Lane v. Duncan Townsite Co.

44 App. D.C. 63, 1915 U.S. App. LEXIS 2676

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 1, 1915
• Docket: No. 2822
• Status: Published

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

Undoubtedly, an allotment certificate under the above provision of statute gave to an allottee such an equitable possessory title to the property allotted as to forbid collateral attack, but that legal title can only pass to an allottee by patent seems settled by the act of Congress of April 26, 1906 (34 Stat. at L. 137, chap. 1875, Comp. Stat. 1913, sec. 8288), which provides in section 5 thereof that “all patents or deeds to allot-tees and other conveyances affecting lands of any of said tribes shall be recorded in the office of the Commissioner to the Five Civilized Tribes, and when so recorded shall convey legal title, and shall be delivered under the direction of the Secretary of the Interior to the party entitled to receive the same.”

It may well be that only the ministerial duty remains to the Secretary of the Interior of issuing a patent where the allotment certificate has been lawfully procured and no question of fraud is involved. Ballinger v. United States, 216 U. S. 240, 54 L. ed. 464, 30 Sup. Ct. Rep. 338. But a different situation is presented where, as in the present case, Alberson, the allottee, was not in existence on September 25, 1902, and was, therefore, not entitled to participate in the allotment of the tribal property. That it is within the supervisory power of the Secretary of the Interior to withhold the issuance of a patent for public lands when he is satisfied that the final certificate has been procured by fraud, is well settled. Cornelius v. Kessel, 128 U. S. 456, 32 L. ed. 482, 9 Sup. Ct. Rep. 122. The same rule has been applied to Indian allotments, 24 Land Dec. 264; United States ex rel. Lowe v. Fisher, 223 U. S. 95, 56 L. ed. 364, 32 Sup. Ct. Rep. 196; Lynch v. Harris, 33 Okla. 23, 124 Pac. 50; Wallace v. Adams, 74 C. C. A. 540, 143 Fed. 716.

But we are asked to compel the Secretary of the Interior to perpetuate a fraud, — to do an unlawful act, — to issue a patent to a person who, for the purposes 'of this case, never had any legal existence. Whatever standing relator might have in a proper action in a court of competent jurisdiction in Oklahoma to assert its claim of innocent purchaser, or to defend in an action by the government to cancel the certificate of allotment, it is clear that it is not entitled to the relief here sought. The rights of innocent purchasers cannot be adjudicated in this proceeding. The Secretary of the Interior is not required to look beyond Alberson, and, unless clear legal title can be established in him as allottee, the writ must be denied. The writ of mandamus is not a writ of right, and the remedy can only be invoked when the relief sought possesses sufficient merit to appeal to the sound discretion of the court. The party seeking its relief must come into court with clean hands, and with a clear legal right for which the law affords no adequate remedy. The writ will not, therefore, issue to compel the performance of a wrong or to confirm or perpetuate a fraud. United States ex rel. Turner v. Garfield, 33 App. D. C. 195, affirmed in 222 U. S. 204, 56 L. ed. 165, 32 Sup. Ct. Rep. 37.

The judgment is reversed, with costs, and the cause is remanded for dismissal. Reversed and remanded.

An application for the allowance of a writ of error to remove the cause to the Supreme Court of the United States was granted and the writ issued November 3, 1915.