APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF OKLAHOMA.
MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
The plaintiff alleges in her petition that the land is worth $100,000. It appears that she has never been in Oklahoma; that neither she nor her husband ever entered upon or cultivated the land, and yet she asks the court to give her this valuable property, taking it away from those who, at least by their presence and occupation of the tract, have assisted in building up a State having more than a million inhabitants.
Another matter is worthy of notice. According to a report of the register of the local land office to the General Land Office at Washington, on May 12, 1897, the attorney for the plaintiff was notified of the decision in her favor by the Commissioner of the General Land Office, and on June 16 of that year that attorney filed the waiver of the preference rights thus awarded to her. The patent to Murphy was issued on January 19, 1898, and recorded in the office of the register of deeds in Oklahoma County on January 25, 1898. This suit was commenced on September 16, 1901. It, therefore, appears that the plaintiff took no action until more than four years after the waiver by her attorney of her preference rights and three and a half years after the issue of the patent and its record in the county in which the land is situate. It is true that she claims to have been ignorant of the decision in her favor, and that she relied upon her attorney, whom she charges was engaged in a conspiracy to defraud her. Although this reliance, so far as it was reasonable and in fact controlled her, may, to some extent, at least, have excused her inaction, yet it must also be remembered that not improbably her inaction may have influenced some of the defendants to deal with the land in reliance upon the title passing by the patent to Murphy.
The decree in the District Court finds that the plaintiff "has failed to sustain the material allegations of her petition," and holds that neither she nor any of the heirs of Levi Holt "have any right, equity or interest in and to said tract of land above
described or any part thereof," and quiets the title of defendants against all their claims, while the Supreme Court, in its opinion, says that the District Court was warranted in finding that the "allegations of fraud in the petition were not sustained by the evidence."
The Supreme Court, however, rested its decision largely upon this rule of law: That whenever an entry has been made of a tract of land that tract is segregated from the mass of public land subject to entry until the existing entry is disposed of.
Counsel for appellant do not question the general rule as to the effect of an entry regular upon its face, and concede that it is no longer open to doubt, in view of the many rulings of the Land Department and the decisions of this court, Hodges v. Colcord, 193 U.S. 192; McMichael v. Murphy, 197 U.S. 304, the latter, involving the land in controversy, but they seek to distinguish this case in that the local land officers had held all the claimants disqualified, and that on appeal the Commissioner of the General Land Office, on March 7, 1890, had affirmed their ruling, dismissed the contests of Blanchard and Cook, and held the entry of White for cancellation; that the application of Holt to enter was made on March 11, 1890, before any appeal had been, in fact, taken from the decision of the Commissioner to the Secretary of the Interior. In other words, at the time that Holt applied to make his entry there was no pending entry. It could not have been foretold whether White would appeal from the decision of the Commissioner of the General Land Office, and if he did not, there would be no entry to conflict with Holt's application. They contend that the application of Holt should have been recognized as an application to enter the land, to take effect if White should not appeal from the decision of the Commissioner, or if, on appeal, that decision should be sustained. In that way Holt would have been given priority over all subsequent entries. Counsel further say that such was then the ruling of the Department, citing especially McMichael
v. Murphy, 20 L.D. 147, and that although that decision has been overruled, yet that it was the law of the Land Department, as then established by its practice, and should be recognized as controlling the rights of the parties. The case in which, as they concede, the doctrine of McMichael v. Murphy was overruled is Cowles v. Huff, 24 L.D. 81, decided in January, 1897, a year before the issue of the patent in this case.
The difference in the ruling is disclosed by the two cases of Henry Gauger, 10 L.D. 221, and Allen v. Price, 15 L.D. 424. In the former it was held:
"An application to enter may be received during the time allowed for appeal from a judgment of cancellation, subject to such appeal, but should not be made of record until the rights ...