#### GEORGE J. MILLER v. THE UNITED STATES.

(No. 22664.

Decided February 4, 1907.)

*On the Proofs.*

The claimant makes a homestead entry and files final proof in 18S4. In 1897 he files a preemption declaratory statement for the same land, alleging a settlement thereon in 1880. In 1899 he applies to the Register to transmute this into a homestead entry under the act 2d March, 1889. The Register refuses to receive the application and informs him that he can obtain title only under the preemption law. Thereupon the claimant makes preemption and pays $400, being at the rate of $2.50 per acre. In 1900 he applies to the Commissioner of the Land Office to have the last, or preemption entry, canceled and the money, $400, refunded, and to be permitted to make a homestead entry. The Commissioner orders that he be allowed to transmute his preemption filing to a homestead entry. The claimant accordingly makes a homestead entry. Subsequently the. Commissioner refuses to refund the $400 paid on the preemption entry.

I. Where money is voluntarily paid to a receiver of the Land Office after a party’s attention has been called to a legal risk attending such act, the payment must be regarded as made in mistake of law and not in mistake of fact, and an action will not lie to recover it back.

*122II. It is established that one who pays money to a Government officer for public lands in excess of the price established by law can not recover back the excess in an action against the United States, the principle being that courts are not established to unsettle the transactions of men.

*The Reporters'*statement of the case:

The facts of the case are sufficiently set forth in the opinion of the court.

*Mr. Frank B. Grosthwaite*and *Mr. E. F. Oolladay*for the claimant.

*Mr. MalcomA. Goles*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

Atkinson, J.,

delivered the opinion of the court:

This is a suit for the recovery of purchase money paid to the United States by the claimant, George J. Miller, on an entry of public lands, which entry was subsequently canceled by the Commissioner of the General Land Office at the request of the entryman and claimant. Claimant, in 1897, made a preemption cash entry for certain lands, and subsequently requested the Commissioner of the General Land Office to cancel the same and permit him to make, in lieu thereof, a homestead entry, which was refused for the reason that the claimant had theretofore made homestead entry and had filed final proof therefor in 1884. The claimant then made application to the Commissioner for repayment to him, under the provisions of section 2 of the act of June 16, 1880 (21 U. S. Statutes, 287, and Supplement to Revised Statutes, 300), which application was denied by the Commissioner for the reason that repayment in such cases was not authorized or allowed by law.

Respecting the refund of purchase money (under the statutes above cited) by the Secretary of the Interior to the entryman where the entry was canceled for conflict, or where from any cause such entry was erroneously allowed and could not be confirmed, or where double minimum price had been pai dfor lands which were afterwards found to be not within the limits of a railroad land grant, the excess *123of $1.25 per acre is authorized to be paid to the purchaser or to his heirs or assigns.

Counsel for claimant states that this suit was brought upon the theory that the money paid to the United States could be recovered by claimant, either as money had and received by the United States from and for the use of the claimant, or upon the ground that when the original contract of purchase was annulled by mutual agreement between the claimant and the United States and a new contract or purchase at a much smaller figure was substituted therefor an implied condition arose and was written into the new contract, which implied condition bound the United States to repay to the claimant the $400 in question.

We do not regard this contention as permissible, because the record shows that the money was voluntarily paid to the agent of the Government by the claimant after his attention had been called by the receiver of the land office at Water-ville, Wash., to the risk on claimant’s part attending such act. If therefore a mistake were made by either party to the transaction, it was a mistake of law which, under its jurisdiction, this court can not correct, because it is not denied .that the transaction between the officials of the land office and the claimant was at the time acceptable to both and without any complaint on the part of claimant.

The single question involved in this case was definitely determined by the Supreme Court in *Edmonston’s case*(181 U S. R., 500), wherein the court laid down the principle that one who pays money to Government officials in charge of public lands in excess of that required by law can not recover such excess in an action against the United States in this court. While the rule there laid down may in some instances appear harsh and inequitable (which may be true of the case at bar), yet it is not purely technical; on the contrary, it is based upon the principle that where a business transaction is voluntarily closed between two or more persons, where neither fraud nor mistake appears, it should remain closed. As was said by an eminent jurist, “ courts are not established to unsettle the transactions of men.”

The petition is dismissed.