Opinion of the court by
Hainer, J. :
The right of the plaintiff in error to enter the land in controversy is based upon the application of Levi Holt, filed March 11, 1890, four days after the' decision of the Commissioner of the General Land Office holding White’s entry for cancellation, and before appeal was taken
therefrom. However, White appealed from the decision of the Commissioner of the General Land Office to the Secre-, tarv of the Interior within the time required by the rules of practice, and hence his homestead entry was not cancelled pending such appeal, and therefore his entry remained intact upon the records of the land office until he voluntarily relinquished on November 29, 1890, more than six months after Holt had made application to the local land office to file his declaratory statement.
Ifi, the case of
McMichael v. Murphy et al.,
20 L. D. 535; the Secretary of the Interior held that the application of Holt to enter the land, made after the date of the decision of the Commissioner of the General Land Office, and within the time allowed for appeal, should be received, but not placed of record until after the time for appeal had expired, and the rights of the entryman on such appeal determined by the department. In other words, that such application should be received subject to the rights of the entryman on the appeal. And in enunciating this doctrine, the Secretary followed the former rulings of the department in the cases of
John H. Reed,
6 L. D. 563, and
Henry Ganger,
10 L. D. 221.
In the case of
Cowles v. Huff,
24 L. D. 81, decided January 30, 1897, the Secretary of the Interior decided that:
“An application to enter should not be received during the time allowed for appeal from a judgment cancelling a prior entry of the land applied for; nor the land so involved held subject to entry, or application to enter, until the rights of the entryman have been finally determined.”
And in this case, the doctrine announced in the ease of
Henry Gauger,
10 L. D. 221, and other cases following it, was expressly overruled.
In
Cowles v. Huff supra,
the Secretary uses the following language:
“In the case at bar, Hur made his application to enter while Moore’s entry was still in existence, and continued to exist for- over a year and a half thereafter. His application was rejected, and he appealed. The question is, whether he acquired any rights under his application under the law, or rulings of the departments. This question can best bo determined by reference to the rulings of the department and courts.
“The department has repeatedly held that an entry segregates the land covered thereby, and so long as such entry exists, it precludes any other disposition of the land.
(Whitney v. Maxwell,
2 L. D. 98;
Schrotberger v. Arnold,
6. L. D. 425;
Allen v.
Curtis, 7 L. D. 444;
James A. Forward,
8 L. D. 528;
Russell v. Gerold,
10 L. D. 18;
Swims v. Ward
13 L. D. 686;
Hanscomb v. Sines et al.,
15 L. D. 27;
Faulkner v. Miller,
16 L. D. 130.)
“The courts have held the same view.
(Witherspoon v. Duncan,
4 Wall. 210;
Hastings and Dakota R. R. Co. v. Whitney,
132 U. S. 357;
Starr v. Burk,
133 U. S. 541, 548.)
“If the land covered by a substituting entry is not subject to disposition, it follows that an application to enter such land confers no rights whatever upon the applicant. If such application shall be rejected, and an appeal be taken from such action, it is not a. pending application that will attach on the cancellation of-the previous entry, for the appeal cannot operate to create any right not secured by the application itself. See
Patrick Kelley,
11 L. D. 326;
Goodale v. Olney
(on review), 13 L. D. 498;
Maggie Laird
Id. 502;
Holmes v. Hockett
14 L. D. 127;
Swanson v. Simmons,
16 L. D. 44;
Mills v. Dally,
17 L. D. 345;
Cook v. Villa
(on review), 19 L. D. 442;
Walker v. Snider,
(on review), Id. 467;
Gallagher v. Jackson,
20 L. D. 389;
McMichael v. Mur
phy et al.,
(on review), Id. 535;
McCreary v. Wert et al., 21
L. D. 145.
“In view oí these authorities, it is held that Huff did not acquire any rights, either by his application to enter, or by his appeal.”
In
McMichael et al., v. Murphy, 12
Okla. 155, this court said:
“A homestead entry, valid upon its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain, and precludes it from subsequent homestead entry or settlement until the original entry is uancelled. or declared forfeited; in which case the land reverts to the government as a part of the public domain, and becomes again subject to entry under the land laws of the United States.”
And the same rule was followed in
Hodges v. Colcord et al.,
12 Okla. 313. And this doctrine was also upheld by the recent decision of the supreme court of the United States, affirming the decision in the case of
Hodges v. Colcord,
193 U. S. 192.
Applying these decisions to the ease at bar, it follows that, since Holt mads his application to enter said tract of land while White’s homestead entry was intact, and remained so for more than six months thereafter) Holt or his heirs could acquire no rights whatever by virtue of his application.
But it is contended by the plaintiff in error that the defendants Murphy and Classen had entered into a fraudulent conspiracy with C. W. Ransom to deprive the heirs of Holt of the right of perfecting the application which had been- made by the agent of Levi Holt on 'March 11, 1890. While we do not deem this, contention necessary to the de
termination of the cause it is sufficient to say that the district court heard the evidence offered on behalf of the plaintiff and the defendants, and found for the defendants.
It is the settled rule of this court that where a controverted question of fact is submitted to the court, and the court after hearing the evidence, making a finding thereon, and the evidence reasonably' sustains such finding, it will not be disturbed by this court.
In
Ellison v. Beannabia,
4 Okla. 347, in passing upon this question, the court said:
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the court by
Hainer, J. :
The right of the plaintiff in error to enter the land in controversy is based upon the application of Levi Holt, filed March 11, 1890, four days after the' decision of the Commissioner of the General Land Office holding White’s entry for cancellation, and before appeal was taken
therefrom. However, White appealed from the decision of the Commissioner of the General Land Office to the Secre-, tarv of the Interior within the time required by the rules of practice, and hence his homestead entry was not cancelled pending such appeal, and therefore his entry remained intact upon the records of the land office until he voluntarily relinquished on November 29, 1890, more than six months after Holt had made application to the local land office to file his declaratory statement.
Ifi, the case of
McMichael v. Murphy et al.,
20 L. D. 535; the Secretary of the Interior held that the application of Holt to enter the land, made after the date of the decision of the Commissioner of the General Land Office, and within the time allowed for appeal, should be received, but not placed of record until after the time for appeal had expired, and the rights of the entryman on such appeal determined by the department. In other words, that such application should be received subject to the rights of the entryman on the appeal. And in enunciating this doctrine, the Secretary followed the former rulings of the department in the cases of
John H. Reed,
6 L. D. 563, and
Henry Ganger,
10 L. D. 221.
In the case of
Cowles v. Huff,
24 L. D. 81, decided January 30, 1897, the Secretary of the Interior decided that:
“An application to enter should not be received during the time allowed for appeal from a judgment cancelling a prior entry of the land applied for; nor the land so involved held subject to entry, or application to enter, until the rights of the entryman have been finally determined.”
And in this case, the doctrine announced in the ease of
Henry Gauger,
10 L. D. 221, and other cases following it, was expressly overruled.
In
Cowles v. Huff supra,
the Secretary uses the following language:
“In the case at bar, Hur made his application to enter while Moore’s entry was still in existence, and continued to exist for- over a year and a half thereafter. His application was rejected, and he appealed. The question is, whether he acquired any rights under his application under the law, or rulings of the departments. This question can best bo determined by reference to the rulings of the department and courts.
“The department has repeatedly held that an entry segregates the land covered thereby, and so long as such entry exists, it precludes any other disposition of the land.
(Whitney v. Maxwell,
2 L. D. 98;
Schrotberger v. Arnold,
6. L. D. 425;
Allen v.
Curtis, 7 L. D. 444;
James A. Forward,
8 L. D. 528;
Russell v. Gerold,
10 L. D. 18;
Swims v. Ward
13 L. D. 686;
Hanscomb v. Sines et al.,
15 L. D. 27;
Faulkner v. Miller,
16 L. D. 130.)
“The courts have held the same view.
(Witherspoon v. Duncan,
4 Wall. 210;
Hastings and Dakota R. R. Co. v. Whitney,
132 U. S. 357;
Starr v. Burk,
133 U. S. 541, 548.)
“If the land covered by a substituting entry is not subject to disposition, it follows that an application to enter such land confers no rights whatever upon the applicant. If such application shall be rejected, and an appeal be taken from such action, it is not a. pending application that will attach on the cancellation of-the previous entry, for the appeal cannot operate to create any right not secured by the application itself. See
Patrick Kelley,
11 L. D. 326;
Goodale v. Olney
(on review), 13 L. D. 498;
Maggie Laird
Id. 502;
Holmes v. Hockett
14 L. D. 127;
Swanson v. Simmons,
16 L. D. 44;
Mills v. Dally,
17 L. D. 345;
Cook v. Villa
(on review), 19 L. D. 442;
Walker v. Snider,
(on review), Id. 467;
Gallagher v. Jackson,
20 L. D. 389;
McMichael v. Mur
phy et al.,
(on review), Id. 535;
McCreary v. Wert et al., 21
L. D. 145.
“In view oí these authorities, it is held that Huff did not acquire any rights, either by his application to enter, or by his appeal.”
In
McMichael et al., v. Murphy, 12
Okla. 155, this court said:
“A homestead entry, valid upon its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain, and precludes it from subsequent homestead entry or settlement until the original entry is uancelled. or declared forfeited; in which case the land reverts to the government as a part of the public domain, and becomes again subject to entry under the land laws of the United States.”
And the same rule was followed in
Hodges v. Colcord et al.,
12 Okla. 313. And this doctrine was also upheld by the recent decision of the supreme court of the United States, affirming the decision in the case of
Hodges v. Colcord,
193 U. S. 192.
Applying these decisions to the ease at bar, it follows that, since Holt mads his application to enter said tract of land while White’s homestead entry was intact, and remained so for more than six months thereafter) Holt or his heirs could acquire no rights whatever by virtue of his application.
But it is contended by the plaintiff in error that the defendants Murphy and Classen had entered into a fraudulent conspiracy with C. W. Ransom to deprive the heirs of Holt of the right of perfecting the application which had been- made by the agent of Levi Holt on 'March 11, 1890. While we do not deem this, contention necessary to the de
termination of the cause it is sufficient to say that the district court heard the evidence offered on behalf of the plaintiff and the defendants, and found for the defendants.
It is the settled rule of this court that where a controverted question of fact is submitted to the court, and the court after hearing the evidence, making a finding thereon, and the evidence reasonably' sustains such finding, it will not be disturbed by this court.
In
Ellison v. Beannabia,
4 Okla. 347, in passing upon this question, the court said:
“Under the code of civil procedure, the court now hears oral testimony in chancery cases, and like a jury, considers the witnesses, observes their intelligence and capacity, their fairness or bias, their manner and characteristics, and has thus opportunities for judging the value of the testimony, such as this court cannot have. The rule is, therefore, hero adopted, as in other states which have the same practice act, that a finding of fact by the court is equivalent to a verdict by a jury; and if there is testimony to support the material allegations of the petition, this court cannot disturb the finding and judgment even though the finding of fact by the trial court might be contrary to the judgment of the appellate court.
(Beaubieu et al., v. Hindman,
37 Kan. 227;
Mulhall v. Mulhall
3 Okla. 252, 41 Pac. 577;
Ruth v. Ford,
9 Kan. 17;
Beal v. Codding,
32 Kan. 107;
K. P. Railway Co. v. Kunkel,
17 Kan. 145;
Walker v. Eagle M’f'g.
Co. 8 Kan. 397;
Perea v. Barclay.
[N. Mex.] 27 Pac. 507.)”
In McKennon,
Admr. v. Pentecost,
8 Okla. 117, the court said:
“Where an issue of fact .is tried by a court without a jury, and a general finding is made upon such issue by the court, upon oral testimonv, such finding is a finding of every special thing necessarj'- to be found to sustain the general finding, and, if there be any evidence to sustain it, such find
ing is conclusive upon this court upon all disputed and doubtful questions of fact.”
See also
Craggs et al., v.
Earls, 8 Okla. 462.
In
Overstreet and Rock Island Implement Co. v. Citizens Bank 12
Okla. 383, the court said:
“Where fraud is relied upon as the basis for equitable relief and the trial court, after hearing the evidence, finds that fraud has not been established, the appellate court will not disturb such finding, unless it is clearly against the weight of evidence.”
In our opinion, the district court was warranted in finding that the allegations of fraud in the petition were not sustained by the evidence.
We therefore hold that:
1. A homestead entry, valid upon its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain, and, so long as it remains a subsisting entry, precludes it from subsequent entry.
2.
A homestead application to enter land already covered by a subsisting homestead entry, can confer no rights whatever upon the applicant.
3. Where an application to enter land already covered by a homestead entry is received by the local land office and rejected, and an appeal is taken from such action, it is not a pending application that will attach on the • cancellation of the previous entry, since the appeal cannot operate to create, as a matter of law, any right not secured by the application. And
4. Where fraud is relied upon ás a basis for equitable relief, and the trial court, after hearing all the' evidence, -finds that fraud has not been proven, this court will not disturb
such finding, unless it is clearly against the weight of the evidence.
It follows that the plaintiff. failed to -allege or prove a cause of action and the judgment of the district court is therefore affirmed.
Irwin, J., who presided in the court below, and Burwell, J,, not sitting; all the other Justices concurring.