Isaacs v. De Hon, 11 F.2d 943 (9th Cir. 1926)

*944 L. V. Ray, of Seward, Alaska, and James Wickersham, of Juneau, Alaska, for appellant.

Donohoe & Dimond, of Valdez, Alaska (Robert W. Jennings, of San Francisco, Cal., of counsel), for appellees.

Before GILBERT, RUDKIN, and McCAMANT, Circuit Judges.

McCAMANT, Circuit Judge (after stating the facts as above).

The complaint alleges a grubstake agreement of date February 14, 1920, under which plaintiffs were entitled to certain specified interests in any oil claims located by appellant in the Cold Bay oil field on the Alaskan peninsula. It is alleged that, while working under the grubstake agreement, appellant located an oil claim in the name of Mrs. Gordon; that Mrs. Gordon's husband was a party to the grubstake agreement, and that Mrs. Gordon was well advised of its existence and of the rights of plaintiffs therein; that plaintiffs had demanded from her a conveyance of the interests to which they were entitled; and that she had refused to recognize their rights. It is also alleged that the General Land Office had issued a permit to Mrs. Gordon to prospect the claim in question.

Appellant demurred to the complaint on the ground that it is not alleged that plaintiffs are qualified under the Act of February 25, 1920, 41 Stat. 437, Comp. Stat. Supp. 1925, § 4640¼, to hold an oil claim or a prospecting permit. The attack on the complaint, in other words, is based on the omission of an allegation that plaintiffs are citizens of the United States.

If the plaintiffs are aliens, appellant is in no position to take advantage of this circumstance. No one but the sovereign has any right to complain of a trust in real estate in favor of an alien disqualified to hold title. 2 C. J. 1056; Osterman v. Baldwin, 6 Wall. 116, 121-122, 18 L. Ed. 730. Such a trust is valid until, at the instance of the government, the alienage is judicially established. Taylor v. Benham, 5 How. 233, 270, 12 L. Ed. 130; Princeton Mining Co. v. First National Bank, 19 P. 210, 211, 7 Mont. 530,

It is contended that there is a defect of parties, in that the Secretary of the Interior has not been joined as a party defendant. Attention is called to section 12½ of the Regulations of the General Land Office concerning oil and gas permits, promulgated under the authority of section 13 of the Act of February 25, 1920, 41 Stat. 441, Comp. Stat. Supp. 1925, § 4640¼ff. This regulation is as follows:

"Assignment of Permits. Permits, after being awarded, may be assigned to qualified persons or corporations upon first obtaining consent of the Secretary of the Interior. Mere rights to receive a permit are not assignable."

Appellant is in no position to take advantage of this regulation. It may be that plaintiffs will lose the fruits of this litigation by the refusal of the Secretary to approve the assignment of interests in the permit. But appellant is nevertheless held in a court of equity to the obligations he assumed in his grubstake contract.

The Secretary of the Interior would not have been a proper party to this suit. The courts will not interfere by mandamus or injunction with his performance of his duties under the public land laws. Marquez v. Frisbie, 101 U.S. 473, 475, 25 L. Ed. 800. But the courts do have power to enforce contracts with reference to lands while title thereto is held by the government. Marquez v. Frisbie, supra; Pappe v. Trout, 41 P. 397, 399, 3 Okl. 260.

It is argued that the findings are not supported by the evidence. The evidence has not been made a part of the record, and we cannot notice this assignment of error.

It is argued that the findings and decree are out of harmony with the opinion of the District Court. This opinion is not a special finding, and it cannot be used to impeach the decree. Java Cocoanut Oil Co. v. Pajaro Valley Nat. Bank, 300 F. 305; China Press v. Webb (C. C. A.) 7 F.(2d) 581, 582.

We also think the findings support the decree. There are no other assignments of error, and the decree is affirmed.