
    THE ANTHRACITE MESA COAL-MINING COMPANY v. THE UNITED STATES.
    [No. 21472.
    Decided January 5, 1903.]
    
      On the defendants’ Motion.
    
    Hallowell conveys a designated portion of the then public land to Bowman by deed dated August 29,1881; and Bowman conveys the land, by deed dated September 5, 1881, to Smith. Two years afterwards an entry is made by Smith, as agent of Hallowell, the necessary affidavit being made by him as agent. Subsequently Smith conveys the land to the claimants. Later it is decided by the Land Office that the affidavit should have been made by the entrvman, and that he must now make it. He not being found, the entry is canceled. The claimants apply for repayment of the amount paid on the entry. The application is refused by the Commissioner on the ground that the entry was fraudulent, but by the Secretary for the reason that the error could have been corrected by the production of the proper affidavit.
    
      I. Where the error at the time of the entry is that of the officers of the Land Office in receiving an unauthorized affidavit and in taking the entryman’s money, and the entry is subsequently canceled, his assignee may maintain an action to recover back the money received by the Land Office.
    II. The fact that a defective entry could he corrected by the production of the proper affidavit of the entryman should not defeat the assignee’s right to recover if the entryman can not be found to make the affidavit.
    III. The right of assignment after entry has been recognized always. Kestriction on the power of alienation would injure the preemptor and serve no good purpose.
    IY. A prior sale by the entryman may raise the suspicion that the entry was not made for his use and benefit, but is not sufficient of itself to establish fraud.
    Y. Where a person conveys a portion of the public land before he has made an entry and while he has no title, interest, or equity in the same, by deed without warranty, the grantee takes nothing; and if the grantor subsequently makes an entry of the land which is ultimately canceled for an error of the land officers, the grantee has no right or interest in the money paid on the entry which the Land Office can recognize or which can be the subject of recovery in a suit at law.
    
      The Reporters1 statement of the case:
    Judgment was entered for the claimant May 14, 1900, for $800, no opinion being filed. November 18,1892, defendants’ motion for a new trial was argued. The court overruled this motion, but filed the following amended findings of fact:
    1. That heretofore, to wit, on' the 18th day of February, 1883, one J. W. Hallowell, of Gunnison, Colo., made cash coal entry No. 31, Ute series, for the NE. £ of the NE. £ sec. 20, T. 13 S., R. 86 W., which said entry was subsequently canceled on April 15,1891, because of said entryman’s failure to furnish the proper affidavit required bjr section 2 of the coal land regulations. The amount paid for said land by said entryman was the sum of $800. Subsequent to the aforesaid entry it was found that the affidavit under section 2 of the coal land regulations, showing that the entryman is “ now in actual possession of said mines, and makes the entry for my use and benefit, and not directly or indirectly for the use or benefit of any other party,” was not made by the entryman, but by Howard P. Smith, attorney in fact. On July 25 and December 4, 1890, the entryman was called upon to furnish this affidavit nunc fro tunc, or the entry would be canceled. Diligent efforts were made to serve the entryman with this notice, but he could not be found. The entry was accordingly canceled.
    J. W. Hallowell, the said entryman, by deed dated August 29,1881, duly recorded, conveyed the said NE. J of the NE. i of sec. 20. and NW. i of NW. i sec. 21, T. 13 S., B. 86 Wr., to J. H. Bowman.
    J. H. Bowman, by deed dated September 5, 1881, duly recorded, conveyed the aforesaid land to Howard E. Smith; and Howard F. Smith, by deed dated February 15, 1884, duly recorded, conveyed said lands to the plaintiff company.
    The land included in this entry was conveyed successively by J. W. Hallowell, J. H. Bowman, and Howard F. Smith to the Anthracite Mesa Coal Mining Company.
    Upon this condition of facts the said entry was canceled.
    II. On July 30, 1892, Jerry S. Olney filed coal D. S. No. 412 for said land at the Gunnison Coal Land Office, alleging that he was in possession thereof, and that he had placed certain improvements thereon preparatory to coal mining.
    On April 24, 1893, the said Jerry S. Olnej'' made application and affidavit to enter and purchase said land under the laws of the United States relating to coal lands, in which he alleged “that no portion of said tract is in the possession of any other party; that he is a naturalized citizen of the United States, over 21 years of age, and that he has never held or purchased lands under said act either as an individual or as a member of an association.”
    On April 25, 1893, the said Jerry S. Olney made coal entry No. 29, Ute series, for said land, and paid therefor to the United States the sum of $800.
    On November 2, 1893, coal cash patent No. 1185 was issued to the said Jerry S. Olney, covering said land under said entry.
    III. The Anthracite Mesa Coal Mining Company made application for repayment of the amount paid for the first entry of the land under the provisions of the act of June 6, 1880. This application for repajunent was made within 'a short time after the cancellation of the entry, but was denied on January 25, 1898, because the Commissioner observed from certain papers filed in tbe record of the cancelled entry that the party in whose name the entry was made had sold the land over two years prior to the date of the entry, from which circumstance the said Commissioner concluded that the entry had been procured upon false testimony, and for that reason held that the application for repayment could not be allowed. Upon appeal from the action of the Commissioner denying the repayment the Secretary of the Interior held, independently of any question as to the falsity of the testimony upon which the entry was based, the case was not one which came within the terms of the repayment statute because it did not appear that the error in the allowance of the entry, if there was one, was such as would necessarily prevent the subsequent confirmation of the same, inasmuch as upon furnishing the new affidavit required by the coal-land regulations, the alleged defect would have been cured and the entry allowed to stand and might have been confirmed. The reasons for the action of the Commissioner of the General Land Office and the Secretary of the Interior are set forth in 28 Land Decisions, 551.
    
      Mr. Harvey SpaMing for the claimant.
    
      Mr. George II. Gorman (with whom was Mr. Assistant Attorney-General JPradt) for the defendants:
    1. This claim is barred from consideration of this court under the provisions of section 1069 of the Revised Statutes. Whatever cause of action the claimant in this case has against the United States certainly accrued to it not later than April 15, 1891, when this entry was canceled. Whatever cause of action he had against the United States in this court was cog'-nizable by this court at that time and it became necessary for said entryman to pursue his remedy in this court within six years from that date. ■ This he did not do and did not file his petition in this court until September 13,1899. The fact that he made application to the Secretary of the Interior for repayment under the act of June 16, 1880, does not prevent the running of the Statute in this court. (See case of Hugh Carlisle, 29 C. C., 114, and cases there cited.)
    2. There can be no standing in court for a recovery of this money under the provisions of the act of June 16, 1880, for the reason that this was not an entry which had been erroneously allqwed, and could not be confirmed within the meaning of that expression as used in said act, but, on the contrary, it was an entry which was allowed because the entryman had upon the face of things made the necessary affidavit and made out a proper case for entiy. It was canceled because it was subsequently discovered that such affidavit was false and fraudulent and the entryman could not and would not cure such defect. Either the case ivas a fraud from beginning to end, which .appears to be the fact undoubtedly by the showing made in the return of the Interior Department, or else it is a case where the entryman either could not or would not make the necessary affidavit to cure this seeming defect. If the defect had been cured and if the entryman could have furnished the necessary proof to show that this was not a false and fraudulent entry, then the entry could have been and would have been confirmed to the entryman and in either event the case wholly fails to fall within the provisions of the act of June 16, 1880, and no repayment can be demanded under the provisions of that act. (See 15, L. D., 146, and 20 L. D., 379; also the opinion of the Commissioner of the General Land Office and of the Secretary of the Interior, copies of which are inclosed in the reply of the Interior Department in this case.)
    It is also suggested that this claim is forfeited to the United States and forever barred from prosecution in this or any other court bjr reason of this attempted fraud against the United States and in violation of section 1086 of the Revised Statutes.
    It is, therefore, submitted that the petition should be dismissed.
   Howry, J.,

delivered the opinion of the court:

The entry was declared to be erroneously allowed. Subsequently it was found that the affidavit required by the regulations was not made by the entryman but by his attorney in fact. That is the first finding predicated upon the report of the land office. But this finding only means that when the land office came to issue the patent it was discovered that the entry was the result of the action of the officers of the Government in taking the affidavit of the principal’s agent instead of the affidavit of the principal himself. The irregular methods adopted at the outset were within the knowledge of the proper officers when the entry was made as fully as when years afterwards the entryman was called upon to send in his own affidavit. Notice to make the affidavit in person not being served, the entry was accordingly canceled.

It was thus adjudged to have been an erroneous entry. The entryman or his assigns then became entitled to repayment (unless the entiy could be confirmed) under the provisions of the second section of the act of June 16, 1880 (21 Stat. L., 287), which provides as follows:

“In all cases where homestead or timber-culture or desert-land entries or other entries of public lands have heretofore or shall hereafter be canceled for conflict, or where, from any cause, the entiy has been erroneously allowed and can not be confirmed, the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money, and excesses paid upon the same, upon the surrender of the duplicate receipt and the execution of a proper relinquishment of all claims to said land, whenever such entry shall have been duly canceled by the Commissioner of the General Land Office.” 1

But the entiy was not confirmed, and on the application for repayment bj1- the entiyman’s assignee the Commissioner of the General Land Office, on January 25, 1898, refused repayment, with knowledge that it could not be confirmed because the entryman ivas without notice of the requirements respecting his personal affidavit.

Meantime the entryman had sold the premises without notice of aiy irregularity. With notice, and failure on his part to comply with the requirements of the statute, it might well bo said that he was in default and bound to submit to forfeiture of the amount paid for the entiy. In such case his assignee would be equally bound. But the entryman having disposed of his interest and being inaccessible, and for that reason without notice, did his assignee forfeit the right to reclamation?

From an early period the right of assignment has been recognized. (Kerr v. Utah Wyoming Improvement Co., 2 L. D., 727.) There is no prohibition in the statute providing for coal entries against the transfer of the preference right of entry as in certain preemption and homestead laws. (McConnell's case, 18 L. D., 414.) The right was valuable and, independent of the legislation of Congress, assignable. (Thredgill v. Pintard, 12 How., 24.) The Supreme Court has said that when a preemptor has gone with clean hands to the land office and proved up his right and paid the Government for his land the object of Congress is attained. Restrictions upon the power of alienation after this would injure the preemptor and serve no good purpose of public policy. (Myers v. Croft, 13 Wall., 291, 297.) Without notice to the original party in interest, or to the assignee in possession, repayment could not properly be refused to a statutory assignee merely in default of an affidavit of an enti’yman subsequent to the one originally accepted as good and sufficient to cause the entry to be made. A rule refusing repayment for that reason alone would sanction the official wrong involved in accepting the agent’s affidavit and collecting the price of the land after issuing the necessary certifícate, thereby enabling the Government to retain the consideration, to the prejudice of an innocent assignee for value, without notice of the irregularity until too late to enable an assignee to take steps to protect himself.

Repayment was not refused by the Commissioner of the General Land Office because the entry was held to be erroneous and susceptible of confirmation, but for something aside from and independent of his official action, resulting in the judgment vacating the entry as erroneous only. The Commissioner thought that inasmuch as certain papers, filed in the record of the canceled entry, showing that the party in whose name the entry was made had sold the land over two years prior to the date of the entry, false testimony had been the means used in entering the land, and for that reason he refused repayment. Thus the entry was canceled for one reason and repayment refused for another by the land office.

The Secretary of the Interior did not seem to attach any special importance to the reasons assigned by the Commissioner for his second action, but affirmed the decision ref using-repayment independently of any question as to the falsity of the testimony upon which the entry was based, holding that the error in the allowance of the entry was not such as would necessarily prevent its confirmation. He said:

“Conceding, therefore, for the sake of the argument that the entry was erroneously allowed, for the reason alleged, yet that error would not necessarily have defeated its confirmation, for, upon furnishing the new affidavit as required, which was a matter solely within the power of the entryman, and to procure which an effort was made by the land office, the alleged defect would have been cured and, in so far as that matter is concerned, the entry would have been allowed to stand and might have been confirmed.” (28 L. D., 551.)

We have already shown that as against the assignee payment could not rightfully be refused merely because of the-defective entry upon failure to reach the entryman by service of the proper notice to make good the defect.

There is no fraud alleged against the plaintiff in respect to the entry or in its subsequent purchase of the land, but a false statement is attributed to the entryman’s agent entirely because of the conveyance by the person for whom the entry was made in advance of the affidavit. This alone is not sufficient to establish fraud in the entry. There should be something more than mere suspicion. Fraud can not be presumed on this circumstance alone, but must be established by proof of some kind. It is not incompatible with good faith and actual possession of the land at the time of the entry that the entryman had made a premature conveyance. There is no such agreement shown as establishes fraud, and the language quoted by the Supreme Court from the Maxwell Land Grant case (121 U. S., 325-381), where a patent had issued, seems applicable:

“When, in a court of equity, it is proposed to set aside, annul, or correct a written instrument for fraud or mistake in the execution of the instrument itself, testimony on which this is done must be clear, unequivocal, and convincing, and not a bare preponderance of evidence; and this rule, well established in private litigations, has additional force when the object of the suit is to annul a patent issued by the United States.” (United States v. Budd, 144 U. S., 154.)

In this class of cases the presumption must be in favor of the entryman until overthrown by evidence sufficiently preponderating to generate belief that fraud has been practiced. As the evidence 'does not make out a case of fraud, and as all the other conditions of the statute respecting repayment have apparently been complied with and the claim is equitable, the judgment heretofore rendered in favor of the plaintiff must be permitted to stand.

Amended findings of fact in correction of certain immaterial and irrelevant matter appearing in the original findings are herewith ordered to be filed by way of substitution for the facts heretofore found.

The motion for new trial is overruled.  