US SUPREME COURT DECISIONS

When, in a court of equity, it is proposed to set aside, annul, or correct a written instrument for fraud or mistake in the execution of the instrument itself, the testimony on which this is done must be clear, unequivocal and convincing, and not a bare preponderance of evidence, and this rule, well established in private litigations, has additional force when the object of the suit is to annul a patent issued by the United States.

The Maxwell Land Grant Case, 121 U. S. 325, is affirmed, and is quoted from and applied.

When the defendant in a suit in equity appears and answers under oath, denying specifically the frauds charged, no presumptions arise against him if he fails to offer himself as a witness as to the alleged frauds, inasmuch as the plaintiff can call him and cross-examine him. chanrobles.com-red

Page 144 U. S. 155

"Public lands . . . valuable chiefly for timber, but unfit for cultivation," within the meaning of the Timber and Stone Act of June 3, 1878, 20 Stat. 89, c. 151, include lands covered with timber but which may be made fit for cultivation by removing the timber and working the lands.

B. entered a quarter section of timber land in Washington under the Act of June 3, 1878, 20 Stat. 89, c. 151, and after receiving a patent for it, transferred it to M. M. purchased quite a number of lots of timber lands in that vicinity, the title to 21 of which was obtained from the government within a year by various parties, but with the same two witnesses in each case, the deeds to M. reciting only a nominal consideration. These purchases were made shortly after, or in some cases immediately before, the payment to the government. B. and M. were both residents in Portland, Oregon. One of the two witnesses to the application was examining the lands in that vicinity and reporting to M.

Held:

(1) That all that the Act of June 3, 1878, denounces is a prior agreement by which the patentee acts for another in the purchase.

(2) That M. might rightfully go or send into that vicinity, and make known generally or to individuals a willingness to buy timber land at a price in excess of that which it would cost to obtain it from the government, and that a person knowing of that offer might rightfully go to the land office and purchase a timber lot from the government and transfer it to M. for the stated excess without violating the Act of June 3, 1878.

The Court stated the case as follows:

On July 23, 1882, the defendant David E. Budd applied at the United States land office at Vancouver, Washington Territory, for the purchase, as timber land, of the southeast quarter of section 12, township 9, range 1 west, 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 Stat. 89, c. 151. 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 anyone, . . . at the minimum price of two dollars and

Page 144 U. S. 156

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 register 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

Page 144 U. S. 157

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 F.6d 0, from which decree the United States appealed to this Court. chanrobles.com-red

Page 144 U. S. 160