Mr. Justice Van Orsded
delivered the opinion of the Court:
The decision here must turn upon the interpretation to be placed upon the following proviso to sec. 7 of the Act of Congress of March 3, 1891 (26 Stat. at L. 1095, 1099, chap. 561, Comp. Stat. 1916, §§ 5116, 5113, 8 Fed. Stat. Anno. 2d ed. [555]*555pp. 825, 867) : “That after the lapse of two years from the date of the issuance of the receiver’s receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-land, or pre-emption laws, or under this act, and when there shall be no ponding contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying tlie land by him entered, and the same shall be issued to him; but this proviso shall not be construed to require the delay of two years from the date of said entry before the issuing of a patent therefor.”
It is conceded that no contest or protest or any proceeding whatever wras directed against this entry within two years after the issuance of the final receipt. But it is urged that, inasmuch as the proceedings for cancelation finally instituted were based upon alleged fraud, the action is not barred by the limitations of the foregoing statute. Many cases are cited by respondents to the effect that proceedings in the Land Office to acquire title to public lands may be opened and set aside for fraud at any time prior to the issue of patent. But in no case has such a ruling been made in the face of a limitation terminating the Secretary’s jurisdiction.
The provision of the statute before us was considered by this court in the case of Hoglund v. Lane, 44 App. D. C. 310. The .facts in that case were substantially the same as in the case at bar. There, as here, cancelation of the entry was sought “on account of nonresidence and lack of cultivation.” The facts relied upon in the answer to sustain the jurisdiction of the department were substantially tbe same in both cases. The present case is differentiated, however, by the averment that, by reason of the alleged acts, the final receipt was fraudulently procured.
In any event, the court below properly sustained the demurrer. Accepting the contention of counsel for the government that the Department had jurisdiction to reopen the case, it could do so only on the ground of fraud discovered after the Statute of Limitations had run. In this, the answer fails to respond to an elementary rule of pleading, since no excuse is assigned for failure to discover the alleged fraud within the [556]*556two-year period. In United States v. Diamond Coal & Coke Co. — C. C. A. — , 254 Fed. 266, a.bill of complaint attempting to annul patents to coal lands under sec. 8 of tbe present act was held defective for failure to allege “the time when the fraud was discovered, the circumstances of its discovery, what the discovery was, and why it was not made before, so that the court may clearly see that the discovery could not have been made before by the exercise of ordinary diligence.” This rule of pleading, however, is elementary. Wood v. Carpenter, 101 U. S. 135, 140, 143, 25 L. ed. 807-809; Badger v. Badger, 2 Wall. 87, 95, 17 L. ed. 836, 838. The application of the rule is the same, whether the court is considering the sufficiency of a bill of complaint or, as here, an answer, in which an attempt is made to plead fraud as an affirmative defense.
The vague and evasive language- here employed to set up fraud, without any attempt to justify the delay, is indicative of a fictitious defense. The facts relied upon are not of such a character that their discovery need involve the Land Department in any difficulty whatever. Efficient administration would seem to dictate an inquiry into the facts before the issue of a final receipt, which would disclose fraud, if it existed, more readily and much more accurately than to negligently allow the investigation, as in this instance, to be postponed for years. The Department has at its command officials, presumably capable, whose duty it is to make such investigations; hence, there is no excuse for failure to set forth the impediments, if any in fact exist, to an earlier discovery of the alleged fraud.
But treating the charge of fraud in the present case as completely distinguishing it in respect of the issues of fact from the Hoglund Case, we think respondents’ case is not strengthened. We there held the limitation was jurisdictional, and a bar 'to any action by the Department against an uncontested entry, after the lapse of two years, and that nothing remained for the Department but the mere ministerial act of issuing a patent.
In tho Hoglund Case, construing the statute, we said: “It is clear that the above proviso is jurisdictional in its operation, [557]*557and fixes a limitation beyond which the Secretary is without jurisdiction to question the right of an entryman to his patent. We are not estopped to construe the act by a departmental construction of it in this case. It is urged by counsel for the government that it is merely a statute of limitations, and the petitioner waived its benefit by failing to take timely advantage of it. It is not a mere statute of limitations, which relates to and affects procedure, and could therefore be waived. It is a statute of repose affecting and settling the title to real estate. It establishes a limitation within which the government or a private individual may by protest or contest challenge the title of an entryman. When the time expires, the right ceases.”
On appeal (Lane v. Hoglund, 244 U. S. 174, 61 L. ed. 1066, 37 Sup. Ct. Rep. 558) the Supreme Oourt, affirming this court, said: “Looking, then, at the statute in the light of all that bears upon its purpose and meaning, we think it certainly and unmistakably lays upon the Secretary of the Interior, as the head of the Land Department, a plain duty to cause a patent to be issued to a homestead entryman whenever it appears, as concededly it did in this instance, that two years have elapsed since the issue of the receiver’s receipt upon the final entry, and that during that period no proceeding has been initiated or order made which calls in question the validity of the entry. In the exercise of its discretion Congress has said, in substance, by this statute that for two years after the entryman submits final proof and obtains the receiver’s receipt the entry may be held open for the initiation of proceedings to test its validity, but that if none such be begun within that time it shall be passed to patent as a matter of course. Thus, in a case like this, where, according, to the conceded facts no proceeding was begun within the prescribed period, there is no room for the exercise of discretion or judgment, but on the contrary a plain duty to see that the entryman receives a patent.”
The purpose of Congress in enacting- this limitation, as reviewed at length in the opinion of the Supreme Court, was to clear the Land Department of large numbers of entries which “were suspended by the General Land Office on vague and in[558]*558definite suggestions of fraud or noncompliance with, law, to .await investigation by special agents of that bureau.
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Mr. Justice Van Orsded
delivered the opinion of the Court:
The decision here must turn upon the interpretation to be placed upon the following proviso to sec. 7 of the Act of Congress of March 3, 1891 (26 Stat. at L. 1095, 1099, chap. 561, Comp. Stat. 1916, §§ 5116, 5113, 8 Fed. Stat. Anno. 2d ed. [555]*555pp. 825, 867) : “That after the lapse of two years from the date of the issuance of the receiver’s receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-land, or pre-emption laws, or under this act, and when there shall be no ponding contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying tlie land by him entered, and the same shall be issued to him; but this proviso shall not be construed to require the delay of two years from the date of said entry before the issuing of a patent therefor.”
It is conceded that no contest or protest or any proceeding whatever wras directed against this entry within two years after the issuance of the final receipt. But it is urged that, inasmuch as the proceedings for cancelation finally instituted were based upon alleged fraud, the action is not barred by the limitations of the foregoing statute. Many cases are cited by respondents to the effect that proceedings in the Land Office to acquire title to public lands may be opened and set aside for fraud at any time prior to the issue of patent. But in no case has such a ruling been made in the face of a limitation terminating the Secretary’s jurisdiction.
The provision of the statute before us was considered by this court in the case of Hoglund v. Lane, 44 App. D. C. 310. The .facts in that case were substantially the same as in the case at bar. There, as here, cancelation of the entry was sought “on account of nonresidence and lack of cultivation.” The facts relied upon in the answer to sustain the jurisdiction of the department were substantially tbe same in both cases. The present case is differentiated, however, by the averment that, by reason of the alleged acts, the final receipt was fraudulently procured.
In any event, the court below properly sustained the demurrer. Accepting the contention of counsel for the government that the Department had jurisdiction to reopen the case, it could do so only on the ground of fraud discovered after the Statute of Limitations had run. In this, the answer fails to respond to an elementary rule of pleading, since no excuse is assigned for failure to discover the alleged fraud within the [556]*556two-year period. In United States v. Diamond Coal & Coke Co. — C. C. A. — , 254 Fed. 266, a.bill of complaint attempting to annul patents to coal lands under sec. 8 of tbe present act was held defective for failure to allege “the time when the fraud was discovered, the circumstances of its discovery, what the discovery was, and why it was not made before, so that the court may clearly see that the discovery could not have been made before by the exercise of ordinary diligence.” This rule of pleading, however, is elementary. Wood v. Carpenter, 101 U. S. 135, 140, 143, 25 L. ed. 807-809; Badger v. Badger, 2 Wall. 87, 95, 17 L. ed. 836, 838. The application of the rule is the same, whether the court is considering the sufficiency of a bill of complaint or, as here, an answer, in which an attempt is made to plead fraud as an affirmative defense.
The vague and evasive language- here employed to set up fraud, without any attempt to justify the delay, is indicative of a fictitious defense. The facts relied upon are not of such a character that their discovery need involve the Land Department in any difficulty whatever. Efficient administration would seem to dictate an inquiry into the facts before the issue of a final receipt, which would disclose fraud, if it existed, more readily and much more accurately than to negligently allow the investigation, as in this instance, to be postponed for years. The Department has at its command officials, presumably capable, whose duty it is to make such investigations; hence, there is no excuse for failure to set forth the impediments, if any in fact exist, to an earlier discovery of the alleged fraud.
But treating the charge of fraud in the present case as completely distinguishing it in respect of the issues of fact from the Hoglund Case, we think respondents’ case is not strengthened. We there held the limitation was jurisdictional, and a bar 'to any action by the Department against an uncontested entry, after the lapse of two years, and that nothing remained for the Department but the mere ministerial act of issuing a patent.
In tho Hoglund Case, construing the statute, we said: “It is clear that the above proviso is jurisdictional in its operation, [557]*557and fixes a limitation beyond which the Secretary is without jurisdiction to question the right of an entryman to his patent. We are not estopped to construe the act by a departmental construction of it in this case. It is urged by counsel for the government that it is merely a statute of limitations, and the petitioner waived its benefit by failing to take timely advantage of it. It is not a mere statute of limitations, which relates to and affects procedure, and could therefore be waived. It is a statute of repose affecting and settling the title to real estate. It establishes a limitation within which the government or a private individual may by protest or contest challenge the title of an entryman. When the time expires, the right ceases.”
On appeal (Lane v. Hoglund, 244 U. S. 174, 61 L. ed. 1066, 37 Sup. Ct. Rep. 558) the Supreme Oourt, affirming this court, said: “Looking, then, at the statute in the light of all that bears upon its purpose and meaning, we think it certainly and unmistakably lays upon the Secretary of the Interior, as the head of the Land Department, a plain duty to cause a patent to be issued to a homestead entryman whenever it appears, as concededly it did in this instance, that two years have elapsed since the issue of the receiver’s receipt upon the final entry, and that during that period no proceeding has been initiated or order made which calls in question the validity of the entry. In the exercise of its discretion Congress has said, in substance, by this statute that for two years after the entryman submits final proof and obtains the receiver’s receipt the entry may be held open for the initiation of proceedings to test its validity, but that if none such be begun within that time it shall be passed to patent as a matter of course. Thus, in a case like this, where, according, to the conceded facts no proceeding was begun within the prescribed period, there is no room for the exercise of discretion or judgment, but on the contrary a plain duty to see that the entryman receives a patent.”
The purpose of Congress in enacting- this limitation, as reviewed at length in the opinion of the Supreme Court, was to clear the Land Department of large numbers of entries which “were suspended by the General Land Office on vague and in[558]*558definite suggestions of fraud or noncompliance with, law, to .await investigation by special agents of that bureau. These suspensions were so numerous and the force available for investigation was so insufficient as to create a practical blockade in the issuance of patents to the serious prejudice of bona fide claimants under the public land laws.”
This proviso, in conjunction with the next succeeding section of the act, discloses a design on the part of Congress not only to prevent delays in the Land Department and in the course, but to establish the security of patent titles. Section 8, among other tilings, provides “that suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents.” This placed a limitation upon the bringing of suits in equity to annul patents, except in cases based upon fraud, in which the limitations of the statute do not begin to run until the discovery of the fraud. Exploration Co. v. United States, 247 U. S. 435, 62 L. ed. 1200, 38 Sup. Ct. Rep. 571. The act indicates a clear intention on the part of Congress to fix a limitation upon the jurisdiction of the Land Department for any reason whatever to question the validity of an entryman’s right to a patent, and a like limitation within which the patent may be annulled in a court of equity having jurisdiction of the res.
No reason has been advanced that would justify us in distinguishing the interpretation to be placed upon the statute in this case from that placed upon it in the Soglund Gase. Indeed, the Department was so convinced, until the intervention of the Agricultural Department through the Department of Justice; and the. Department of Justice, out of abundant caution, has already instituted a suit in equity, apparently intending, if possible, to secure a judicial cancelation of the final receipt in advance of a final mandate compelling the issuance of a patent.
But it is urged that the issuance of a writ in this case would amount to a perpetuation of a fraud. Of course, mandamus [559]*559is not a writ of right. Its function is to prevent fraud, and not to perpetuate it. But the question here is one of power. If the Land Department is without jurisdiction to act in the premises, fraud will not confer jurisdiction. The Congress has seen fit, at the termination of the two-year limitation after the issue of a final receipt, if no contest or protest has been directed against the entry, to transfer jurisdiction of the whole subject-matter from the Department to the courts. A mere declaration of fraud cannot restore the jurisdiction after it has been lost by the running of the Statute of Limitations. To resume jurisdiction in such a case recourse must be had to a proceeding in equity, a jurisdiction not possessed by the Land Department. The action here is not to perpetuate a fraud or to compel the performance of an act which would have that result. It is to compel the performance of a mere ministerial act imposed by statute. If fraud in fact exists, it can be remedied in the courts as Congress has expressly directed.
The judgment is affirmed with costs. Affirmed.