McClure v. United States, 187 F. 265

McClure v. United States

187 F. 265 | 9th Cir. | 1911

MORROW, Circuit Judge

(after stating the facts as above). [1] It is impossible to distinguish this case from the cases of McLeod v. United States (just decided) 187 Fed. 261. The homestead proceedings in this case were all fictitious and fraudulent as in those cases, and were prosecuted by the conspirators named in the bill of complaint for the purpose of defrauding the United States out of the title and possession of its lands. The patent was issued to a fictitious person, and conveyed no title as held by the United States Supreme Court in Moffat v. United States, 112 U. S. 24, 5 Sup. Ct. 10, 28 L. Ed. 623, and by this court in the cases of McLeod v. United States, supra.

[2] The tender of a deed of relinquishment of the lands to the United States in this case by Garland does not change the situation. The relinquishment has not been accepted by the United States, and no proceedings had by the Land Department giving validity to the patent issued to the fictitious and fraudulent John Reese, nor does the relinquishment and the application to select land in lieu thereof defeat the jurisdiction of the Circuit Court to entertain a suit on the part of the United States to cancel the patent issued by the officers of the Land Department by mistake in such fictitious and fraudulent proceedings. The Land Department of the government may refuse to admit the validity of the patent in any proceedings before that départment, but it cannot revoke and cancel the instrument. That jurisdiction is vested in the Circuit Court of the United States. In Moore v. Robbins, 96 U. S. 530, 24 L. Ed. 848, the Supreme Court said with respect to this question of jurisdiction:

“After a patent for public lands is once issued, ail control of the executive department: over the title ceases. If fraud, mistake, error, or wrong has been done, the courts of justice present the only remedy. These courts ¡ire as open to the United States to sue for cancellation of the deed or reconveyance of *268the land as to individuals; and, if the government is the party injured, this is the proper course.”

We are of opinion that the bill of complaint is sufficient, and that the decree of the court below on the demurrer should be affirmed, and it is so ordered.