Bailey v. Sanders

MORROW, Circuit Judge (after stating the facts as above). The first question to be determined is whether the bill of complaint shows such equity in the complainant as to entitle him to a review of the action of the Land Department with respect to the land in controversy. To give the Circuit Court jurisdiction to review the action of the Land Department upon allegations of the character contained in this bill, it •must first appear from the bill of complaint that the complainant has at least an equitable claim to the land in question. What are the facts alleged with respect to this claim? They are that one Hately, on the 24th day of January, 1901, desiring to avail himself of the benefits, privileges, and rights under the provisions of section 2301 of the Revised Statutes of the United States, as amended" by act of Congress of March 3, 1891, and the act of May 17, 1900, filed in the Land Office of the United States at Lewiston, Idaho, his notice of intention and desire to make final proof of his residence upon and improvement and cultivation of said tract of"land and pay the minimum price therefor as prescribed in said act of March 3, 1891, and said act of March 17, 1900; that bn the- 9th day of March, 1901, said Hately appeared before the United States commissioner and submitted his proof of residence upon and improvement and cultivation of said tract of land and paid to the register and receiver of said Land Office “the sum asked for said land,” to wit, the sum of $200, or $1.25 per acre for 160 acres contained in the tract. Section 2301 of the Revised Statutes as amended provides "as follows : "Nothing in this chapter shall be so construed as to prevent any person who shall hereafter avail himself of the benefits of section twenty-two hundred and eighty-nine from paying the minimum price for the quantity of land so entered at any time after the expiration of fourteen calendar months from the date of such entry, and obtaining a patent therefor, upon making proof of settlement and of residence and cultivation for such period of fourteen months, and the provision of this section shall apply to lands on the ceded portion of the Rioux reservation by act approved starch second, eighteen hundred and eighty-nine in South Dakota and in the state of Nebraska, tout "shall not relieve said settlers from any payments now required by law.” But with respect to lands embraced within the limits of the ceded portion of the Nez Perce Indian reservation section 16 of the act of Congress of August 15, 1894 ( 28 Stat. 326 , 332, c. 290), provided that the lands ceded and conveyed to the United States should be open to settlement by the proclamation of the President, and' should be subject to disposal only under the homestead, town-site, stone and *671 timber, and mining laws of the United States, except the sixteenth and thirty-sixth sections, which were reserved for common school purposes. It was further provided that each settler on said land should, before making final proof and' receiving a certificate of entry, pay to the United States for the land so taken by him in addition to the fees provided by law the sum of $3.75 per acre for agricultural lands, one-half of which should be paid within three years from the date of the original entry. By proclamation of the President of the United States these lands were opened to settlement at noon on the 18th day of November, 1895 (29 Slat. 873, 875). The act of January 26, 1901 ( 31 Stat. 710 , c. 180 [U. S. Comp. St. 1901, p. 1620]), provided: “That the provisions of section twenty-three hundred and one of the Revised Statutes of the United States, as amended, allowing homes lead settlers to commute their homestead entries be, and the same hereby are, extended to all homestead settlers affected by or entitled to the benefits of the provisions of the act entitled ‘An act providing for free homesteads on the public lands for actual and bona tide settlers, and reserving the public lands for that purpose,' approved the seventeenth day of Alay, Anno Domini nineteen hundred: Provided, however, that in commuting such entries the entryman shall pay the price provided in the law finder which original entry was made.” The original entry in this case was made under the act of August 15, 1891, which fixed the price of agricultural land within the ceded portion of the Nez Perce Indian reservation at $3.75 per acre. Hately, in an affidavit dated January 30, 1902, attached to the complaint and made a part thereof, says: “That at the time that he made said entry and at. the time offering proof for commutation of the same he was informed and believed that the land was minimum laud and could be commuted at the rate of $1.25 per acre; but since that time he has been informed that said land is within the Nez Perce Indian reservation, and cannot be commuted at the rate of $1.25 per acre, but must he commuted at the rate of $:>.75 per acre.” It seems extraordinary that a settler could go upon public land in the vicinity of an Indian reservation and make a homestead entry within the recently ceded portion of such reservation without knowing that the land had been a portion of the reservation. Such a statement at least excites suspicion. But when was Hately informed that the land could only be commuted at the rate of $3.75 per acre? It is stated in the bill that on April 2. 1901, Hately conveyed the land by deed to Beach in consideration of the sum of $800, and we are informed by the affidavit of the complainant herein, also attached to the complaint and made a part thereof, that for this deed Hately was paid by the complainant, as attorney for Beach, the sum of $200 in cash and given a sight draft on Beach for the sum of $600; that this draft was not paid by Beach because he had been advised that the homestead entry could not be approved. There is an unsworn statement by Hately in the proceedings before the 1 ,and Office in which he says: “That some weeks after said Dailey gave me said sight draft on Beach, I sent the same to Lewiston through the bank, and as I am informed the same was presented to Beach and payment thereof was declined, and said Beach advised me that he had held up the payment of said draft on account of an *672 order of tbe Commissioner of tbe General Land Office requiring an additional payment. “That as X am also informed, prior to the presentation of said draft the Commissioner of the General Land Office made an order suspending said entry and requiring that $3.75 per acre be paid for commutation of said entry, instead of $1.25 per acre, and that said Beach had received that information before the draft was presented and did not pay the draft on that account.” This statement is fully corroborated by the acts and' statements of the parties, as they appear in the record. It further appears that on November 7, 1901, the officers of the Land Department officially notified Hately -that he was required to make an additional payment of $406, or the full price of $3.75 per acre in payment of the land. Did the parties in interest, either Hately, Beach, or the complainant, promptly pay or tender the amount required to make full payment for the land as required by law? It was not until October 31, 1902, that Beach, the grantee of Hately, by the complainant as his attorney, tendered to the register and receiver the sum of $406 in full payment for the land. In Hately’s affidavit dated January 30, 1902, he says: “Affiant does not intend to pay the balance of $400 and commissions necessary, but intends to relinquish said entry, as he is not able to pay the balance due under the same.” The tender was made a year and a half after Hately had sold or attempted to sell the land to Beach; nearly a year after Hately had been officially notified to make the additional payment of $406; nine months after Hately had notified the Land Office that he would not pay the balance, but would relinquish the entry; and six months after the land had been settled upon and entered as a homestead by Sanders and his homestead rights had attached. If the parties seeking to obtain this land under Hately’s commuted homestead entry were acting in good faith, why did they not after being advised promptly tender the full amount required by law to purchase the land? The law was perfectly clear that the price of the land was $3.75 per acre, and an appeal to the Secretary of the Interior upon such a' question did not justify the parties in delaying a year and a half in maldng the tender after having knowledge of the law and a year after having received official notice from the Land Department. Furthermore, this tender has not been made good in this action. There is no offer in this case to pay to the United States the full amount required to obtain the land as a commuted homestead entry. The allegations of the bill do not show good faith in the proceedings before the Land Department on the part of the complainant and those from whom he has derived his title; on the contrary, the inference to be drawn from the facts stated is that there was an effort on the part of Hately and the complainant, acting as the attorney for Beach, to obtain this land for a sum less than and under conditions other than those provided by law. The complainant failing to show in his bill that he has an equitable claim to the land in controversy, the bill was properly dismissed. The decree of the court below dismissing the bill is therefore affirmed.