Appeal from the Circuit Court of the United States for the Northern Division of the District of Idaho.

Suit in equity by Douglas W. Bailey against Arthur Sanders. Decree for defendant, and complainant appeals.

This action was brought on the 26th day of January, 1907, in the Circuit, Court of ihe United States for the Northern District of Idaho, by Douglas W. Bailey, appellant, a citizen of the state of Oregon, against Arthur Sanders, appellee, a citizen of the state of Idaho, to quiet and'confirm the complainant in his alleged right to certain public land of the United States within the limits of -the ceded portion of the Nez Perce Indian reservation in Idaho county, state of Idaho. The subdivisions described com]irise 160 acres of public land.

The hill prayed that ihe complainant be decreed to be entiiled to the -possession thereof; that-the defendant be enjoined to desist from claiming any title to or interest in said real property, and from committing any waste thereon, and from interfering with complainant’s possession of said premises; that the defendant be required to make and render a full and complete account to complainant for the value of the rents, issues, and profits of said premises since April 18, 1902'; and that a judgment be rendered in favor of complainant and against defendant for the amount found due.

The bill of complaint alleged that on the 1st day of May, 1899, the land in controversy was unoccupied and unimproved vacant public land of the United States, situated within the ceded portion of the Nez Perce reservation in Idaho county, state of Idaho, and as such was subject to settlement and entry under the homestead laws of the United States; that on May 1, 1899, one AVilliam W. Hately made application at the United States Land Office, at Lewiston, Idaho, to enter said land as a homestead; that he thereupon made before the register and receiver of said Land Office the usual and customary application required under the provision of section 2290 of the Revised Statutes of the United States (U. S. Comp. St 1901, p. 1389), and paid the fees and commissions therein prescribed, and received his certificate therefor; that Hately thereupon entered upon the possession of said land and constructed a dwelling house thereon, and began to reside, and continued to reside, thereon with his family and to improve and cultivate said land until about the 24th day of April, 1901; that on the 24th day of January, 1901, desiring to avail himself of the benefits, privileges, and rights under the provision of section 2301 of the Revised Statutes of the United States, as amended by Act Cong. March 3, 1891, c. 561. § 6, 26 Stat. 1098 (U. S. Comp. St. 1901, p. 1406), and Act May 17, 1900, e. 479, 31 Stat. 179 (U. S. Comp. St. 1901, p. 1618), he filed in the Land Office of the United States in Lewiston, Idaho, his notice of intention and desire to make final proof of his residence upon and improvement and cultivation of said tract of land and pay the minimum price therefor as prescribed in said act of March 3, 1891, and said act of May 17, 1900; that on the 9th day of March, 1901, said Hately appeared before the United States commissioner and submitted his proof of such residence upon and improvement and cultivation of said tract of land, and paid to the register and receiver of said Land Office “the sum asked” for said land under the said laws of the United States, to wit, the sum of $200 ($1.25 per acre for 160' acres), and in pursuance thereof said register and receiver on the 29th day of March, 1901, issued to said Hately their final certificate thereof and receipt therefor; that on the 2d day of April, 1901, said Hately and his wife made, executed, and delivered to one R. C. Beach their warranty deed, whereby, in consideration of the sum of $800 to them paid by said Beach, they, the said Hately and wife, granted, bargained, ■ sold, and conveyed unto the said Beach the said land; that in April, 1901, the Commissioner of the General Land Office suspended said entry of Hately for the reason that under the act of Congress of January 26, 1901, providing for commuting homestead entries within the limits of ceded Indian reservations, said Hately was required to pay. for his land the sum of $3.75 per acre, or the additional sum of $406; that said Beach, as the grantee of Hately, caused an appeal to be taken from said order, and upon said appeal the Secretary of the Interior affirmed said order of the commissioner, and thereafter on October 31, 1902, said Beach, as the grantee of Hately, made a tender of said sum of money to the register and receiver of the Land Office at Lewiston, Idaho, and said register and receiver refused to accept the same; that prior thereto, and on January 30, 1902, Hately made a relinquishment of said land to the United States, whereby he sought and attempted to restore said land to the public domain of the United States, and thereupon the defendant, Arthur Sanders, sought to enter 'the land as a homestead and presented his application and affidavit therefor with the relinquishment to the said land on the 31st day of January, 1902. It appears that on June 10, 1903, Beach conveyed his interest in the land to the complainant herein, who had appeared as attorney for Beach in the proceedings before the Land Office.

The bill of complaint recites the proceedings in the General Land Office in the matter of the application of Arthur Sanders to enter the land formerly embraced in the Hately homestead entry, wherein R. O. Beach was the transferee. It appears from the complaint, and such recitals and the exhibits attached to the bill of complaint and made a part thereof, that Hately moved from said land in April, 1901, and took up his residence in Moscow, Idaho; that on November 7. 1901, lie was officially notified by the Land Department to make an additional payment of $406 in payment-for the land, which he refused to do; that ihe defendant, Sanders, moved upon the land -on the ISth day of April, 1902; that Beach was a dry goods merchant residing and doing business in Lewiston, Idaho, about 70 miles distant from the land in controversy; that Beac-h learned soon after the issuance of the final certificate by the register and receiver on March 9, 1901, that the price of the land was $3.75 per acre, but he failed to bring his claim to the attention of the officers of the Land Department until after Ilately had filed his relinquishment in the Land Ofiice on the 30th day of January, 1902.

There was a hearing before the register and receiver of the Land Ofiice at Lewiston ordered by the Commissioner of the General Land Office “in order that all the facts in the case might be brought out.” The hearing resulted in a recommendation by the register and receiver to the Commissioner of the General Land Office that Ilately’s homestead entry and cash certificate be canceled, and that Arthur Sanders be allowed to file a homestead entry to the land. This recommendation was approved, and the Commissioner of the General Land Office ordered “that the homestead entry and the commuted cash entry will be canceled on his relinquishment, and Sanders will be allowed to enter the land.” Beach appealed from this order to the Secretary of the Interior. In the opinion of the Secretary of the Interior passing upon this appeal. the evidence before the Land Ofiice is reviewed, and the Secretary of the Interior found that:

“Beach has never paid Hately any consideration, has never assumed control of the land, and has expressly disclaimed any interest therein, both to the local officers and to the original entryman who executed the alleged conveyance to him.

“On the other hand, it appears from the evidence: (1) That in January, .1901. two months before the commutation proof was offered, Bailey induced Hately to enter into a verbal agreement, of which a memorandum was written and explained to him by Bailey, to make commutation proof in the interest of some other person, and make, the cash payment with money furnished by Bailey, and thereupon to execute a deed to said land as directed by Bailey and received $600 as the consideration therefor; (2) that in pursuance of this agreement Bailey had Hately submit his proof on March 9, 1901, which Bailey obtained from the officer taking the same, and a few days later delivered to the local officers, and that, after an interval of two weeks, Bailey obtained the money from Beach, and on March 29, 1901, made the cash payment then required ; (3) that on April 2, 1901. Bailey had Hately execute a deed to the said land according to their said agreement, naming Beach as the grantee therein, presumably to secure the latter for $200 advanced; (4) that, in payment of the consideration agreed upon in January, Bailey gave Hately said sight draft’ on Beach; (5) that Bailey for one year and nearly three months held and then filed for record the said deed, and four months later made said tender to the local officers, and three months thereafter made said tender to Hately.”

The Bailey here referred to is the complainant herein.

It was further found that:

“The evidence compels the conclusion that Beach is and was not the real party in interest, and that the sale of this land by Hately was' agreed upon in advance of final proof thereon, and that it was commuted according to that agreement, Hately delivering the deed, and accepting, and presenting for payment, the said sight draft. The entering into such forbidden agreement ended the right of the entryman to make proof and payment and rendered him incompetent to further proceed with his entry. He could not thereafter submit a proof upon which he could convey a valid title and could not take oath of non-alienation required with said additional payments. It ended the contract between Hately and the United States, initiated by his filing and entry, and upon which alone it could he maintained. The land was from that time forward open to settlement and entry by the first legal applicant, although it yet remained to cancel his entry of record whenever the fact of such illegal contract should become known and established.

“It followed that Beach took nothing by said deed, Hately has forfeited his claim, and that Sanders has the right to make entry for the land.”

To this bill of complaint a demurrer was interposed upon the grounds, among ■others: (1) That it appears by the plaintiff’s own showing by the said bill that he is not entitled to the relief prayed for by said bill' against the defendant; (2) that it appears from said bill of complaint that the court 1ms no jurisdiction to hear or determine the action. The court sustained the demurrer and afterwards dismissed the bill of complaint.