70 F. 289 | U.S. Circuit Court for the District of Washington | 1895
For a statement of this case, I refer to the opinion of the court on demurrer to the bill of complaint now on file (57 Fed. 516-519), and I now reaffirm that decision as to the points then considered.
Since the decision of the court upon said demurrer, the defendants have answered, denying the equity of the bill, the testimony lias been taken and reported to the court by a master, and the case has been argued and submitted on final hearing. The evidence shows clearly that the complainant is entitled to all the rights of a bona fide purchaser of the land. In the case of U. S. v. California & O. Land Co., 148 U. S. 42, 13 Sup. Ct. 458, Mr. Justice Brewer, in the opinion of the court, quotes with approval from section 745, 2 Pom. Eq. Jur., wherein the author states that “the essential elements which constitute a bona fide purchaser are, therefore, three: A valuable consideration, the absence of notice, and presence of good faith.” Judged by that rule, the complainant stands upon firm ground. He actually
The grounds of defense are as follows:
First. Miller's entry has been canceled by order of the secretary of the interior, and the decision of the secretary is based upon facts which lie has found from consideration of the evidence taken by the register and receiver of the local land office, and the findings of the secretary are conclusive upon the courts. This proposition has been passed upon, and my opinion is expressed in the opinion heretofore rendered upon the demurrer. It is only necessary to add that the testimony fully establishes the plaintiffs allegation that the proceedings to cancel Miller's entry were taken without notice to him. Therefore, he is not bound by the decision of the land department.
Second. At the time of making his entry, Miller was not a citizen of the United States. The evidence, however, shows that, several years prior to filing his application to purchase the land, he had made his declaration of intention to become a citizen of the United States. The law under which he purchased the land provides that timber land may be sold to citizens of the United States, or persons ■who have declared their intention to become such, and the law does, not require a purchaser of land under said act to state in Ms application tliat he is a citizen of the United States. Mr. Miller was qualified to become a purchaser of timber land under said law, and the inaccuracy of his statement in his application to purchase the’ land, to (lie effect that lie was then a naturalized citizen of the United States, is immaterial. Uo fraud was committed upon the government thereby, and X hold that his entry is not invalid on that account.
Third. An issue was raised as to the character of the land. The defendants deny that, at the time of Miller’s entry, it was unfit for cultivation, or chiefly valuable lor its timber, so as to be subject to sale under said law. The register and receiver of the land office, upon the evidence before them, found in Mr. Miller’s favor on this point, and their superiors in the land department were not able, on this ground, to reverse their decision. While the evidence is conflicting, it all tends to prove that the land is not very good for agriculture, and that the timber thereon is not the best quality of merchantable timber, and not as abundant as the timber in other parts of Western. Washington. It is shown that, after the entry had been made, and before the land had been sold to the j)laintiff,-a considerable sum had been realized by Miller’s vendee, Ryan, on timber taken from this land and sold for lumber, and there remains upon the land a considerable quantity of timber which is being cut for cord wood-. The defendant Shaw, who took the land under the pre-emption law, and was thereafter required to make proof of his residence on and cultivation of the land, did cultivate a very small piece for one season only. Its value for agricultural purposes is not sufficient to induce him to continue to work it himself, nor tempt others to rent it. After carefully weighing all the evidence. I have reached the conclusion that the decision of the register and receiver, as to the nature and
Fourth. It is claimed that Miller did not purchase the land in good faith, for his own use, hut acted merely as the instrument of Ryan, and that it was agreed between them that the title which Miller should acquire, should inure to the benefit of Ryan. It was on this ground that the secretary of the interior canceled the entry. The facts relied upon to sustain the secretary’s conclusion are that Miller was an employé of Ryan, and obtained his first information with reference to the land, from Ryan; that, before deciding to enter it as timber land, he consulted with Ryan, and obtained from him a promise to advance the amount of money necessary to make the entry, and that Ryan agreed to take, as security for the amount of the purchase price which he should advance, a conveyance of a one-half interest in the land; that Ryan did advance money to Miller at the time his final proof was made; that, a few days afterwards, Miller executed a contract to convey a one-half interest in the land, as security for the money advanced, and an additional sum which Miller owed on account of other dealings, in all amounting to about §475. Ryan then commenced cutting timber on the land, and actually removed most of the merchantable timber, and he subsequently purchased Miller’s remaining one-half interest for the price of §1,000. These facts only gave rise to an inference that Miller had contracted, before entering the land, to give Ryan an undivided one-lialf thereof, after his title should be perfected, which inference, in my opinion, is overcome by the positive and direct testimony- of both Ryan and Miller, that no such contract was made. They have both testified that, Ryan being in need of money, called upon Miller to- repay him the amount secured by the contract for a one-half interest in the land, and that, Miller being unable to make the payment, Ryan took steps to put the land on the market, and finding that it had enhanced in value, he purchased Miller’s entire interest, and resold it at the first opportunity. The facts are not necessarily inconsistent with an honest entry by Miller, and certainly not sufficient to-compel an inference of fraud sufficiently strong to overcome the only positive testimony bearing upon this vital point. To justify a forfeiture, proof of the facts constituting fraud or perjury must be clear and convincing. Mere inferences are not sufficient. U. S. v. Budd, 43 Fed. G30; Id., 144 TJ. S. 154,12 Sup. Ct. 575.
Decree for the complainant in accordance with the prayer of his bill.