mere ministerial duty by canceling of record a claim which has really ceased to exist by operation of law. A claim is not an existing one where by the record it appears that the right to make proof and payment has expired under the terms of the statute.

It appears that it has not been the practice of the Interior Department to enter any formal cancelation of an expired pre-emption filing upon the books of the office; its practice has been to take no action concerning them. They have simply been treated as abandoned claims. State of Alabama, 3 Land Dec. 315, 317.

Reference is made in the briefs to the circular of Commissioner Drummond, dated September 8, 1873, in which he says:

"By the operation of law limiting the period within which proof and payment must be made in pre-emption cases, such claims are constantly expiring, the settler not appearing within such time to consummate his entry. These expired filings are classed with those actually abandoned or relinquished." And again in the circular of November 8, 1879, the Commissioner said:

V.

what is termed an "expired filing" of the na-
ture of the one in suit has not been uniform.
It was in substance held in some cases that
such expired filing amounted to a claim with-
in the meaning of the statute, and that the[637]
land did not pass under the grant to the
railroad company. Emerson v. Central Pa-
cific Railroad Company, 3 Land Dec. 117;
same case on motion for a rehearing, 3 Land
Dec. 271; Schetka v. Northern Pacific Rail-
road Company, 5 Land Dec. 473; Allen
Northern Pacific Railroad Company, 6 Land
Dec. 520; Fish v. Northern Pacific Railroad
Company, 21 Land Dec. 165; same case on
motion for a rehearing, 23 Land Dec. 15. On
the other hand, we have been referred to the
cases of Northern Pacific Railroad Company
v. Stovenour, 10 Land Dec. 645; Meister v. St.
Paul etc. Railroad Company, 14 Land Dec.
624; Union Pacific Railroad Company v.
Hartwich, 26 Land Dec. 680; Wight x. Cen-
tral Pacific Railroad Company, 27 Land Dec.
182; Central Pacific Railroad Company v.
Hunsaker, 27 Land Dec. 297. The last two
cases cited touch the question very remotely,
it at all.

which our attention has been called is that of
Union Pacific Railroad Company v. Fisher, de-
cided February 1, 1899. 28 Land Dec. 75. In
that case the Secretary refers to the cases
which have been cited above, holding that an
expired filing excepted the land from a grant
to the railroad company, and he gives his rea-
sons for the decisions of the department in
those cases, which he thinks render them not
altogether in conflict with the other decisions
of the department.

The latest decision of the land office to

Although these decisions are somewhat inharmonious, it would seem that the practice of the department not to enter as canceled an expired filing has been uniform, and the record has been left to speak for itself..

For the reasons which we have already given, we think it was unnecessary to enter the cancelation on the record of the office in order to permit the law of Congress to have its legal effect. That effect should not be dependent upon the action or nonaction of any officer of the land department. When no proof and no payment have been made within the time provided for by the law, the record will show that fact, and that the right of the claimant has expired and the claim itself has ceased to exist.

A case of this kind, which simply necessi tates a reference to the record to ascertain[638] whether the filing had expired and with it the rights of the claimant, differs from the case where a filing may have become subject to cancelation; but the record does not show "Where application is made by a railroad it, and the right to cancel depends upon evicompany to select lands on which pre-emp-dence to be found dehors the record. In such tion filings have heretofore been made and case, while the facts might invalidate the canceled, or where the same have expired by claim, yet as they are not of record and relimitation of law, no other claim or entry ap-quire to be ascertained, the claim itself, pearing of record, you will admit the selections, in accordance with the rules governing in the premises herein communicated. No proofs by the companies concerning such claims will hereafter be required."

The effect given by the land department to

though possibly not enforceable, is still an
existing claim within the meaning of the law,
and it would remain such until cancelation
had taken place or some other act done le
gally terminating the existence of the claim.

Upon the facts as found in this case, it

4.

The unity, of such a contract cannot be severed or its effect altered by putting part of it in writing and leaving the rest in parol.

A written contract which appears to be legal on its face may be proved to be only part of a contract the other portions of which were illegal.

5. In any action brought in which it is necessary to prove an illegal contract in order to maintain the action, courts will not enforce It, nor will they enforce alleged rights directly springing from such contract.

seems to us that there was no claim against | 3.
the land at the time of the passage of the act
of 1864, and that years before the time of the
filing of the map of definite location in 1884
the claim that once existed (in 1869) in
favor of Flett had ceased to exist in fact and
in law, and the title to the land passed to
the railroad company by virtue of the grant
contained in the act of 1864 and by reason
of the filing of its map of definite location
March 26, 1884. When, therefore, the de-
fendant settled upon the land in April, 1886,
and applied to make homestead entry there-
on, his application was rightfully rejected
for the reason that title to the land had
passed to the railroad company, as above
mentioned, and therefore he was not entitled
to make the entry.

6.

An accounting of the profits of a partnership will not be awarded where the partnership was only part of a contract of which the other portions were illegal.

[No. 271.]

1899.

For the same reason, when John Flett, in Argued April 27, 28, 1899. Decided May 22, September, 1887 (submitted proof in support of his pre-emption claim, founded upon his declaratory statement filed April 9, 1869

(and which claim he had abandoned since ON WRIT OF CERTIORARI to the United

States Circuit Court of Appeals for the 1870), he was too late. His right had ex- Ninth Circuit to review a decree of that pired many years before 1884, at which time court in an action brought by John McMullen the right to the land passed to the company, against Lee Hoffman and on his death reand he had no right to prove up on his aban-vived against Julia E. Hoffman as the execudoned and expired claim.

The record shows that at the time of the commencement of this action the railroad company was the owner and entitled to the immediate possession of the land in controversy, and that it was entitled therefore to judgment in its favor, and the courts below erred in dismissing its complaint. [639] *The judgment of the United States Circuit Court of Appeals for the Ninth Circuit is reversed, and the case remanded to the Circuit Court for the Western Division, District of Washington, for further proceedings not inconsistent with the opinion of this court. So ordered.

trix of his will for an accounting of profits upon a contract with the city of Portland which the circuit court of appeals holds to be illegal, reversing the decree of the Circuit Court of the United States for the District of Oregon. Judgment of Circuit Court of Appeals affirmed.

See same case below, 69 Fed. Rep. 509, 75 Fed. Rep. 547, 48 U. S. App. 596, 83 Fed. Rep. 372, 28 C. C. A. 178. See also 170 U. S. 705, mem.

Statement by Mr. Justice Peckham:

*This action was originally brought by the[640] complainant McMullen against one Leo Hoff

Mr. Justice Harlan and Mr. Justice Mc-nan, and he having died before the trial,

Kenna dissented.

JOHN MCMULLEN, Petitioner,

v.

the action was revived against the defendant Julia E. Hoffman, as the executrix of his will. When the defendant is hereinafter spoken of the original defendant is intended.

The complainant filed his bill against the defendant seeking an accounting of profits that he alleged had been made by the defend

JULIA E. HOFFMAN, Executrix of Lee ant upon a certain contract for the construc-
Hoffman, Deceased.

(See S. C. Reporter's ed. 639–670.)

Secret agreement between bidders for public
contract, when illegal-action on contract
-unity of contract-contract partly writ-
ten and partly parol-partnership ac-
counting.

1. A secret agreement between bidders for a
public contract, by which their separate bids
are put in after mutual consultation and
agreement, and they have a common interest
In each bid, if any are accepted, and are to
share as partners in any contract obtained,
Is illegal in its nature and tendency. It is
not necessary to show the particular effect of

2.

the contract. as such contracts are condemned
by public policy.

One of the parties cannot maintain an ac-
tion on the valld part of the contract relat-
ing to the partnership, by discarding or omit-
ting to prove that portion which is illegal.

tion of what is termed the Bull Run pipe line and which contract was entered into between the city of Portland in the state of Oregon, and the defendant on or about March 10, 1893. The complainant bases his right to share in the profits of that contract by virtue of another contract in writing between himself and the defendant herein, executed March 6, 1893. That agreement reads as follows:

This agreement, made and entered into by and between Lee Hoffman, of Portland, Oregon, doing business under the name of Hoffman & Bates, party of the first part, and John McMullen, of San Francisco, California, party of the second part, witnesseth: That, whereas, said Hoffman and Bates have with the assistance of said McMullen at a recent bidding on the work of manufacturing and laying steel pipe from Mount Tabor to the head works of the Bull

Run water system for Portland, submitted the lowest bid for such work, and expect to enter into a contract with the water committee of the city of Portland for doing such work, the contract having been awarded to said Hoffman and Bates on said bid: [641] *It is now hereby agreed that said Hoffman and said McMullen shall and will share in said contract equally, each to furnish and pay one half of the expenses of executing the same, and each to receive one half of the profits or bear and pay one half of the losses which shall result therefrom.

And it is further hereby agreed that if either of the parties hereto shall get a contract for doing or to do any other part of the work let or to be let by said committee for bringing Bull Run water to Portland, the profits and losses thereof shall in the same manner be shared and borne by said parties equally, share and share alike.

Witness our hands and seals this 6th day of March, A. D. 1893.

John McMullen. Lee Hoffman.

[Seal.] [Seal.]

The contract for manufacturing and lay ing the steel pipe was awarded to the defendant at a public letting of the whole work at Portland of which the manufacturing and laying of the pipe was a part, and the whole work was divided into classes, and separate bids called for and received for each class.

The defendant put in bids in the name of Hoffman & Bates for several classes, while the plaintiff in the name of the San Francisco Bridge Company (of which he was an officer) put in separate bids for the same

classes.

[blocks in formation]

There were several other bids by different bidders for these various classes. The bid in the name of Hoffman & Bates for the manufacture and laying of the wrought iron or steel pipe from the head works to Mount Tabor being $465,722, was the lowest out of

[blocks in formation]

All these bids were before the committee on sideration at the time the award was made the part of the city, and were taken into conto the defendant. After the acceptance of his bid for the manufacturing and laying of the pipe the defendant entered into a contract with the city of Portland to do the work mentioned in such bid and commenced the performance of the contract as provided for therein. The work was duly completed and the city paid defendant the contract price for the same, retaining the percentage provided for therein, as security that the terms of the contract had been fully complied with.

The complainant alleges that defendant, after securing the contract, went on with the work thereunder, but refused to permit him to participate in the profits arising therefrom or to examine the books of the partnership, and that although he (complainant) furnished some of the capital and performed some of the services provided for in the con-[643] tract with the city, and participated in some of the expenses of the execution of the contention to the proper performance thereof, tract, and devoted some of his time and atand was at all times ready to do everything required of him by his agreement of partnership, yet that the defendant received all the moneys paid by the city and absolutely refused to account to him for any part thereof, and denied that he had any interest in or right to any portion of such moneys. The complainant, therefore, asked for an accounting between himself and defendant, as partners, and for a decree for the payment to him of one half the profits arising from the contract, the whole of which he alleged amounted to $80,000 (the courts below say the evidence shows they were $140,000); that a receiver might be appointed to take charge of the property of the partnership, its records, books, papers, etc., and that the defendant might be restrained during the pendency of the suit from making sale or other dispo sition of the tools, equipments, or other personal property belonging to the partnership, and from drawing from the city of Portland the moneys withheld by it on account of the contract, as well as any other money due for other work done by the defendant under the contract of partnership.

The answer of the defendant, while denying many of the allegations of the complaint, set up as a special defense the making of an agreement between the parties (of which the partnership agreement was a portion), by the terms of which they were to put in bids

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