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MCCLUNG V. PENNY, 189 U. S. 143 (1903)

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U.S. Supreme Court

McClung v. Penny, 189 U.S. 143 (1903)

McClung v. Penny

No. 384

Argued March 6, 1903

Decided April 6, 1903

189 U.S. 143


It must appear that this Court has jurisdiction of the case before it can inquire whether the territorial court has committed any error in its decision or in permitting the action to be maintained, and such jurisdiction does not exist if the value of that which is in controversy does not exceed $5,000. chanroblesvirtualawlibrary

Page 189 U. S. 144

Where it appears that the matter in dispute is only the possession of certain public land for which a contested entry has been made, and it is clear from the facts that such possession is worth much leas than $5,000, the judgment of the territorial court will not be reviewed.

The relinquishment of rights under a homestead or preemption entry opens the land to entry by another, and a second entryman may, if there has been no contest, perfect a title, but if the records show that there has been a contest and the successful contestant relinquishes, a party subsequently entering the land is charged with notice of the equitable rights of the unsuccessful contestant which can be enforced whenever the title passes from the government.

This was an action of forcible entry and detainer commenced by Penny, the defendant in error, in the Probate Court of Kay County, Oklahoma Territory, a court adjudged by the supreme court of the territory to have jurisdiction in such actions by virtue of § 4805, art. 13, c. 67, and sec. 1562, art. 15, c. 18, Rev.Stat. 1893. A judgment for the plaintiff was affirmed by the supreme court of the territory, 11 Okla. 474, and thereupon the case was brought here on a writ of error. The testimony on the trial developed these facts: the parties contested in the Land Department the right to enter the tract in controversy as a homestead. The plaintiff's contention was sustained, and he was permitted to make entry. Having received the homestead certificate, he commenced this action.

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