United States v. Minor

This is an appeal from a decree of the circuit court for the district of California, dismissing the bill of the United States on demurrer. The object of the bill was to set aside and annul a patent issued by the United States to Minor, on January 5, 1876, for the N. W. 1/4 of section 18, township 6 N., range 2 E. of the Humboldt meridian. The bill as originally filed made, in substance, the following allegations:

That said Minor, on the twenty-third day of October, 1874, filed the declaratory statement in the land-office necessary to give him a right of preemption to the land, alleging that he had made a settlement on it March 20 of that year; and on June 20, 1875, he made the usual affidavit that he had so settled on the land in March of the previous year; that he had improved it, built a house on it, and continued to reside on it from the time of said settlement, and had cultivated about one acre of it. He also made affidavit, as the law required, that he had not so settled upon and improved the land with any agreement or contract with any person by which the title he might acquire would inure to the benefit of the latter. He also made oath that he was not the owner of 320 acres of land in any state or territory in the United States. These affidavits being received by the register and receiver as true, he paid the money necessary to perfect his right, received of them the usual certificate, called a patent certificate, on which there was issued to him at the general land-office in due time the patent which is now assailed.

The bill then charges that all these statements, made under oath before the land-officers, were false and fraudulent; that defendant had never made the settlement nor cultivation nor improvements mentioned; that he had never resided on the land, but during all the time had lived and had his home in a village about 12 miles distant; and that he had not made these proofs of settlement to appropriate the land to his own use, but with intent to sell the same to some person unknown to the plaintiff. It is also charged that defendant produced, in corroboration of his own statement, the affidavit of a witness, one Joseph Ohuitt, who testified to the settlement, improvement, and residence of defendant, all of which was false and fraudulent. It is then alleged that by these false affidavits the land-officers, supposing them to be true, were deceived and misled into allowing said pre-emption claim and issuing said patent, to the great injury of the United States.

A demurrer to this bill having been sustained, plaintiff was allowed to file an amendment, by which it is set out that one Richard Spence entered upon the W. 1/2 of the quarter section in question on the first day of April, 1872, with the intention of pre-empting the same as soon as the lands were surveyed and open to pre-emption, and that on the twenty-second day of October, 1874, the approved plat of said surveys was duly filed in the land-office at Humboldt, and on the third day of December thereafter Spence made his declaratory statement for the W. 1/2 of that quarter section and the W. 1/2 of the S. W. 1/4 of the same section. It is further alleged that Spence, having complied with the terms authorizing his pre-emption by actual residence, improvement, and cultivation, and having commuted his pre-emption right for a homestead right, and perfected his cultivation and improvement by a fiveyears' residence, and paid the fees of the officers, made application on the fifth day of April, 1880, for his patent, to which he was legally entitled, but it was found that Minor's patent covered half his claim, to-wit, the W. 1/2 of the N. W. 1/4 of the section.

The title having passed from the United States to Minor for the entire quarter section, no patent could be issued to Spence, who was, and still is, equitably entitled to a part of it. To this bill, as amended, the circuit court again sustained a demurrer and dismissed it, and from that decree this appeal is taken. The circuit and district judges have certified a division of opinion on eight propositions of law, which they believe to arise out of this demurrer, as follows: (1) Whether the frauds and perjury alleged in the bill as the equitable grounds for vacating the patent in question are frauds extrinsic and collateral to the matter tried and determined in the land-office upon which the patent issued, and constitute such frauds as entitle the complainant to relief in a court of equity. (2) Whether perjury and false testimony in a proceeding before the land-office, such as alleged in the said amended bill, by means of which a patent to a portion of the public land is fraudulently and wrongfully secured, is such a fraud as will require a court of equity to vacate the patent on that ground alone. (3) Whether the decision and determination of the questions involved on false and perjured testimony, as set forth in the said amended bill, and the issue of a patent thereon, are not conclusive as against the United States on a bill filed to vacate the patent so issued. (4) When the United States files a bill to vacate a patent on the ground that it was fraudu lently obtained upon false testimony, as alleged in said amended bill, whether it is necessary to offer in the bill to return the purchase money paid for the land by the patentee. (5) Whether a court of equity will enforce the penalties and forfeitures imposed by section 2262 of the Revised Statutes of the United States for obtaining a patent to land upon false affidavits. (6) Whether the remedy at law provided by said section, and an indictment for perjury, are not the only remedies for the wrong alleged in the amended bill. (7) The bill of complaint, having been originally filed in this case on June 19, 1883, more than seven years and five months after the issue of the patent, whether the claim to vacate the patent on the ground of fraud is stale, and whether the bill ought to be dismissed on that ground. (8) Whether he demurrer to the said amended bill should be sustained.

''Sol. Gen. Phillips'', for appellant.

L. D. Latimer, for appellee.

[Argument of Counsel from page 237 intentionally omitted]

MILLER, J.