In September, 1886, defendant in error commenced an action of ejectment in the circuit court of the state of Florida, for the county of Hillsboro, to recover possession of a tract of land described as follows:
'Lot eight (8) of section nineteen (19), township twenty-nine (29) south, of range nineteen (19) east, and lot seven (7) of section twenty-four (24), in township twenty-nine (29) south, of range eighteen (18) east, containing about forty and nineteen onehundredths (40.19) acres.'
The defendant (now plaintiff in error) filed a plea of not guilty, and also a plea based on equitable grounds. A demurrer to this latter plea was sustained, and thereupon the defendant asked leave to file an amended equitable plea. This application was denied, the court holding that the grounds of defense set up therein were not sufficient. That plea alleged in substance that the plaintiff's title rested on a patent from the United States, issued on a location of Valentine scrip; that such scrip was, by the terms of the statute under which it was issued, to be located only upon unoccupied and unappropriated lands of the United States; that the land in controversy was, at the time of the location of the scrip, a part of Ft. Brooke military reservation, and was also in the actual occupancy of the defendant. The case came on for trial in September, 1889, and the defendant offered evidence in support of all of his defenses, including therein the matters set up in the equitable plea which he had been refused leave to file. This testimony was held insufficient by the court, and the trial resulted in a verdict and judgment for the plaintiff, which judgment was thereafter, and in June, 1894, affirmed by the supreme court of the state (15 South. 780), whereupon the defendant sued out this writ of error.
The Valentine scrip act was passed April 5, 1872 ( 17 Stat. 649) and authorized the location of such scrip on 'the unoccupied and unappropriated public lands of the United States, not mineral, and in tracts not less than the subdivisions provided for in the United States land laws.' The patent to the plaintiff was issued September 30, 1882, and recited that it was upon a location of Valentine scrip, and in his equitable plea defendant averred that the patent was predicated upon an entry at the local land office of the United States at Gainesville, Fla. On August 18, 1856, congress passed an act (11 Stat. 87) containing this provision:
'That all public lands heretofore reserved for military purposes in the state of Florida, which said lans , in the opinion of the secretary of war, are no longer useful or desired for such purposes, or so much thereof as said secretary may designate, shall be, and are hereby, placed under the control of the general land office, to be disposed of and sold in the same manner and under the same regulations as other public lands of the United States: provided, that said lands shall not be so placed under the control of said general land office until said opinion of the secretary of war, giving his consent, communicated to the secretary of the interior in writing, shall be filed and recorded.'
At that time there was in existence what was known as the Ft. Brooke military reservation, near the town of Tampa, Fla. As appears from the testimony offered by the defendant, on July 24, 1860, the secretary of war wrote to the secretary of the interior as follows:
'War Department, July 24th, 1860.
'Sir: Referring to the correspondence between the two departments on the subject, I have the honor to inclose to you a report of the quartermaster general showing that Ft. Brooke is now in readiness to be turned over to the department of the interior, in pursuance of the arrangements made to that effect.
'Very respectfully, your obedient servant,
'John B. Floyd, Secretary of War.
'Hon. J. Thompson, Secretary of the Interior.' The inclosed report from the quartermaster general stated that all the movable property of the government had been sold, and that there was no reason why the military reservation should not be turned over to the interior department. Probably the exigencies of the war, which soon thereafter commenced, prevented any further action by either department, for on April 6, 1870, the following communication was sent by the secretary of war to the secretary of the interior:
'War Department,
'Washington City, April 6, 1870.