220 F. 871 | 9th Cir. | 1915
The appellant was the owner of a large tract of land, consisting of some 20,000 acres, surrounding, and some of it adjoining, the land in controversy herein. The homestead entry was made in 1899, and the entryman obtained his final receipt on June 18, 1904. On July 15, 1904, he conveyed the land to the appellant. The entryman was a sheep herder in the appellant’s employment during the years 1902, 1903, and 1904, and during a large part of that time he was away from his home
“At the time I purchased the land X did not have any knowledge that it was claimed that he had not complied with the law with reference to residence and improvements.”
That is a very different- thing from saying that the appellant was without knowledge that the law had not been complied with. As to his actual presence on the land, all that he testified was:
“I think I was over the land a long time before the final proof was made.”
He did not say that he was not there at other times. There was testimony that in the spring of 1904 he was “a good many times” in the neighborhood of the land, and that he was seen crossing the same on a road which he had caused to be constructed. It is to be observed, also, that the appellant’s testimony is to some extent discredited by the testimony of witnesses to the effect that he had been engaged in employing others to take up land claims for him, and had furnished the fees and expenses for the entries. This testimony is not entirely denied by the appellant.
“The consideration must be stated, with a distinct averment that it was bona fide and truly paid, independently of the recital in the deed. Notice must be denied previous to and down to the time of paying the money, and the delivery of the deed.”
Cases applying these principles are Simmons Creek Coal Co. v. Doran, 142 U. S. 437, 12 Sup. Ct. 239, 35 L. Ed. 1063, Nickerson v. Meacham (C. C.) 14 Fed. 881, Lakin v. Sierra Buttes Gold Min. Co. (C. C.) 25 Fed. 337, Johnson v. Georgia Loan & Trust Co., 141 Fed. 593, 72 C. C. A. 639, United States v. Hill (D. C.) 217 Fed. 841, and United States v. Brannan, 217 Fed. 849, 133 C. C. A. 559.
The defense is clearly not supported by the evidence.
The judgment is affirmed.