US SUPREME COURT DECISIONS

The action of local land officers on charges of fraud in the final proof of a preemption claim does not conclude the. government, as the General Land Office has jurisdiction to supervise such action or correct any wrongs done in the entry. Orchard. v. Alexander, 157 U. S. 372, affirmed and followed to this point.

The jurisdiction of the General Land Office in this respect is not arbitrary or unlimited, or to be exercised without notice to the parties interested, nor is it one beyond judicial review under the same conditions as other orders and rulings of the Land Department.

The seventh section of the Act of March 3, 1891, c. 561, 26 Stat. 1098, providing that

"all entries made under the preemption, homestead, desert land, or timber culture laws, in which final proof and payment may have been made and certificates issued and to which there are no adverse claims originating prior to final entry and which have been sold or encumbered prior to the first day of March, eighteen hundred and eighty-eight, and after final entry, to bona fide purchasers, or encumbrancers, for a valuable consideration, shall, unless upon an investigation by a government agent, fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfactory proof to the Land Department of such sale or encumbrance,"

refers only to existing entries, and does not reach a case like the present, where the action of the Land Department in cancelling the entry and restoring the land to the public domain took place before the passage of the act.

On July 25, 1892, the United States issued a patent for the land in controversy to Gustav Venzke, one of the defendants in error. The other defendants in error are his mortgagees. On January 11, 1883, one Willis B. Simpkins made a preemption entry of the land and received a receiver's final receipt, the land at that time being public, and subject to preemption entry under the laws of the United States. On February 8, 1883, he conveyed the land to Charles J. Wolfe, through whom, by foreclosure of a mortgage, plaintiff in error acquired her title. chanrobles.com-red

Page 164 U. S. 90

On September 26, 1884, W. W. McIlvain, a special agent of the Land Department of the United States, reported to the Commissioner of the General Land Office at Washington, as the result of his investigations, that the preemption entry of Simpkins had been fraudulently and unlawfully made. Proceedings for an investigation of this charge were ordered before the local land officers. Notice was duly given by publication. Simpkins made no appearance, but the plaintiff in error appeared by attorneys. The investigation was carried on in the local land office, and thereafter in the geberak land office at Washington, and the proceedings reviewed by the Secretary of the Interior, the plaintiff in error being a party to all those proceedings. They resulted in a cancellation of the entry on the ground that it had been fraudulently and unlawfully made, and the land was restored to the public domain.

Thereafter Venzke took those proceedings which culminated in the patent, whereupon the plaintiff in error commenced this suit in the District Court of Richland County, North Dakota, to have him charged as trustee of the legal title for her benefit. In that court, a decree was entered in favor of the defendants, which, having been affirmed by the supreme court of the state, has been brought here on writ of error.

On March 3, 1891, Congress passed an act, c. 561, 26 Stat. 1098, § 7 of which contains this provision:

"And all entries made under the preemption, homestead, desert land, or timber culture laws in which final proof and payment may have been made and certificates issued and to which there are no adverse claims originating prior to final entry and which have been sold or encumbered prior to the first day of March, eighteen hundred and eighty-eight and after final entry to bona fide purchasers or encumbrancers for a valuable consideration shall, unless upon investigation by a government agent fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfactory proof to the Land Department of such sale or encumbrance. "

Page 164 U. S. 91