UNITED STATES v. DES MOINES VALLEY R. CO. et al., 84 F. 40

THAYER, Circuit Judge, after stating the case as aboye, delivered the opinion of the court. The circuit court reached the conclusion — in which view we fully concur — that this action was brought for the sole purpose of quieting the title to a specific tract of land, which is claimed, on one hand, by the defendant Fairchild by virtue of his homestead entry, and, on the other hand, by the defendant West by virtue of the certification of the land to the state of Iowa on June 14,1866, and the patent therefor which was subsequently granted by the state to the Des Moines Valley Railroad Company.

It is clear, we think, that the government has no interest in the land to be either conserved or protected, and that it has simply permitted Fairchild to use its name as the nominal plaintiff, to the end that his title under the homestead laws may be established at the expense of the title which is asserted by West.

The bill does not attempt to conceal the fact that the United States has no pecuniary interest in the controversy, and that its real purpose is to champion the cause of Fairchild, rather than to assert a title of its own, since it is alleged in the bill that the certificate in favor of the state of Iowa, and the patent to the Des Moines Valley Railroad Company, and the -various mesne conveyances under which West claims,,' all of which it seeeks to have set aside and annulled, “are a cloud upon the title of said Fairchild, and have prevented, and do prevent, the United States from giving to said Fairchild that full and indisputable title which is his right.” Moreover, the act of March 8,1871, above quoted in the statement, was passed and approved some years after the decision in Wolcott v.

Des Moines Co., 5 Wall. 681, had been promulgated, wherein it was decided, in effect, that the secretary of the interior had erroneously executed the certificate of June 14, 1866, because the railroad grant of May 15, 1856 (11 Stat. 9, c. 28), did not dispose of any of the lands which fell within the extended river grant of July 12, 1862, and therefore did not create a deficiency in the latter grant such as the secretary of the interior was authorized to make good by setting apart other lands in their place.

In other words, congress, with full knowledge of the erroneous action of the land department in the year 1866, saw fit, in the year 1871, to ratify and confirm the title of the state to such lands as it had acquired by reason of such erroneous action of the officers of the land department.

It seems obvious, therefore, that the United States, by the act of March 3, 1871, voluntarily relinquished whatever right or title to the land in controversy it then had; that it did so with full knowledge of its rights; and that the sole purpose of that act was to cure an existing defect in the state’s title, and to estop the United States from ever after taking advantage of such defect for its own benefit.

It is argued, however, that by reason of the proviso contained in the act of March 3, 1871, the government reserved to itself the right to challenge the title of the state of Iowa, and those claiming under it, to the particular tract of land now in controversy, because Fairchild entered the land as a homestead on October 3,1866. We cannot assent to this proposition.

We fully concur in the view of the learned trial judge that the proviso in question did not reserve any interest in the land, so far as the United States was concerned, but was simply intended to leave homestead, pre-emption, and swamp-land claimants unaffected by the government’s relinquishment of its own rights.

By the act in question congress declared, in effect, that the United States would not thereafter, for its own benefit, question the title to the lands which had been erroneously certified to the state; that the state should hold the lands free from all claims on the part of the government, but subject to such legal rights, if any, as had at the time become vested in any homestead, pre-emption, or swamp-land claimant.

It results from these views that, if the present action can be said to have been properly instituted in the name of the United States, as to which question we express no opinion, the action must, in any event, be regarded as one which is brought for the sole benefit of Fairchild, and not for the purpose of redressing any wrong which has been done to the United States, or of recovering any property in which it now retains an interest.

Such being the attitude of the United States with respect to the litigation, the case falls within the rule, which has frequently been applied, that, where the government lends its name as a plaintiff in a suit, not to enforce any public right, or to protect any public interest, title, or property, but merely to enable one private person to maintain a suit against another in its name, a court of equity will hold he nominal plaintiff, even though it is the United States, subject to the same defenses which exist and might be pleaded as against the real party in interest if he were suing in his own name. U. S. v.

Beebe, 127 U. S. 338, 347, 8 Sup. Ct. 1083; U. S. v. Des Moines Nav. & Ry. Co., 142 U. S. 510, 539, 12 Sup. Ct. 308; Curtner v. U. S., 149 U. S. 662, 672, 13 Sup. Ct. 985, 1041; Union Pac. Ry. Co. v. U. S., 32 U. S. App. 311, 319, 15 C. C. A. 123, and 67 Fed. 975; U. S. v. San Jacinto Tin Co., 125 U. S. 273, 8 Sup. Ct. 850.

In the present case the record shows, we think, that, if Fairchild was attempting to prosecute a suit against West in his own name, he would he effectually Tbarred of his right to the property in controversy by two adjudications which appear to have been made by the district court of Dickinson county, Iowa, — the one on November 16, 1876, and the other on October ,2, 1885.

The first of these adjudications was a decree in favor of West’s grantors in a suit brought by them to -quiet the title to the land in controversy against the claim of Fairchild and wife under the homestead entry of October 3, 1866; and the second was a judgment in favor of West in an ejectment suit brought by him against Fairchild and wife, after West had acquired the title to the property, and had been ousted from the possession thereof by Fair-child.

It is suggested in behalf of the appellant that these adjudications ought not.to be regarded as depriving Fairchild of his right to the land, because his title under the homestead entry, when these adjudications were made, was incomplete, and for that reason could not be asserted as a defense.

The record shows, however, that his title under the homestead entry was asserted as a defense in each of said actions, and that, before either action was brought, to wit, on ■October 25, 1871, he made his final proof as a homesteader, and obtained a receiver’s receipt entitling him to a patent; and that, before either action was brought, a patent for the land in controversy was in fact issued to Fairchild, which patent, however, was afterwards, in some manner which is not disclosed by the evidence, obtained by the officers of the land department, and marked “Canceled.” It is obvious, therefore, that when the suits in the district court of Dickinson county, Iowa, were brought against Fairchild, his equitable title to the land in controversy under the homestead laws of the United States was as perfect as it could ever become, since no act remained to be done by him which would strengthen his right to a patent.

Moreover, under the laws of Iowa, a suit to quiet title such as was brought against Fairchild in 1876 was then, as now, an equitable proceeding, and in 1885 a defendant in an action of ejectment was then, as now, entitled to plead any defense thereto, whether it was of a legal or equitable character. McClain’s Code Iowa, §§ 3861, 4503, 4506; Rosierz v. Van Dam, 16 Iowa, 175; Van Orman v. Spafford, Id. 186; Kramer v. Conger, Id. 434; Shawhan v. Long, 26 Iowa, 488.

In both of said actions Fairchild availed himself of these privileges by pleading the same state of facts constituting an equitable, if not a full legal, defense to the suits (Simmons v. Wagner, 101 U. S. 260; Nycum v. McAllister, 33 Iowa, 374), upon which the United States now relies to annul the title of the defendant West, and in both of said actions a judgment adverse to the claim of Fairchild was rendered.

Inasmuch, then, as the government sues for the sole benefit of Fairchild, and for the professed purpose of reinvesting him with a title which he has lost, we are of opinion that, whether the present action be regarded as brought under the act of March 3,1887 (24 Stat. 556, c. 376), or as brought in pursuance of its general right to sue, the government should be held estopped by the previous adjudications against the real party in interest in the state court.

The subject-matter and the issue to be tried being the same in this proceeding as in the former actions, the losing party on the former trials ought not to be permitted to renew the controversy in the name of a merely nominal plaintiff, and thereby avoid the effect of the former adjudications. Southern Minnesota Railway Extension Co. v. St. Paul & S. C. R. Co., 12 U. S. App. 320, 325, 5 C. C. A. 249, and 55 Fed. 690. This doctrine was applied by this court in the case of Union Pac. Ry. Co. v. U. S., 32 U. S. App. 311, 319, 15 C. C.

A. 123, and 67 Fed. 975, which was a suit brought by the United States under the act of March 3, 1887, wherein we held that the United States was bound by an estoppel which might have been invoiced against the real party in interest if the suit had been brought in his name, because it appeared that the United States had no substantial interest in the controversy, and was merely a nominal plaintiff. On the argument of the ca.se some reliance was placed by counsel for the appellant on the decision of this court in the case of U. S. v. Winona & St. P. R. Co., 32 U. S. App. 306, 15 C. C. A. 117, and 67 Fed. 969.

It was contended, in substance, as we understand, that the decision in that case lends some support to the view tha,t the United States, in the present action, is not affected by the previous adjudications in the state court of Iowa against (he defendant Fair-child. With reference to such contention, it may be said that in the case last (died this court held (hat the bill was properly filed by the United States under the act of March 3, 1887.

Indeed, no controversy arose, or could well have arisen, in that case, touching that issue, because the case was one in which the executive department of the government had erroneously certified certain lauds to the state of Minnesota for the benefit of a railroad company, and there was no pretense that the legislative branch of the government had ever confirmed or ratified such erroneous action on the part of the land department. The case was one which was clearly within the provisions of the act of March ?», 1887.

We were accordingly of the opinion in that case, which we still entertain, that the United States had not definitely parted with its right to the land in dispute, but had a substantial interest in the controversy, which very properly exempted it in that case from certain defenses which the railroad company might possibly have interposed as against the original pre-emption claimant.

In the present: case, however, as has already been shown, congress did ratify and confirm the erroneous action of the land department, doing so with full knowledge of all the facts, and by so doing it placed the government in such a position that it can no longer claim that it has any right to the premises in dispute, or any pecuniary interest in the pending action. It sues professedly for the benefit of a private individual, having been placed by the act of congress aforesaid in such an attitude that it cannot assert any right to the property in dispute on behalf of the public.

We think, therefore', that the cases are clearly distinguishable; that our former ruling is in harmony with the views heretofore expressed; and that, as applied to the case in hand, our former decision does not support (he contention that the United States is exempt in the present action from such defenses as res judicata, limitations, and laches, although such defenses could be successfully pleaded as against a person for whose benefit it sues.

Without considering some other questions which were decided bj the trial court,- it is sufficient to say that, for the reasons already stated, we are satisfied that the bill of complaint was properly' dismissed, and the decree to that effect is accordingly affirmed.