
    THE COMMONWEALTH TITLE INSURANCE COMPANY v. THE UNITED STATES.
    [37 C. Cls. R., 532; 193 U. S. R., 651.]
    
      On the defendants' Appeal.
    
    An entryman pays the minimum price, continues to reside on the land, makes final proof, and receives the final receipt and certificate. Subsequently she borrows money and mortgages the property. The mortgagee assigns the mortgage to the claimant. After the final payment the Land Office cancels part of the entry because the land has been selected for a reservoir. The claimant forecloses the mortgage and buys in the property. The Secretary of the Interior allows its claim for the money paid into the Land Office, but the Comptroller of the Treasury overrules the Secretary and disallows the claim. The question in the ease is whether the claimant became an assignee of the entryman’s claim for reimbursement within the meaning of the statute.
    The court below decides:
    1. It is now settled that where there is no disputed question of fact and the decision of the Secretary of the Interior turns exclusively upon the proper construction of an act of Congress, his decision is not final; and if adverse to a claimant, this court has jurisdiction of the case.
    2. Where an entryman, after final payment, mortgages the land, he parts with all right, title, and interest save and except the equity of redemption; and when the mortgagee acquires title by foreclosure, it relates back to the date of the execution of the mortgage.
    3. The Act 16th June, 1880 (21 Stat. L., p. 287, sec. 2), recognizes the right of the entryman to assign his interest in the land before confirmation of his entry by the words “wherefrom any cause the entry 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 purchase money._
    4. The word “assigns” in the act means those to whom the entryman’s interest in the land was conveyed prior to the cancellation of the entry. After cancellation he has no interest in the land which he can assign, but only a claim for repayment, not assignable under Revised Statutes, section 3477.
    5. The entryman’s right to repayment is not divested by a sale under execution; but where he performs a voluntary act which includes his right to the repayment of the purchase money, he voluntarily parts with it.
    6. A cancellation of the entry subsequent to a mortgage does not deprive the mortgagee of his right to foreclose; and if on the foreclosure he becomes the purchaser, he must be regarded as an assign within the meaning of the statute.
   The decision of the court below is affirmed on the same grounds.

Mr. Justice McKenna

delivered the opinion of the Supreme Court, April 4, 1904.  