United States v. Budd

Suit by the United States against David E. Budd and James B. Montgomery, to annul a timber-land patent. Decree dismissing the bill. 43 Fed. Rep. 630. The United States appeals. Affirmed.

STATEMENT BY MR. JUSTICE BREWER.

On July 23, 1882, the defendant David E. Budd applied at the United States land-office at Vancouver, Wash. T., for the purchase, as timber land, of the S. E. 1/4 of section 12, township 9, range 1 W., Willamette meridian. On November 10, 1882, he paid the purchase price, $2.50 per acre, and received the receiver's certificate, and on the 5th day of May, 1883, a patent was duly issued to him. On December 4, 1882, he conveyed the land to the other defendant, James B. Montgomery. His entry and purchase were made under the 'timber and stone' act of June 3, 1878, (20 St. p. 89.) Section 1 of this act provides:

'That surveyed public lands, * * * valuable chiefly for timber, but unfit for cultivation, and which have not been offered at public sale according to law, may be sold, * * * in quantities not exceeding one hundred and sixty acres to any one, * * * at the minimum price of two dollars and fifty cents per acre; and lands valuable chiefly for stone may be sold on the same terms as timber lands.'

Section 2, so far as it is applicable to the case at bar, is as follows:

'Sec. 2. That any person desiring to avail himself of the provisions of this act shall file with the register of the proper district a written statement, in duplicate, one of which is to be transmitted to the general land-office, designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation, and valuable chiefly for its timber or stone; * * * that deponent has made no other application under this act; that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the government of the United States should inure, in whole or in part, to the benefit of any person except himself; which statement must be verified by the oath of the applicant before the register or the receiver of the land-office within the district where the land is situated; and if any person taking such oath shall swear falsely in the premises, he shall be subject to all the pains and penalties of perjury, and shall forfeit the money which he may have paid for said lands, and all right and title to the same; and any grant or conveyance which he way have made, except in the hands of bona fide purchasers, shall be null and void.'

The third section of said act, so far as here applicable, is as follows:

'Sec. 3. That upon the filing of said statement * * * the rigister of the land-office shall post a notice of such application, embracing a description of the land by legal subdivisions, in his office, for a period of sixty days, and shall furnish the applicant a copy of the same for publication, at the expense of such applicant, in a newspaper published nearest the location of the premises for a like period of time; and after the expiration of said sixty days, if no adverse claim shall have been filed, the person desiring to purchase shall furnish to the register of the land-office satisfactory evidence-First, that said notice of the application prepared by the register, as aforesaid, was duly published in a newspaper as herein required; secondly, that the land is of the character contemplated in this act; * * * and, upon payment to the proper officer of the purchase money of said land, together with the fees of the register and the receiver, as provided for in case of mining claims in the twelfth section of the act approved May tenth, eighteen hundred and seventy-two, the applicant may be permitted to enter said tract, and, on the transmission to the general land-office of the papers and testimony in the case, a patent shall issue thereon.'

On March 15, 1886, the government filed this bill in the district court of the second judicial district of Washington Territory, making Budd, the patentee, and Montgomery, his grantee, parties defendant, the purpose of which was to set aside the patent and the title by it conveyed, on the ground that the land was not timber land within the meaning of the act, and that the title to it was obtained wrongfully and fraudulently, and in defiance of the restrictions of the statute. The defendants appeared and answered under oath, denying the charges, proofs were taken, and, on final hearing, a decree was entered in their favor dismissing the bill, (43 Fed. Rep. 630,) from which decree the United States appealed to this court.

Asst. Atty. Gen. Parker, for the United States.

[Argument of Counsel from pages 157-160 intentionally omitted]

Jefferson Chandler, for appellees.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.