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time up to the time of the filing of the affidavits continued to reside upon and improve the land. It did not appear that the purpose of the reconveyance and the return of Jacobus to the land was to obtain a title for the benefit of McCord and McLeod.
Said logs amount to about 30,000 feet; and | he again went upon the land, and from that he agrees not to cut, nor allow any of his men to cut or destroy, any other timber. And in consideration of said logs, I, John F. Hill, being duly sworn, on oath, says that he is the man who made a soldier's application for said N. W. of 17-48-8 W.; and I make this affidavit for the purpose of relinquishing all my right, title, and interest in and to said claim, which I do unto the United States. Signed, sealed, and delivered and agreed upon this 4th day of January, A. D. 1893. Daniel McLeod. In presence ofW. H. Packard. Tracy Lyon.
W. E. McCord. [Seal.]
Prior to the commutation, and on March 3, 1891, Congress had passed an act amending § 2301 of the Revised Statutes so as to read as follows:
On or about September 30, 1893, Hill filed in the local land office contest affidavits and objections to the receiving of said offered supplemental proofs. A hearing was had upon this contest and a large number of witnesses sworn. On August 9, 1894, the local land officers decided the contest in favor of Hill, and filed an opinion, in which they held that the residence of Jacobus up to the time of the sale and conveyance to McCord and McLeod in December, 1892, was fairly satisfactory, but that his residence after the sale and conveyance was for the sole purpose of enabling him to make proof to se"Nothing in this chapter shall be so con- cure title for them, and that the land was strued as to prevent any person who shall reconveyed to him for that purpose alone. hereafter avail himself of the benefits of § On appeal to the Commissioner of the Gen2289 (U. S. Comp. Stat. 1901, p. 1388), from eral Land Office the findings of the local paying the minimum price for the quantity land officers were affirmed. On further ap of land so entered, at any time after the ex- peal to the Secretary of the Interior the piration of fourteen calendar months from prior decisions were, on April 28, 1896, afthe date of such entry, and obtaining a pat- firmed without any restatement of facts. ent therefor, upon making proof of settle- On June 3, 1896, Congress passed an act conment and of residence and cultivation fortaining the following provisions (29 Stat. at such period of fourteen months." 26 Stat. L. 197, chap. 312, U. S. Comp. Stat. 1901, p. at L. 1098, chap. 561, U. S. Comp. Stat. 1409): 1901, p. 1406.
"That whenever it shall appear to the Neither Jacobus nor the land officers had Commissioner of the General Land Office any actual knowledge or information of this that an error has heretofore been made by enactment at the time of the commutation. the officers of any local land office in receiv On May 15, 1893, the Assistant Commission- ing premature commutation proofs under the er of the General Land Office of the United homestead laws, and that there was no fraud States, having had his attention called to practised by the entryman in making such the act, notified Jacobus that he must fur- proofs, and final payment has been made and nish supplemental proofs showing residence a final certificate of entry has been issued to and cultivation for a period of fourteen the entryman, and that there are no adverse months subsequent to July 6, 1892, together claimants to the land described in the cerwith an affidavit that he had not alienated tificates of entry, whose rights originated the land. Of course, compliance with this prior to making such final proofs, and that was impossible, for Jacobus had already no other reason why the title should not vest made a conveyance. On September 1, 1893, in the entryman exists except that the comMcCord and McLeod, with their wives, made mutation was made less than fourteen to Jacobus a deed of conveyance of the land months from the date of the homestead setfor an expressed consideration of $4,300, and tlement, and that there was at least six Jacobus at the same time executed to them months' actual residence in good faith by a mortgage upon the lands to secure the pay- the homestead entryman on the land prior ment of the purchase money. On or about to such commutation, such certificates of enSeptember 12, 1893, Jacobus caused to be try shall be in all things confirmed to the made and filed in the local land office, in re-entryman, his heirs and legal representasponse to the order of supplemental tives, as of the date of such final certificate proofs, certain affidavits and proofs, from of entry, and a patent issue thereon; and which it appeared that the land was con- the title so patented shall inure to the benveyed to McCord and McLeod and re-efit of any grantee or transferee in good conveyed, as hereinbefore stated; that faith of such entryman subsequent to the Jacobus retained 2 acres of the land, date of such final certificate; Provided, That and shortly after the sale of the said this act shall not apply to commutation and premises, and on or about February 20, 1893, homestead entries on which final certificates
have been issued, and which have heretofore | reopened for consideration. Michigan Land been canceled, when the lands made vacant & Lumber Co. v. Rust, 168 U. S. 589-592, 42 by such cancelation have been re-entered under the homestead act.
L. ed. 591, 592, 18 Sup. Ct. Rep. 208, and cases cited. It is insisted that the validity "Sec. 2. That all commutations of home- of the original entry was relitigated in the stead entries shall be allowed after the ex-land office in pursuance of the contest made piration of fourteen months from date of settlement."
by Hill in October, 1893, and a different conclusion reached. While the power of reThereupon Jacobus made a motion before examination is not to be doubted, yet a decithe Secretary of the Interior for a review of sion upon a question of fact, once made in a the decision of April 28, 1896, and also to special proceeding finally terminated, should confirm his entry under the authority of said not be regarded as overthrown by findings in act of June, 1896, which motions were de-a subsequent proceeding in the Department nied. A patent was subsequently issued to Hill.
unless it appears that those findings directly overrule, or are necessarily inconsistent with, the prior decision. The application of Hill,
Messrs. W. F. Bailey and W. H. Stafford in 1893, to contest the entry of Jacobus, for plaintiff in error.
Messrs. Louis K. Luse, Lyman T. Powell, and A. L. Sanborn for defendant in error.
Mr. Justice Brewer delivered the opinion of the court:
There are two well-settled rules of decision, invoked respectively by the parties. One, that findings of fact made by the Land Department in the progress of a contest before it are conclusive upon the courts; the other, that questions of fact decided by a state court are not subject to review by this court in proceedings on error.
Upon the record these questions of fact and law appear: First. Was the original entry allowed to Jacobus on July 6, 1892, rightful? In other words, was his evidence of settlement, occupation, and good faith true, and, if so, did it entitle him to priority over Hill, his contestant? Second. If that entry was valid, was the commutation entry made on September 20, 1892, illegal? Third. If so, was the defect which invalidated it subject to removal under the act of June 3, 1896 Fourth. If removable, was there anything in the conduct of Jacobus or his grantees after the original entry to prevent the removal?
charged as a basis of contest that Jacobus never settled on the land in good faith, but for the purpose of speculation; that he did not reside on the land during the next six months preceding the making of his final proof, and that he had sold the land to one W. E. McCord. A hearing was had upon this contest before the local land officers, and quite a volume of testimony taken. Their decision was adverse to Jacobus. It was affirmed by the Commissioner of the General Land Office, and reaffirmed by the Secretary of the Interior. In their decision the local land officers stated the questions to be considered in these words:
"Letter 'H' of November 18, 1893, directed this office to order a hearing on the charges.
"The two questions to be passed upon are: (1) Did Jacobus abandon the land? (2) Was the sale of the land to McCord and McLeod a bar to the offering of supplemental proof?"
And upon the first question they found as follows:
"Upon the first point the testimony of the witness is extremely conflicting. It is admitted by Jacobus that he worked at his trade in Superior and Iron River most of the time during his occupancy of the land, but
testimony of Mrs. Jacobus and numerous other witnesses that her residence was upon the land, barring certain absences on account of sickness and visits. Their cabin and its housekeeping equipment were superior to those of most homesteaders, and the clearing, in extent and cultivation, compared favorably with that of others in the same neighborhood.
With reference to the first question, it ap-it seems also fairly well established by the pears that the original entry to Jacobus followed a contest between himself and Hill. In that contest testimony was taken before the local land officers upon the question whether Jacobus had performed the acts required of a settler upon public lands, and, upon a review, the Commissioner of the General Land Office, on April 29, 1892, found in favor of his settlement, residence, and improvements, and allowed the entry. No appeal was taken from this decision, and if nothing else appeared the findings would obviously be conclusive in the courts as between Jacobus and Hill. It is undoubtedly true that, until the legal title has passed from the government, proceedings in the land office are in fieri, and a question, whether of fact or law, may be
"After learning that supplemental proof would probably be required, Mrs. Jacobus returned to the land in February, 1893, where she remained about a week, when she returned to Iron River and remained for some weeks while being treated for rheumatism. She made a brief visit to the claim in March, went there again in the latter part of May,
remaining two weeks, and returned for the | his trade; he made occasional visits to the same time in July. This was apparently land on the Sabbath day. her last stay upon the land until after supplemental proof was offered, September 20. A small crop of vegetables and hay was raised that season, as in the two years before.
"Upon the whole, the residence of Jacobus upon the land was fairly satisfactory until after the offering of his first proof; but it is clear that his subsequent residence was for the sole purpose of enabling him to make proof in order to secure title for his transferees."
"It also appears that the defendant rented three rooms in Iron River after he had sold the land, and he, with his wife, moved into them; that after defendant learned that he was required to furnish supplemental proof, because his commutation was premature, his wife moved back to the land, but defendant still remained in Iron River, making occasional visits to the land on the Sabbath and returning the same day."
Obviously the time of occupation referred to was after the commutation. This is made clear by a comparison of this opinion with that of the local land officers. If other grounds were relied on than those stated in the opinion of the local land officers, they would have been distinctly stated, and the fact that the decision was based upon the
After this they considered the effect of the sale of the land to McCord and McLeod, and in so doing commented upon the character of the occupation by Jacobus and his wife during the spring and summer of 1893, closing with a decision in these words: "We are of the opinion therefore, that Jacobus' supple-character of the occupation and improvemental proof cannot be sustained, and that the entry should be canceled and a preference right of entry awarded the contestant, Hill."
Apparently the character of the occupation and improvements by Jacobus prior to the original entry of July 6, 1892, was not a matter considered by the local land officers, although it is true that there was some testimony respecting it. They did not pretend to disturb the approval of the sufficiency of Jacobus' occupation and improvements made in allowing that entry after the conclusion of the original contest between Hill and Jacobus. They assumed that that matter was already settled. This is evident from the two questions which they say were presented, and if they considered it at all, they doubtless thought the testimony was not such as to justify any change in the previous conclusion. This decision was affirmed by the Commissioner of the General Land Office. In his opinion, after reciting the contest, the decision, and the grounds of appeal, the fact of the commutation of the homestead entry, the direction to Jacobus to furnish supplemental proof, as the commutation was premature, he says:
"It is shown by the evidence that defendant had a small log house on the land; that it was well finished and well furnished; that he had about 2 acres cleared; that the improvements were worth about $200. He did not have any stock of any description, no chickens or other poultry; that on December 27, 1892, defendant sold said land to David McLeod and W. E. McCord for $4,250 cash. "On the question of residence the testimony is very conflicting.
"Defendant's wife stayed on the land a part of the time and defendant worked in his barber shop in the town of Iron River, and stayed there nearly all the time, working at
ments prior to the original entry would have been made clear. This conclusion is strengthened by the final declaration of the Commissioner:
"The sale and conveyance of the land is clearly proven, and it is also as clearly shown that the land was reconveyed to defendant so that he could submit his final supplemental proof for the benefit of McLeod and McCord; hence your opinion is affirmed."
This decision of the Commissioner of the General Land Office was sustained by the Secretary of the Interior in an opinion which contains no recital of facts, but simply says:
"Said decision fairly sets forth all the facts in this case, and the conclusion therein reached is sustained by the testimony, and is in conformity with law and the decisions of the Department, and is hereby affirmed."
In the final opinion of the supreme court of the state is this statement:
"We still think it plain, therefore, that no questions involving Jacobus' proceedings up to and including the final proof of September, 1892, were passed upon in the consideration of the contest had in 1894. Indeed, this seems to be the view of appellant's counsel as well, for he declares in his brief that 'no question of mala fides was found in the making of proofs [of September, 1892], nor was the subject considered. Simply from the evidence, which was the same as the affidavits, they determined the second question which they stated at the outset, that the sale of the land to McCord and McLeod was a bar to the offering of supplemental proof."" [117 Wis. 313, 94 N. W. 67.]
While no such admission is found in the brief filed in this court, possibly the omission may have been induced by the stress of the case.
We agree, therefore, with that court, that
there is nothing in the record to justify a conclusion that the Land Department ever changed its finding, made in allowing the original entry, of the sufficiency of Jacobus' occupation and improvements up to that time.
It is also worthy of notice in passing that the supreme court, in its opinion, held that the representations and instrument made and executed by Hill estopped him from questioning the validity of the original entry, so far, at least, as against the plaintiff, although they would not bar the United States from reclaiming the land.
We proceed, therefore, to a consideration of the other questions. At the time the commutation was allowed neither Jacobus nor the land officers had actual knowledge of the act of March 3, 1891. Such is the finding of the state court, and, being a question of fact, this finding is conclusive. Prior thereto a commutation made as this was would have been valid, and there is neither finding nor testimony that Jacobus or the land officers acted in bad faith in the matter. There was simply a proceeding, theretofore legal and proper, taken in actual ignorance of a restraining statute. The act of 1896 was obviously passed to reach such a case as this, in which a commutation was allowed within less than fourteen months from the date of the homestead entry, and to do away with the objection on account of the matter of time. Certain provisions were incorporated in order to prevent injustice to other parties. But, as between the government and the entryman, its purpose was to give validity to the commutation if it would have been valid had not the act of 1891 been passed.
stated in the deed, and by an affidavit stating that, at the time of his conveyance, in December, he reserved about 2 acres of land where his house and other improvements were located, and that when he heard of the act requiring fourteen months' residence before commutation he again took possession of the tract, and continued in occupation and cultivation. This was held insufficient to avoid the restraint of the statute, and upon this ground the commutation entry was set aside. The local land officers, in their opinion, say:.
"The bare statement of facts points to the conclusion that the sale of the land in December, 1892, was absolute, and that the subsequent reisdence of Jacobus upon the land was as the agent of the transferees, and for the purpose of acquiring title for them. This conclusion is strongly supported by the admission of Jacobus upon cross-examination.
"Jacobus, by the deed executed in December, 1892, devested himself of all right and title to the land. Granting, therefore, that the reconveyance of September 1st, 1893, was made in good faith by all parties, the slender residence of the wife, during the spring and summer of 1893, was not upon the homestead of Jacobus, but upon land in which he had no claim or interest, and the residence, such as it was, could not avail him in making supplemental proof. But we think all the circumstances-the time at which the conveyance from McCord and McLeod to Jacobus was made, the execution of the mortgage, and the evidence of Jacobus himself-show that the land was not reconveyed to Jacobus in good faith, but for the sole purpose of enabling him to make supple
We are of the opinion, therefore, that Jacobus' supplemental proof cannot be sustained, and that the entry should be canceled, and a preference right of entry awarded to the contestant, Hill.”
"The sale and conveyance of the land is clearly proven, and it is also clearly shown that the land was reconveyed to defendant, so that he could submit his final supplemental proof for the benefit of McLeod and McCord; hence, your opinion is affirmed, and defendant's homestead and his cash entry for the land involved is held for cancelation."
Upon what ground did the Land Departmental proof for the benefit of his grantees. ment set aside the commutation entry, and afterwards refuse to reinstate it? The original entry was July 6; the commutation September 20,-not three months thereafter. The act of 1891 allowed commutation only fourteen months or over after the entry. The While the Commissioner of the General commutation, therefore, was illegal. With-Land Office, in his opinion, concludes: in less than six months after the original entry, and four months after the commutation, Jacobus sold and conveyed the land, and his grantees became thereafter the parties solely interested. Pre-emption and homestead entries by statute must be made for the exclusive use and benefit of the parties making the entries (Rev. Stat. §§ 2262, 2290), and in each case an affidavit to that effect is required. Whatever Jacobus did after his conveyance in December, 1892, was not for his exclusive use and benefit. He attempted to get around the limitations and requirement of the statute by taking a reconveyance from his grantees, giving to them, at the same time, a mortgage to secure the consideration
While these opinions may have correctly declared the law as it stood when they were delivered, we may remark, in passing, that Jacobus seems to have acted in an honest effort to protect his grantees from the consequences of a mistake made by himself and the local land officers at the time of the commutation.
When the act of 1896 was passed the matter was still pending in the Department, and no entry had been made by Hill. The motions by Jacobus for a review and to confirm his entry were denied by the Secretary of the Interior, the ground of the decision being, as stated in a communication to the Commissioner of the General Land Office:
"The evidence in the cases at bar clearly shows that the entry was not made in good faith, and the proof submitted by the entryman was fraudulent, as fully set out in your office decision of January 23, 1895.
"It is likewise impossible to confirm the entry under the provisions of the act of June 3, 1896, for the same reason; namely, the practice of fraud in making proofs."
naval officers discharging their ordinary sea duties, by reason of the Navy personnel act of March 3, 1899 (30 Stat. at L. 1007, chap. 413, U. S. Comp. Stat. 1901, p. 1072) equalizing the pay of Army and Navy officers, since to hold otherwise would render meaningless the proviso of § 13 of that act, that naval officers when "detailed for shore duty beyond seas" shall receive the same pay as Army officers detailed for the same duties.
2. A naval officer is not entitled to sea pay while occupied in traveling on duty partly on a merchant steamer and partly on land, and in reporting to the Navy Department, since this is not sea service within the meaning of U. S. Rev. Stat. § 1571, U. S. Comp. Stat. 1901, p. 1079, declaring that "no service shall be regarded as sea service except such as shall be performed at sea, under the orders of a department, and in vessels employed by authority of law."
[Nos. 94, 95.]
The reference in this to the decision of the Commissioner makes it clear that the fraud and the want of good faith mentioned were in the commutation entry and the supple- Argued October 11, 1904. Decided December mental proofs. Evidently the Secretary ruled that the act of 1896 did not confirm a
previous premature commutation entry if the entryman was guilty of any fraud or wrong subsequent thereto in attempting to make good the title acquired thereby. We do not so understand the law. If, at the time of the commutation entry, there had been no fraud or lack of good faith, and the
APPEALS from the Court of Claims to review a decree, made on rehearing, allowing in part, and disallowing in part, claims for additional pay to a naval officer, under the Navy personnel act. Reversed and remanded, with directions to reinstate the original judgment.
See same case below, 38 Ct. Cl. 113. On motion for new trial, 38 Ct. Cl. 719.
only defect was in the matter of time, we do not think the confirmation authorized by the act of 1896 is destroyed by anything like Statement by Mr. Justice Brown: that shown to have been done by Jacobus in This was a petition for certain allowances his effort to protect the title he had con- claimed to be due petitioner as a captain in veyed to McCord and McLeod. In other the United States Navy, under act of March words, if the commutation entry was right-3, 1899 (30 Stat. at L. 1007, chap. 413, U. S. ful save for the fact that it was premature, the act of 1896 does away with that objection and confirms the entry; and the right to that confirmation is not destroyed by that which the entryman may have done in a subsequent effort to protect his title.
We see no error in the proceedings, and the judgment is affirmed.
Navy-equalization of Army and Navy pay -sea service.
1. The allowances of increased pay to Army officers serving in certain insular possessions of the United States and in Alaska, and to such officers serving beyond the limits of the United States, which are given respectively by the Army appropriation bills of May 26, 1900 (31 Stat. at L. 211, chap. 586), and March 2, 1901 (31 Stat. at L. 903, chap. 803, U. S. Comp. Stat. 1901, p. 896), do not inure to
Comp. Stat. 1901, p. 1072), equalizing the pay of Army and Navy officers, and known as the Navy personnel act. The findings of fact are too long to be here reproduced, but the several items claimed by petitioner, and from the disposition of which these appeals are taken, are cited by counsel in their brief and by the court of claims as follows:
1. From May 26, 1900, to March 1, 1901, he was paid sea pay of a captain, at $4,500 a year, and claims 10 per cent increase of this pay for services in the Philippines and in China, under the acts of May 26, 1900, and March 2, 1901. 31 Stat. at L. 211, chap. 586, and 31 Stat. at L. 903, chap. 803, U. S. Comp. Stat. 1901, p. 896.
2. From March 2, 1901, to June 11, 1901, he was paid the sea pay of a captain,-$4,500 a year, and claims 10 per cent increase of this pay for service outside the United States, under the provisions of the act of March 2, 1901.
3. From June 12, 1901, to September 30, 1901, he was paid sea pay at $4,500 a year, and claims 10 per cent increase under the act of March 2, 1901, for service outside the United States. During this time he was in the waters of the San Francisco bay, travel