265 F. 235 | 9th Cir. | 1920
“The entries described in the complaint were made under an act of Congress (28 Stat. 286, 326) and the amendments thereto (31 Stat. 179, 740) requiring, among other things, that three years’ actual residence on the land ‘shall be established by such evidence as is now required in homestead proofs as a prerequisite to title or patent.’ But the Land Department of the United States, acting under what is now conceded to have been a mistake of law, permitted eight of the entrymen to make proof of residences of from one to one and one-half years, respectively, and to deduct times of their respective military services .from the required three-year period of residence. This error arose by applying to the entries upon lands within the Siletz reservation the provisions of sections 2304 and 2305, Revised Statutes (Comp. St. 1916, §§ 4592, 4593), and Act Jan. 26, 1901, c. 180 (31 Stat. 740), which relate to commutation of homestead entries made by honorably discharged Union soldiers.”
The court then stated the question at issue in the case as follows:
“Inasmuch, then, as the requirements of the statute under which the proofs were taken and the patents issued could only have been properly met by proof of three years’ actual residence on the land, the question arises: Is the United States precluded in this action from recovering damages although the entry-men in their final proofs did not say that they had actually resided on their lands for the required period of three years, yet did falsely swear that they had actually resided on the lands for certain times, though for less than the three years required; that they were making the entries for themselves when in fact they were making them for the benefit of the defendant, Jones; that they had made certain improvements which in fact they had not made; and that they had made their entries for the purpose of actual settlement and cultivation, when in fact they had not made them for those purposes ?”
The court held that the United States was not precluded from recovering damages in this action for the lands conveyed in the patents to the entrymen therein named, notwithstanding the entrymen in their final proofs did not say that they had actually resided on their lands for the required period of three years. The court accordingly reversed the judgment of the trial court and upon the subsequent trial of the issues before a jury a verdict and judgment was entered in favor of the United States for the sum of $18,2(34.84.
The question involved in the former writ of error is again brought up for review upon an objection to the introduction of any evidence in support of the allegations of the complaint. The objection to such evidence is made upon the ground that the officers of the Land Department could not have been deceived to the extent that any of the
“this contention would eliminate intentional misrepresentation and falsehood as to agreements of alienation and as to continuous residence for the time sworn to in the final proof and as to cultivation of the lands embraced within the entries and occupancy thereof for home purposesthat “these several requirements cannot be looked upon as immaterial and irrelevant, because tliev are of the essence of the homestead law.” U. S. v. Jones, 242 Fed. 614, 155 C. C. A. 304.
The lands in controversy, the value of which the United States is seeking to recover from the defendant Jones, were formerly a part of the Siletz Indian reservation, in Lincoln county, in the state of Oregon. They were ceded to the United States by the Indians under an agreement dated October 31, 1892. They were opened to settle.ment and entry on July 25, 1895, under the homestead laws of the United States, by section 15 of the act of August 15, 1894 (Indian’ Appropriation Bill, 28 Stat. 286, 323, 326), and the proclamation of the President of the United States -dated May 16, 1896 (29 Stat. 866). The act of August 15, 1894 provided, among other things, that — •
“Tire mineral lands shall be disposed of under the laws applicable thereto, and the balance of the land so ceded shall be disposed of until further provided by law under the townsite law and under the provisions of the homestead law: Provided, however, that each settler, under and in accordance wim the provisions of said homestead laws shall, at the time of making his original entry, pay the sum of 50 cents per acre in addition to the fees now required by law, and at the time of making final proof shall pay the further sum of $1.00 per acre, nnal proof to be made within five years from the date of entry, and three years’ actual residence on the land shall be established by such evidence as is now required in homestead proof, as a prerequisite to title or patent.”
The law relating to homestead proof here referred to is found in sections 2290 and 2291 of the Revised Statutes of the United States (Comp. St. §§ 4531, 4532). In section 2290 it-is provided that any person applying to enter land as a homestead shall make affidavit “that such application is honestly and in good faith made for the purpose of actual settlement and cultivation, and not for the benefit of any other person, * * * that he * * * does not apply to enter the same for the purpose of speculation, but in good faith to obtain a home for himself, * * * and that he * * * has not directly or indirectly made, and will not make, any agreement or contract in any way or manner, with any person * * * 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,” and in section 2291 it is provided that in making final proof by the entryman he shall prove by “two credible witnesses that he * * * has resided upon or cultivated the” homestead “for the term of three years immediately succeeding the time of filing the affidavit, and * * * that no part of such land has been alienated” except as provided in a preceding section not applicable here. .
The act of August 15, 1894, required the homestead entryman to reside on the land for only three years, instead of five years, as then required by the general homestead law. With this single exception, the homestead entryman was required to comply with all the provisions of the general homestead law. Under this law the question upon the trial was: Did the entrymen, in their applica
A written agreement was made by the defendant, Jones, with each of the entrymen relating to this land. The agreements provided that Jones would give the entrymen information which would enable each of them to locate and file a homestead upon 160 acres of public lands. It does not appear from the evidence that these prospective entrymen were looking for homesteads, or indeed for land of any kind. On the contrary, Jones had employed an agent to look up the lands for him, and another agent was sent out to look up qualified entrymen to enter the lands. The agreement was to bind the entrymen to Jones in such a manner that, while it appeared upon its face to aid the entryman in acquiring a homestead for himself under the law, it was in fact an agreement in which that feature of the transaction might have a different complexion, and he made subordinate to the interest of Jones in a profitable transaction for himself in land or money, or possibly both. The agreement provided that, after final proof had been made by the entry-men, J ones,, at the option of the entryman, would procure a loan, not to exceed the sum of ,$720 to be secured by a first mortgage upon .the claims, and immediately upon the procurement of such a loan all sums of money advanced by Jones should become due and payable, and should be paid out of the loan so secured.
These advances to be made by Jones were set forth in the agreement and were for: (1) Information to be furnished by Jones which would enable the entryman to locate and file a homestead upon 160 acres of land and for affidavits necessary in making such filing, .$185; (2) the building of a house upon the land by Jones, 8100; (3) the clearing and cultivating of the land by Jones, ,$175; (4) the advance by Jones of the. fees to make and perfect the filing, $60— making a total of $520. After final proof, Jones wras to procure a loan for each entryman for an amount not to exceed the sum of $720. Here was a difference of $200 between the advances to be made by Jones as provided for in the agreement and the amount of the loan. Manifestly this written agreement required scrutiny and careful inquiry into the facts and circumstances under which it was entered into and was to be carried out.
The defendant was a witness in his own behalf. He testified that he had heard about this land being taken on the Siletz, and he sent a Mr. Mead over to make an examination of it — to cruise it. The meaning of the term ‘'cruise,” as here used, is defined by the Standard Dictionáry as:
*240 “A report of a timber surveyor showing tbe character and amount of timber in a stand.”
The land in controversy is timber land, and the purpose of the survey was therefore to ascertain its value as timber land, and not as agriculture land. The witness said he had in mind at that time to locate soldiers’ widows on the land, and he had a contract prepared by a Mr. Potter, who, it appears, was a lawyer; that he went to see a Mr. Wells, to see if he (Wells) could secure the signatures of widows to these contracts. He went to Wells, because he was adjutant general of the G. A. R. of the state, and as such knew all, or a great many, of his comrades. After he had secured the signatures of 13 or 14 soldiers’ widows, he ascertained that there were not very many more soldiers’ widows who were eligible for claims. With respect to those that ' were secured, no houses were built on the claims, because it was thought it was not required; but the Interior Department decided that a soldier’s widow had to identify herself with the land by some act of settlement. The result was all these widows’ claims were canceled by the Secretary of the Interior; but the witness had already turned his attention to the ex-soldiers’ claims in their own right, and he employed Mil Wells to secure signatures to the claims of ex-soldiers, for which he paid Wells $5 each. The witness was asked whether these contracts “were prepared before the entrymen were secured.” He answered:
“Wby, yes, they were prepared; that was the first thing that was done, was to prepare the contracts, and those contracts in blank were given to Mr. Wells, and he brought them back to my office signed. There were very few, if any, of those entrymen that I ever saw at that time. They were signed, not in my presence, or not from any conversation that I had with him or with them, but the signatures were secured by Mr. Wells.”
The witness testified that in accordance with the terms of the agreement he took a mortgage from each of the nine entrymen mentioned in the complaint for $720, except in one instance, where the entryman gave him a quitclaim deed. He acquired title after the patents had been issued to four of the claims. The title to the remaining five he did not get. He was not looking to the soldiers for the security. There was no individual security -there. Pie did not expect to recover against the soldiers. He was looking to the land. Pie was asked if he expected the old soldiers to pay off the advances he had made to them. He answered that he hoped they would. He was asked where he thought they were going fo get the money to pay them off. He replied that he supposed they would sell the land, like most homesteaders did.
J. D. Wells was a witness for the United States,- and he testified that he was a member of the G. A. R.; that he had made a filing for himself, and entered into the contract with defendant, Jones, mentioned in the complaint. He also interviewed and secured contracts with the eight others described as entrymen in the complaint. He was asked, concerning his own entry, if he at any time had intended to file on the land as a home. He answered, “No; not exactly.” He was asked if any of the others intended to file upon tire
“The rule is established by decisions almost inumorable that, to entitle an appellant to call in question instructions given by a trial court to the jury, the exception or exceptions taken thereto must be sufficiently specific to direct the attention of! the court to the particular error or errors complained of, to the end that the court may correct tlie error, should one be found to exist, before the retirement of the jury.”
Finding no error in the record, the judgment of the District Court is affirmed.