#### MICHAEL QUINN v. THE UNITED STATES.

[No. 31932.

Decided October 29, 1917.]

*On the Proofs.*

*Coal land entry; repayment; statute of limitations.*— Plaintiff's suit is for the recovery of the purchase price paid ou certain coal land, the entry for which was subsequently canceled by the Interior Department. Any right of recovery plaintiff had when the first application for repayment was made was under section 2302, Revised Statutes, and the act of June 16, 1880, 21 Stat., 287. Said application having been denied in 1900, the statute of limitations of six years, which is jurisdictional in this court and does not have to be pleaded, precludes recovery therefor in an action brought in this court in 1912.

*Fraud, recovery precluded by.*— Under the act of March 26, 1908, 35 Stat., 48, it is necessary, in order to obtain repayment of moneys paid on land entries, that the entryman shall not have been guilty of attempted fraud in connection with the application, entry, or proof, and the facts found by the Commissioner of the General Land Office upon which that officer concluded that the plaintiff’s application was tainted with fraud are binding upon this couit, at least because the record discloses none other.

*The Reporter's*statement of the case:

The fact? of the case are fully set forth in the opinion of the court

*497
      *Mr. William 0. Prentiss*for the plaintiff. *Clark, Prentiss {& Clarke*were on the briefs.

Aside from any question of land-office practice as to whether or not the local officers erroneously received Quinn’s money in the face of the Baldwin Star Coal Company’s protest, the legal aspect of the case is that there was no actual sale of the land, inasmuch as the Land Department finally held that, under the doctrine of *Atherton*v. Fowler, 96 U. S., 513, the land was not vacant coal land within the meaning of the coal-land law, and therefore not subject to sale.

A coal entry is a sale by the Government and purchase by the entryman. The status and relation of the parties are the same as if the transaction were between individuals. If there be no subject matter there is no sale. Bevised Statutes 2362 is merely declaratory of-the general rule of law that in such case the purchaser is entitled to return of the purchase money.

Upon the question as to whether or not land is “ vacant ” the land records are not conclusive. As recognized by the Supreme Court in *Cosmos Exploration Company*v. *Gray Eagle Oil*Company, 190 U. S., 301, 311, 313, there may, be conditions on land which, as was held by the department in this *Quinn*case, take it out of the category of *“*vacant ”; and the ground or doctrine of *Atherton*v. *Fowler*and subsequent cases is that land occupied under claim and color of right thereto is. not vacant.

So that the attempt of the department in denying repayment to Quinn, to argue that the sale to Quinn was not erroneous, because the land appeared as vacant on the land, records and Quinn’s papers were in proper form, is specious. Although the proceedings in the local land office may be regular and the sale apparently proper and effective, yet, if, as here, by reason of facts not disclosed by the land records, it be found that the land is not subject to the entry, there is only an apparent, not an actual sale — in the language of Bevised Statute 2362, the land has been erroneously sold.

In decision of June 28, 1912, the department, in an attempt to distinguish *United States*v. *Colorado Anthracite*
      *498
      *Co.,*45 C. Cls., 614; 225 U. S., 219, speciously argued that, as a hearing was not expressly applied for in the protest, the local officers properly ignored it and relegated the coal company to its remedy under the proceeding thereafter to be instituted for amendment of the Spranlde patent.

But the local officers did not, and could not legally, ignore the protest. They considered it and held, as a matter of law, that, in the face of the transfer of the Sprankle title and Quinn’s adverse application, the alleged error could not *be*corrected, and that the operations of the coal company on the land were not an obstacle to purchase by Quinn, inasmuch as the coal company had not seasonably asserted claim to the land under the coal-land law.

The protest in disclosing facts which, as finally held by the department, established a situation which rendered the land not subject to Quinn’s entry, presented a matter which required investigation and adjudication before action on Quinn’s application could properly be taken, and the local officers should have suspended action. They could have ordered a hearing on the allegations of the protest or submitted the matter to the commissioner for instructions. *Hoover*v. Lawton, 9 L. D., 273, 276; *Tuttle*v. *Parkin,*9 L. D., 495, 496; *Blakely*v. *Kaiser,*12 L. D., 202; *Burkholder*v. *Sweet,*13 L. D., 203; *Baker*v. *Biggs,*15 L. D., 41, 43.

By the act of 1908 repayment is directed in every case of rejection of an entry in the absence of fraud in connection with the application, so that under this act the only inquiry is whether there was fraud.

After shifting positions in its denials of repayment the department finally stood upon the ground that the real cause for the cancellation of Quinn’s entry was that it was fraudulent, but

First, there was no fraud on Quinn’s part.

Second, his entry was allowed by the local officers with full notice of the facts, and the *Colorado Anthracite Company case*is controlling.

Third, the ground assigned by the department for rejection of Quinn’s entry was not fraud, but that the land was not subject to entry.

*499The facts were before the local officers at the time of then-first action, and the application of the law to those facts was the matter before the commissioner, the local officers, the commissioner again, and the department in the subsequent proceedings; yet the department has thrice ruled that as the penalty for differing with it as to the law applicable to the facts Quinn must lose the money which the local officers took from him pursuant to their view of the law.

*Mr. P. G.*Walker, with whom was *Mr. Assistant Attorney General Huston Thompson,*for the defendants.

Campbell, *Chief Justice,*

delivered the opinion of the court:

The plaintiff brought his suit on November 6, 1912, and seeks to recover the sum of $1,600, which he paid to purchase certain coal land, described as the north half of the southeast quarter of section 18, township 15 south, of range 86 west. His application to purchase was made on September 1, 1896. He was given a final receipt and certificate by the local land office upon payment of the said sum. On the same day upon which plaintiff’s application to purchase was filed a protest against its allowance was filed on behalf of the Baldwin Star Coal Co., who, or whose predecessor in title, had opened a coal mine on said land and'had made valuable improvements thereon, said company being in actual possession of the premises. The land appeared on the records of the Land Office to be vacant and free of unexpired coal declaration when plaintiff’s application was filed. He, however, knew that the coal company was in actual possession, and he was therefore chargeable with notice of its rights. His entry was subsequently canceled, as hereafter shown, under a decision of the Commissioner of the General Land Office, affirmed by the Secretary of the Interior, April 19, 1899. Thereafter plaintiff filed his application with the commissioner for repayment of the purchase money, which was denied August 9,1900. As the law then stood the right of an applicant for repayment was governed by section 2362 of the Revised Statutes and the act of June 16, 1880, 21 Stats., 287, It is very clear that any right of action which plaintiff *500had to sue under either of said statutes in this court was perfect on August 9, 1900, when his application was denied. *Rice case,*122 U. S., 617. The statute of limitations of six years commenced to run at least upon that date. It does not have to be pleaded in this court, but is jurisdictional and therefore must be taken notice of by the court. *Finn case,*128 U. S., 227; *Wardwell case,*172 U. S., 48, 52.

This view disposes of the contention of plaintiff that he should be allowed to recover under the operation of said statutes.

After the act of March 26, 1908, 3o Stats., 48, was passed the plaintiff filed another application for repayment of said sum, and his application was again denied by the commissioner, whose ruling was upon appeal affirmed by the Secretary of the Interior. For the reason stated, his action in this court must be controlled by the last-named act, which is broad enough in terms to authorize repayment in a proper case of moneys “ paid under any public land law ” prior to the enactment of that statute upon an application seasonably made. We may say in passing that the act of 1908 being broad in scope and more specific in some of its provisions than section 2362 of the Kevised Statutes while at the same time dealing comprehensively with the same subject matter, apparently supersedes that section. But that question is immaterial in this case. The question here is whether plaintiff ought to recover under the act of 1908. The facts found by the commissioner are controlling upon us because, if for no other reason, they are the only facts shown in the record. He denied relief to plaintiff because he found that plaintiff had not complied with the coal land laws, that his declaratory statement was false, that plaintiff had been guilty of fraud or attempted fraud in connection with his application, and that his filing was illegal. It appears .that one Sprankle had filed a declaratory statement upon certain land describing it as the south half of the southeast quarter, which by mesne conveyance had been conveyed to said coal company. The improvements made by Sprankle and his successor in title, or by one of them, were located upon the north half of said quarter section, and Sprankle or the coal *501company had been continuously in possession of the land operating a coal mine thereon. When, upon the filing of plaintiff’s application to purchase the said north half, the coal company found that its improvements were upon that land, while its deeds and the patent to Sprankle described the land as the south half of the southeast quarter, the com pany and Sprankle took steps to have the patent corrected to describe the land of which it was in possession and which he had originally intended to declare upon and secure a patent for. This correction was opposed by Quinn, who insisted upon his right to the land. The Land Office granted relief to the coal company and canceled plaintiff’s entry.

It is manifest from the facts found that Quinn knew that the coal company’s improvements were upon the land he sought to declare upon; that said company was in actual possession of it, and that it was ignorant of the misdescrip tion of the land in the title papers. When, therefore, he filed his application on September 1, 1896, to purchase, and stated therein that he was in possession of said land, hi-, knew that statement was untrue. He did not disclose that the coal company was in possession or that its improvements, made long before were upon that land. Attempt to explain this failure to make such disclosure is made by the statement that he used a form of application prescribed by the regula tions relating to purchase in the exercise of preference right instead of another form, also prescribed by the department, that would have been better applicable to the facts of the case. But plaintiff and not the department chose the form that was used, and he could have used the proper form. It would have required disclosures not called for in the form that was used, and his failure to use it is not explained by the fact that the department prescribed different forms of application suited to different conditions.

The act of 1908 allows repayment only in cases where the applicant shall not have been “guilty of any fraud or attempted fraud ” in connection with “ the application, entry, or proof.” Manifestly a general'definition of “fraud” that will defeat an effort to secure repayment can not be given that will apply in all cases. Each case must largely depend *502upon its own facts. It should not be-said that the mere filing of an application to purchase land of which another is in possession constitutes without more a fraud. Such a filing may be necessary to inaugurate a contest in good faith; but under the facts disclosed the plaintiff was a trespasser. *Atherton*v. Fowler, 96 U. S., 513; *Roberts*v. Gordon, 14 L. D., 475. The party in possession made good his claim to the particular land and received a patent therefor. Plaintiff’s application contained no suggestion of the coal company’s actual possession or improvements. He expected to get the benefit of their improvements. He had not made any of his own that could be said to comply with the land laws. This court, speaking through Judge Booth in *Billings'*case, 50 C. Cls., 328, 336, said:

> “It is impossible to escape from a conclusion that Congress did not by the act of 1908 intend to indiscriminately refund all advanced payments made in pursuance of law upon a land entry upon the mere proof that the same had been made. The Land Office has given refunding acts the very widest latitude and announced most generous and equitable decisions with respect to this subject.”

In the instant case the Commissioner of the General Land Office and the Secretary of the Interior, after careful consideration, have declared that plaintiff’s filing was illegal— that his application was tainted with fraud. They apply the rule of fair dealing. In effect they declare that the applicant seeking repayment must come in with clean hands.

It can be said of the act of 1908, as was said by the Supreme Court of the act of 1880 *(Colorado Anthracite Co.*case, 225 U. S., 223), that it proceeds upon equitable principles and is intended to be administered accordingly. Under the facts developed, we can not say that the Land Office erred in their conclusions. It follows that the plaintiff’s petition should be dismissed, and it is so ordered.

All of the judges concur.