
    EDWARD G. STOIBER v. THE UNITED STATES.
    [No. 23180.
    Decided March 12, 1906.]
    
      On the Proofs.
    
    The claimant files an application for entry and purchase of coal land. He resides thereon, but before entry quitclaims the same to a coal company. Ten days later he enters the land and pays the price, the money being that of the coal company. The Commissioner of the General Land Office and the Secretary of the Interior decide that he was not entitled to enter the land for the reason that he had then assigned his right to the coal company; and that he is not entitled to recover back the money which he paid into (the local land office, because it was not his. The money still remains in the Treasury, the Commissioner of the General Land Office and the Secretary of the . Inter!or having decided that the coal company is not entitled to the money under the act 16th June, 1880.
    I. The Aet 16th June, 1880 (21 Stat. L., p. 287), provides that where an entry has been cancelled for conflict or has been erroneously allowed and can not be confirmed, the purchase money therefor is “ to he paid to the person, toho made such entry.”
    
    II. The statute contemplates repayment “ to the person who made the ■ entry,” but where the money paid to the defendants.’ officers at the time of making an entry was that of a coal company, to whom the person making the entry had previously quit-claimed the land, he can not maintain an action to recover it back under the aet 16th Juné, 1880, though the entry was subsequently set aside by the Secretary of the Interior, and the money is still in the Treasury.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. On the 24th day of January, 1882, Edward G. Stoiber duly executed a power of attorney constituting Theodore H. Thomas his attorney in fact to make 'application to the United States through the proper land office.for the entry and purchase of certain Government lands, the same being coal lands, and particularly referring to the SE. ¿ of the NW. £, the NW. £ of the SE. £, and the W. £ of the NE. £ of section 17, T. 13 S., R. 86 W., Colorado.
    II. On the 31st day of August, 1882, Edward G. Stoiber executed before G. W. Goebel, a notary public, his affidavit and declaratory statement required by section 2349, Revised Statutes, alleging actual and continued possession of the land in question from the 1st day of September, 1881.
    III. On the 14th day of August, 1883, Theodore IT. Thomas, as attorney in fact for Edward G. Stoiber, executed the affidavit required by section 32 of the regulations under the coal-land laws, approved July 30, 1882, to be made by each claimant at the time of actual purchase, and this affidavit was filed in the land office at Gunnison, Colo., by-the said Theodore TI. Thomas, attorney in fact, October 31, 1883.
    IV. In the meantime adverse claims have been filed by Elisha A. Buck and by G. T. W. Patrick for the SE. £ of the NW. £, the SW. £ of the NE. £, and the NW. £ of the NE. £ of said section 17, and a hearing in the case had been had and testimony submitted before the register and receiver at Gunnison, September 20, 1883. Following the said hearing and before the register and receiver had rendered an opinion in the case they, on December 24, 1883, permitted the said Stoiber, through his said attorney in fact, Theodore H. Thomas, to make said coal entry and issued coal certificate and receipt No. 13 .thereon and accepted from said Thomas the sum of $3,200 in payment for the land. The money so paid was furnished by the Colorado Anthracite Company, who, prior to said entry, had acquired a quitclaim deed therefor, as set forth in finding x. The power of attorney given to said Thomas January 24, 1882, was fourteen days after the claimant had sold and conveyed his interest in said land, as shown in said finding x.
    V. The said receiver’s receipt read as follows:
    “ Received from Edward G. Stoiber, of Gunnison County, Colorado, the sum of thirty-two hundred dollars and - cents, being in full-for the SE. £ of the NW. £, the NW. £ of the SE. £, and the W. £ of the NE. £ of section seventeen, in township 13 south, of range 86 west, 6th p. m., containing one hundred and sixty acres and - hundredths, at $20.00 per acre. $3,200.00.
    “ Fred J. Leohard, Receiver.
    
    
      “ $- testimony fee received. Number of words: - rate per 100 words-cents.”
    and that the register’s certificate read as follows:
    “ LaNd Oeeice at GuNNisoN, Colorado,
    “ December Ü4, 1883.
    
    “ No'. 13. It is hereby certified that, in pursuance of law, Edward G. Stoiber, residing at Gunnison, in Gunnison ' County, State of Colorado, on this day purchased of the register of this office the SE. { of the N’W. £, the NW. of the SE. J, and the W. | of the NE. ^ of section 17, township 13 S., range 86 W., of the 6th p. m., Colorado, containing 160 acres, at the rate of twenty dollars and - cents per acre, amounting to thirty-two hundred dollars and - cents, for which the said Edward G. Stoiber has made payment in full as required by law.
    “ Now, therefore, be it known that, on presentation of this certificate to the Commissioner of the General Land Office, the said Edward G. Stoiber shall be entitled to receive a patent for the lot above described.
    “JohN J. Thomas, Register?’’
    
    VI. The opinion of the register and receiver rendered on December 28, 1883, was as follows:
    2 In the United States Land Office, Gunnison, Colorado.
    COAL CONTEST.
    
      Edward C. Stoiber v. E. A. Buck, Charles H. Involving the SE. 1 of the NW. 1, NW. 1 of SE. 1, and W. 1 of NE. 1 of section 17, tp. 13 S., range 86 W., 6th p. m.
    
    
      Opinion of the register and receiver.
    
    “ In the above case a hearing was ordered to take place September 20, 1883, before the register and receiver at the U. S. land office, Gunnison, Colorado. On the day set, Edward G. Stoiber appeared by his counsel, Thomas and Thomas.
    “ G. T. W. Patrick appeared by his counsel, Heims and Brown.
    “ E. A. Buck appeared by his counsel, Mills and Boisot.
    “ Charles H. Castle appeared not, but makes default.
    “ From the records of the U. S. Land Office, Leadville, Colorado (now Gunnison, Colorado), it appears that Edward G. Stoiber filed coal D. S. No. 200, October 31,1882, alleging settlement September 1,1881, for the SE. J of the NW. J, the NW. i of the SE. and the W. \ of the NE. \ of section 17, tp. 13 S., range 86 W., 6th p. m.
    “ G. T. W. Patrick filed coal D. S. No. 128, August 10, 1882, alleging settlement June 12, 1881, for the E. -J of the NW. Í, the SW. i of the NE. ¿, and the NW. J of the SE. \ of section 17, tp. 13 S., range 86 W., 6th p. m.
    “ E. A. Buck filed coal D. S. No. 209, December 16, 1882, alleging settlement April 12, 1882, for the E. of the NW. J, the SW. -j: of the NE and the NW. ^ of the SE. I of section 17, tp. 13 S., range 86 W., 6th p. m.
    “ It appears that Patrick filed his D. S. during the time the land in question was withdrawn from the market; that is to say, between the 7th day of October, A. D. 1880, and the 28th day of October, A. D. 1882. The evidence further shows that the said Patrick has not continually occupied and improved the land in controversy, but abandoned it for a period of six or eight months at a time.
    “It also appears that Edward G. Stoiber and.E. A. Buck have since the filing of their respective declaratory statements occupied and improved the land in question continuously, but as the filing of Stoiber ivas made prior to that of Buck, and as he has shown a compliance with the law, we have therefore allowed Edward G. Stoiber to enter, under the coal-land laws, the SE. $ of the NW. -J, the NW. \ of the SE. -J, and the W. -¡-..of the NE. \ of section 17, tp. 13 S., range 86 W., 6th p. m., without prejudice to any interest of Patrick’s or Buck’s.
    “ Joi-iN- J. Ti-iojmas, Register.
    
    “ Fred J. LeoNard, Receiver.
    
    
      “ U. S. Land Office, Gunnison, Colorado, December 29th, 1883.”
    VII. Elisha A. Buck and G. T. W. Patrick appealed from the decision of the’ register and receiver at Gunnison, rendered December 28, 1883, which was in favor of Stoiber, and upon the 1st day of February, 1887, the Commissioner of the General Land Office rendered an opfinion upon the same evidence which was before the register and receiver in which the Commissioner reversed the action of the local officers in allowing the entry to be made and held that Stoiber was not entitled to enter the land for the reason that, substantially, it appeared from the evidence submitted in behalf of Stoiber that he had practically assigned the right to make an entry to the Colorado Anthracite Company, and upon an appeal by tbe said Edward G. Stoiber from tbe said decision of tbe Commissioner of tbe General Land Office, the Secretary of tbe Interior, upon the 31st day of July, 1888, affirmed tbe decision of the Commissioner of the General Land Office.
    VIII. The hearing bad on September 28, 1883, before the local officers, the issue was as to the right of Stoiber to make the entry. Buck had filed a protest against the right of Stoiber in the following terms: ■
    “ That' said Stoiber is not either personally or by agent in actual possession of the said land; that Stoiber has bargained, sold, and agreed to transfer all his right, title, and interest in the said land to the Colorado Anthracite Company or to some person in its behalf and for its benefit.”
    The fact that Stoiber had bargained and sold and had already deeded his title or interest in the land was admitted by the witnesses for Stoiber at this hearing in the testimony given by L. Kingsbury, Thomas J. Sterr, Samuel W. Harper, and by Theodore H. Thomas, the attorney in fact for Stoiber, and none of the witnesses for the said Stoiber denied or concealed the fact that he had already deeded the land, and that the entry was being made in the interests of the Colorado Anthracite Company.
    IX. In accordance with the decision of the Secretary of the Interior the said entry was canceled by the Commissioner of the General Land Office by letter dated August 10, 1888.
    X. The abstract of title shows that Edward G. Stoiber, per O. G. Schultz, his attorney in fact, by quitclaim deed dated January 10,1882, conveyed the SE. J of the NW. J, the NW. of the SE. and the W. •£ of the NE. \ of section 17. Tp. 13 S., range 86 W., 6th p. m., to Henry E. Rood, and that Henry E. Rood conveyed the said land to William S. Devine by deed dated February 15,1882, and that William.S. Devine conveyed to the Colorado Anthracite Company the same land by deed dated February 15, 1882, and that there were no other deeds affecting the title of the said Edward G. Stoiber to the said land between February 15, 1882, and August 10, 1888.
    
      XI. On June 13, 1900, the Colorado Anthracite Company-filed an application with the Commissioner of the General Land Office for the return of the purchase money paid upon coal entry No. 13, Gunnison, Colo., claiming to be the assignee of Edward G. Stoiber, and on the 16th day of January, 1901, the Commissioner of the General Land Office rejected the application of the Colorado Anthracite Company on the ground that it was not the assignee of the said Stoiber for the reason that the said Stoiber had not deeded the land to the said company at any time subsequent to the allowance of the said entry'and prior to the cancellation thereof, and the said decision was affirmed by the Secretary of the Interior on May 8, 1901.
    XII. Thereupon Edward G. Stoiber applied for the return of the said purchase money, and the said application was rejected by the Commissioner of the General Land Office under date of November 1, 1901, and' the said decision of the Commissioner of the General Land Office was affirmed by the Secretary of the Interior on January 14, 1902, and the said decision was reaffirmed by the Secretary of the Interior on April 3, 1902, on a motion for review.
    XIII. The said Edward G. Stoiber and the Colorado Anthracite Company have executed a relinquishment of the said land in accordance with the forms prescribed by the Commissioner of the General Land Office under the act of June 16, 1880, and that the duplicate receipt issued at the time the said entry was made has been surrendered, and that the said sum of $3,200 paid to the United States when the said entry wa,s made has never been repaid to any person and is still in the Treasury of the United States.
    Mr. Samuel Herrick for the claimant.
    
      Messrs. Harvey Scalding & Sons were on the brief.
    
      Mr. Edwin G. Brandenburg (with whom was Mr. Assistant Attorney-General Van Orsdel) for the defendants.
   PeR Curiam :

There was no error in the rejection of the claim by the Secretary of the Interior, for, while under section 2 of the act of June 16, 1880 (21 Stat. L., 287), where an entry has been canceled for conflict or lias been erroneonsly allowed and can not be confirmed, the purchase money therefor is “ to be repaid to the person who made such entry, or to his heirs or assigns,” such repayment presupposes payment, of the purchase money by the person who made the entry. In the present case, notwithstanding the. receipt for - the money- was taken in the name of the claimant, the money was in fact furnished and paid by the Colorado Anthracite Company, claiming to be the assignee of the claimant herein.

The act contemplates repayment “ to the person who made the entry; ” or, in case of his death, to his heirs; or, in case of sale, to his assignees. To entitle the claimant to recover he must bring himself within the statute.

True, the Government received the money for the lands, and the samé is now in the Treasury, where, in the absence of fraud, it is held as a trust fund for the benefit of the rightful owner.

As the claimant was not allowed to enter the lands and paid no money therefor, he is not entitled to recover, and his petition is therefore dismissed.  