(after stating the facts as above). In this cause, from the allegations of the answer and cross-complaint of the defendants the question is presented, by misconstruction of the law as to the fractional part of the lot of land in question having been taken from the defendants, who had acquired the legal right thereto under the sanction of the laws then in force in the Indian Territory, and a patent to same having been issued to said plaintiff in accordance with law, whether or not a court of equity has power to grant relief to the injured party.
In the case of Johnson v. Towsley, 13 Wall. (U.S.) 72, 20 L. Ed. 486, it is said: *Page 205
"The contest arises out of rival claims to the right of preemption of the land in controversy. The register and receiver, after hearing these claims, decided in favor of Towsley, the complainant, and allowed him to enter the land, received his money, and gave him a patent certificate. On appeal to the commissioner of the land office their action was affirmed, but on further appeal to the Secretary of the Interior the action of these officers was reversed on the construction of an act of Congress, in which the Secretary differed from them, and on that decision the patent was issued to Johnson. * * * On the other hand, there has always existed in courts of equity the power in certain classes of cases to inquire into and correct mistakes, injustice, and wrong in both judicial and executive action, however solemn the form which the result of that action may assume, when it invades private rights; and by virtue of this power the final judgments of courts of law have been annulled or modified, and patents and other important instruments issuing from the crown, or other executive branch of the government, have been corrected or declared void, or other relief granted. No reason is perceived why the action of the land office should constitute an exception to this principle. In dealing with the public domain under the system of laws enacted by Congress for their management and sale, that tribunal decides upon private rights of great value, and very often, from the nature of its functions, this is by a proceeding essentially ex parte, and peculiarly liable to the influence of frauds, false swearing, and mistakes. * * * And so, if for any other reason recognized by courts of equity as a ground of interference in such cases the legal title has passed from the United States to one party, when, in equity and in good conscience, and by the laws which Congress has made on the subject, it ought to go to another, 'a court of equity will', in the language of this court in the case of Stark v. Starrs, 6 Wall. (U.S.) 402, 18 L. Ed. 925, just cited, 'convert him into trustee of the true owner, and compel him to convey the legal title.' In numerous cases this has been announced to be the settled doctrine of this court in reference to the action of the land officers. Lytle v. Ark., 22 How. (U.S.) 193, 16 L. Ed. 306; Garland v. Wynn, 20 How. (U.S.) 8, 15 L. Ed. 802; Lindsey v. Hawes, 2 Black (U.S.) 559, 17 L. Ed. 268.
* * * Undoubtedly there has been in all of them some special ground for the exercise of the equitable jurisdiction, for *Page 206 this court does not and never has asserted that all the matters passed upon by the land office are open to review in the courts. On the contrary, it is fully conceded that when those officers decide controverted questions of fact, in the absence of fraud, or imposition or mistake, their decision on these questions is final, except as they may be reversed on appeal in the department. But we are not prepared to concede that when in the application of the facts as found by them they, by misconstruction of the law, take from a party that to which he has acquired a legal right under the sanction of those laws, the courts are without power to give any relief. And this is precisely what this court decided in the case of Minnesota v.Bachelder, 1 Wall. (U.S.) 109, 17 L. Ed. 551, and in the case ofSilver v. Ladd, 7 Wall. (U.S.) 219, 19 L. Ed. 138."
In this cause, by the demurrer it is admitted that the defendants below, the owners of the improvements on said fractional lot, under and by virtue of an act of Congress approved March 1, 1901, and ratified by the Muskogee (Creek) Nation May 25, 1901, otherwise known as the "Supplemental Creek Agreement," acquired a legal right to said fractional part of said lot, and that it was the duty of the town-site commission under said act to schedule the same to said defendants, and a patent thereto should have been issued in favor of said defendants. By the demurrer the plaintiff further admitted that up to the time the schedule was made by the town-site commission she had no interest or right whatever to said fraction of said lot, but that said defendants, in accordance with law, were the owners of the improvement and entitled to have said lots scheduled to them, and that through misconstruction of law as applied to the facts the same was scheduled to the plaintiff, and that they have neither been guilty of laches nor have any adequate remedy at law. By said demurrer plaintiff admits all of these facts to be true. The court below should have overruled same, and transferred said cause to the equity side of the docket. Minn. v. Bachelder, 1 Wall. (U.S.) 109, 17 L. Ed. 551; Silver v. Ladd, 7 Wall. (U.S.) 219, 19 L. Ed. 138; Moore v. Robins, 96 U.S. 530, 24 L. Ed. 849;Rector v. *Page 207 Gibbons, 111 U.S. 276, 28 L. Ed. 427; Johnson v. Towsley, supra;Lytle v. Wynn, supra; Lindsey v. Hawes, supra; Twine v. Carey,2 Okla. 250, 37 P. 1096; Wilborne v. Baldwin, 5 Okla. 265,47 P. 1045; Thornton v. Peery, 7 Okla. 442, 54 P. 649; Painev. Foster, 9 Okla. 213, 53 P. 109; Mansf. Dig. sections 4917, 4918, 4929, 5106; Ivey v. Drake, 36 Ark. 228; Trulock v.Taylor, 26 Ark. 54.
Let this cause be reversed, with instructions to the lower court to proceed in accordance with the opinion of this court.
All the Justices concur.