235 F. 110 | 8th Cir. | 1916
This case was before us at a former term of the court on an appeal from a decree sustaining a demurrer to the complaint. The decree was reversed. United States v. Exploration Company, 203 Fed. 387, 121 C. C. A. 491. A trial of the case has been had, and a decree rendered in favor of the plaintiff. Defendants have again appealed, assigning error.
The principal question in the case now, as well as on the former appeal, is as to whether plaintiff’s cause of action, at the time the complaint was filed, had been barred by the statute limiting the time for the institution of suits to vacate and annul land patents. The statute referred to may be found in 26 Stat. 1095, 1099, 1093, and 29 Stat. 42, being Act March 3, 1891, c. 559 (Comp. St. 1913, § 4992), and chapter 561, and Act March 2, 1896, c. 39 (Comp. St. 1913, §§ 4901-
We have carefully considered the evidence taken at the trial, and find that it fully supports the findings of the trial court. It is now claimed, however, that our former ruling on the statute of limitations was based on the allegations of the complaint to the effect that the. defendants actively engaged in a conspiracy to conceal the fraud committed in obtaining the patents. In deciding the questions raised by the demurrer, we of course referred to the language of the complaint; but the reason for our ruling, and the authorities cited in support thereof, applied to cases of concealed fraud, whether active or passive. In our former opinion we quoted an excerpt from Bailey v. Glover, 21 Wall. 342, 22 L. Ed. 636, as follows:
“To hold that by concealing a fraud, or by committing a fraud in a manner that it concealed itself, until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful and secure.”
Indeed, the rule seems to be well established. The important question in this case is as to whether it may be applied to the statute of limitations under consideration. For the reasons stated on the former appeal, which need not be repeated here, we hold that it does. In the case at bar the defendants did not advertise the fact that they were committing a fraud, nor did they discuss the fraud among themselves in the presence of others, but the manner in which the fraud was committed constituted all the concealment that was necessary. After it was supposed the statute of limitations had barred any action, the participants in the fraud talked very freely, telling the truth when it was thought it would do no harm. The findings of the trial court, in our judgment, are fully sustained by the evidence, and the findings sustain the decree rendered.
In regard to the point that the right Exploration Company was not sued, we are satisfied with the disposition of that question, and the reasons therefor appearing in the opinion of the trial court. 225 Fed. 860. It is further objected that the decree entered should have recognized the interest of one Alexander Burrell. Burrell was originally named as a defendant in the suit. He appeared and filed a separate demurrer. The demurrer was sustained, and a decree entered dismissing him from the case. On the former appeal counsel moved to dismiss the same, for the reason that Burrell was a party defendant in the court below, and was not made a party on the appeal. We then decided that it did not appear that Burrell, taking the allegations of the complaint to be true, had any interest in the controversy, nor does it now appear from the evidence. Having demurred to the
The decree is affirmed.