Mr. J. S. Jenkins for appellants.
Messrs. John W. Shartel, James R. Keaton, and Frank Wells for appellees.
Mr. Justice Brewer delivered the opinion of the court:
On June 1, 1901, James L. Hodges filed his petition in the district court of Oklahoma county, Oklahoma territory, praying that the defendants, the heirs of William R. Colcord, deceased, the holders of the legal title by patent from the United States to a tract of land in the county, be decreed to hold that title in trust for him. In it he alleged that on July 22, 1889, he was legally qualified to make a homestead entry of the land; that on that day he settled upon it with intent to acquire title under the homestead laws of the United States, and immediately made permanent and lasting improvements, as required by law. He further alleged 'that at the time he entered upon said land, and made settlement thereon, one John Gayman had entered upon and occupied said land; that on the 25th day of April, 1889, the said John Gayman obtained a pretended [193 U.S. 192, 193] homestead entry on said land; that said Gayman was disqualified from ever entering or obtaining any right or title to said land, by reason of his entering upon and occupying a portion of the Oklahoma country declared open to settlement by the President's proclamation of March 23, 1889 [26 Stat. at L. 1544], prior to 12 o'clock noon, April 22, 1889, as shown by a copy of the decision of the Land Department, recorded in vol. 24, page 221 of the United States Land Decisions, hereto attached, marked 'Exhibit A,' and made a part of this petition.
A demurrer to the petition was sustained by the district court, and the suit dismissed. The decision was affirmed by the supreme court of the territory (70 Pac. 383), whereupon an appeal was taken to this court. Pending the proceedings in the territorial courts Hodges died, and the suit was revived in the names of his heirs.
The appellants' contention is that Gayman was legally disqualified to make a homestead entry of the land; that his entry was absolutely void; that Hodges was the first person legally qualified to make an entry who actually settled upon the land, and that therefore, upon Gayman's relinquishment, he became entitled to entry and patent. On the other hand, the defendants contention rests on 2. chap. 89 (21 Stat. at L. 141, U. S. Comp. Stat. 1901, p. 1392), which provides:
The exhibits attached to the petition show that the Land Department found that Gayman was within the territory at the time of the opening of the lands for settlement; that after the decision in Smith v. Townsend, 148 U.S. 490 , 37 L. ed. 533, 13 Sup. Ct. Rep. 634, he filed a relinquishment in the local land office, and that such relinquishment was induced by the contest of Colcord. This finding, being one of fact, is conclusive upon the courts. Colcord was the contestant who procured the cancelation of Gayman's homestead entry. He comes within the terms of the statute. Was this statutory right of entry destroyed by Hodges' settlement, a settlement made intermediate Gayman's homestead entry and the initiation of this contest? We are of the opinion that it was not. Gayman's homestead entry was prima facie valid. There was nothing on the face of the record to show that he had entered the territory prior to the time fixed for the opening thereof for settlement, or that he had in any manner violated the statute or the proclamation of the President. This prima facie valid entry removed the land, temporarily, at least, out of the public domain, and beyond the reach of other homestead entries. The first to contest was Colcord, and as a result of that contest Gayman relinquished his entry. To take from Colcord the benefit of the relinquishment which his contest had secured would be an injustice to him as well as a disregard of the act of 1880.
Some reliance is placed by the appellants on the language of this court in Calhoun v. Violet, 173 U.S. 60, 64 , 43 S. L. ed. 614, 615, 19 Sup. Ct. Rep. 324, 325, in which we said in respect to an entry similar to Gayman's 'that an entry of land made under such circumstances was void, and that the ruling by the Land Department so holding was correct;' but that language was used with reference to the claim of the entryman, and what was meant was that such entry [193 U.S. 192, 195] was void as to him,-that is, gave him no rights. So here the entry by Gayman was, as to him, void,-gave him no rights. But that decision did not determine what effect an entry prima facie valid, yet made by one in fact disqualified to make the entry, had upon the status of the land or the rights of other parties. Generally, a homestead entry while it remains uncanceled withdraws the land from subsequent entry. Such has been the ruling of the Land Department. In Re Cliff, 3 Land Dec. 216, 218, it was said by Secretary Teller:
The same proposition was affirmed in Re Laird, 13 Land Dec. 502, 503. In McMichael v. Murphy, 20 Land Dec. 147, 150, the question arose as to an entry in Oklahoma, and Secretary Smith discussed it in these words:
And again, on page 364, L. ed. p. 366, Sup. Ct. Rep. p. 115, after noticing some defects in the form of the entry:
But it is unnecessary to multiply quotations. The entry of Gayman, though ineffectual to vest any rights in him, and therefore void as to him, was such an entry as prevented the acquisition of homestead rights by another until it had been set aside. It was relinquished and removed from the records of the land office as the result of a contest by Colcord. He was entitled under the statute to the benefit of that contest, and was rightfully given an entry of, and patent to, the land.
The judgment of the Supreme Court of Oklahoma is affirmed.