Opinion of the Court. to issue to him a patent therefor. If from inadvertence or mistake as to their rights, or other cause, they afterwards conveyed that title to another, the grantee with notice took it subject to the equitable claim of the first purchaser, who could compel its transfer to him. In all such cases a court of equity will convert the second purchaser into a trustee of the true owner and compel him to convey the legal title. Lindsey v. Hawes, 2 Black, 554; Stark v. Starrs, 6 Wall. 402, 419. The power of supervision possessed by the Commissioner of the General Land Office over the acts of the register and receiver of the local land offices in the disposition of the public lands, undoubtedly authorizes him to correct and annul entries of land allowed by them, where the lands are not subject to entry, or the parties do not possess the qualifications required, or have previously entered all that the law permits. The exercise of this power is necessary to the due administration of the land department. If an investigation of the validity of such entries were required in the courts of law before they could be cancelled, the necessary delays attending the examination would greatly impair, if not destroy, the efficiency of the department. But the power of supervision and correction is not an unlimited or an arbitrary power. It can be exerted only when the entry was made upon false testimony, or without authority of law. It cannot be exercised so as to deprive any person of land lawfully entered and paid for. By such entry and payment the purchaser secures a vested interest in the property and a right to a patent therefor, and can no more be deprived of it by order of the Commissioner than he can be deprived by such order of any other lawfully acquired property. Any attempted deprivation in that way of such interest will be corrected whenever the matter is presented so that the judiciary can act upon it. In Lindsey v. Hawes we have a noted instance in which the court inquired into the facts of a disputed entry of public lands, and gave effect to a lawful entry, which had been set aside, and the certificate issued cancelled, by order of the Commissioner of the General Land Office. In that case it appeared that Lindsey had, in 1839, applied to the register Opinion of the Court. and receiver of the land office at Galena to purchase land, claiming the right of preëmption under the act of 1838, by reason of cultivation and actual residence thereon, and having established his claim to the satisfaction of those officers, he received from them, in June, 1839, the proper certificate, stating the receipt of the purchase money, and that on its presentation to the Commissioner of the General Land Office he would be entitled to a patent. Subsequently, in 1845, the Commissioner set aside this entry, and ordered the certificate to be cancelled, on the ground that a mistake had been made in the original survey of the land, and that by a new survey ordered in 1844, it was ascertained, as he supposed, that the house in which Lindsey resided, when he made his claim in 1839, was not on the land for which he received his certificate. After this, one Hawes claimed a preëmption right to the same land; and the Commissioner directed the register and receiver to hear proof of his right, and to adjudicate upon it. They accordingly heard his proof, and gave him a certificate, upon which a patent was afterwards issued to him. Lindsey died in the same year in which he made his entry; and his heirs, who had no notice of the new survey made five years afterwards, or of the proceedings by which Hawes established his claim before the register and receiver, brought suit against Hawes and grantees from him, to compel a transfer by them of the title obtained by the patent. It appeared that the residence of Lindsey was on the line which, according to the new survey, divided the quarter section he entered from an adjoining quarter section; so that in one sense it may be said that he resided on both quarter sections. The court held that the government was bound by the original survey; that Lindsey's residence was sufficiently on the section which he claimed; that the patent certificate was rightfully issued to him; that the act of the Commissioner in setting it aside was illegal, and did not destroy the right thus vested; that the land was not, therefore, subject to entry by Hawes; that the patent obtained by him was wrongfully and illegally issued to him; and that the heirs of Lindsey were entitled to a conveyance of the legal title from him and his codefendants. Opinion of the Court. That case covers the present one in all essential particulars. The interest of Davidson in the tract, which embraces the premises in controversy, acquired by him by his entry, was not lost or impaired by the order directing its cancellation. That order was illegally made, and those claiming under him can stand upon the original entry and are not obliged to invoke the subsequent reinstatement of the entry by the Commissioner. As that entry, with the payment of the purchase money, gave Davidson a right to a patent from the United States, his heirs are entitled to a conveyance of the legal title from those holding under the patent wrongfully issued to Puffer. Whether Davidson or his successors would have had a right to surrender his entry, upon learning that one of the tracts entered had been previously granted to the State, and claim a return of the purchase money, is a question that does not arise here. It is sufficient to say that, until such objection was raised by them, it did not lie with the land department to oppose the completion of his title to the tract which was subject to entry. The judgment entered in the court below would have been in better form had it directed a conveyance to the heirs of Jacob Kessel, subject to the life estate of the defendant, from those holding under the patent to Puffer, of the legal title which he had acquired to that portion which was subject to entry. The heirs would thus avoid the necessity of applying to the land department for a patent, which it might refuse to issue, until the patent already issued had been cancelled by judicial proceedings. The Supreme Court of the State makes some comment upon the form of the judgment, but observes that there is nothing in it of which the plaintiff can complain. He cannot be prejudiced by the cancellation of the patent, because the legal title vested in him by that instrument must inure to those who have the superior right to it. The judgment is, therefore, Affirmed. Statement of the Case. HUNT v. BLACKBURN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS. No. 16. Submitted November 1, 1888. - Decided November 26, 1888. At common law, when lands are granted to husband and wife as tenants in common, they hold by moieties as other distinct and individual persons do. The privilege of secrecy upon communications between a client and an attorney-at-law is a privilege of the client alone; and if he voluntarily waives it, it cannot be insisted upon to close the mouth of the attorney. The Supreme Court of Arkansas and the Circuit Court of Desha County having both adjudged that the appellee and her husband held the tract of land which is the subject of controversy in moieties, and that those through whom the appellant claims became the owners in fee, successively, of the husband's undivided half, these decrees, standing unreversed, are binding adjudications in favor of the complainant's title, and justified him in advancing money upon the strength of it. The evidence fails to satisfy the court that there was any deceit practised towards the appellee, or any misapprehension on her part of the transactions recited in the record, or any advice given to her in fraud, or in mistake of fact or law. THE Submission of the motion to reinstate this case after its dismissal at October term, 1887, for want of jurisdiction is reported 127 U. S. 774. On the 22d October, 1888, (at the present term,) the order of dismissal made at the last term was set aside, and the case was restored to the docket, and was, on the 1st of November, submitted. The case was stated by the court as follows: Hunt filed his bill in equity in the District Court for the Eastern District of Arkansas, on the 25th of June, 1881, against Sallie S. Blackburn, Charles B. Blackburn, and W. P. Smith, claiming as a purchaser for value, with the knowledge and assent of Sallie S. Blackburn, of an undivided half of a plantation in Desha County Arkansas, of which the defendant, Sallie S. Blackburn, owned the other half; and deraigning title by sundry mesne conveyances from one Shepard to W. A. Buck, whose wife said Sallie S. then was, by Buck and wife to Drake, Drake to Winfrey, who, as Hunt alleged, pur Statement of the Case. chased for value with Mrs. Buck's knowledge and assent, Winfrey's assignee to Weatherford, and Weatherford to himself; setting up certain decrees hereinafter mentioned, and praying, after averments appropriate to such relief, that his title be quieted, and for partition. Defendant Sallie S. Blackburn answered April 25, 1883, asserting sole ownership of the lands under a deed from Shepard to W. A. Buck, her then husband and herself, and charging, in respect to the decrees upon the title, that she was misled by her attorney and confidential adviser, Weatherford, as to her rights, and was not estopped thereby or by any conduct of hers, in faith of which either Winfrey or Hunt acted in purchasing. The cause was heard and the bill dismissed March 10th, 1884, and from that decree this appeal was prosecuted. The case made upon the pleadings and evidence appeared to be as follows: Sallie S. Blackburn, then Sallie S. Buck, wife of Walter A. Buck, on the 24th day of April, 1868, purchased of one Shepard an undivided half of 973 acres of land in Desha County, Arkansas, partially improved, and took a title bond stipulating for a mode of division to be made between her and her vendor, as soon as practicable, so that each should have half the improved land, and for a conveyance in fee to Mrs. Buck when the division was made. Mrs. Buck was put in possession of an undivided half in accordance with the agreement. In June, 1868, W. A. Buck, the husband, purchased the other half of Shepard, who gave him a written memorandum evidencing the purchase. Buck then, in January, 1869, sold his half to J. S. Drake, conveying the same to him on the second day of that month by warranty deed, in which his wife, Sallie S., joined, her acknowledgment being that for relinquishment of dower. The evidence tends to show that during 1868 Shepard executed and delivered a deed of the property to Mr. and Mrs. Buck, so drawn as to recognize their separate interests, which deed was not recorded, but in January, 1869, when Buck sold to Drake, the latter's then attorney was not satisfied and drew another deed of the entire property for Shepard to execute, VOL. CXXVIII-30 |