State v. Hyde

169 P. 778 | Or. | 1918

McCAMANT, J.

1. As to 1,120 acres of the land involved in this suit, listed as Supplemennt A to this opinion, the evidence shows that the property has been conveyed by deeds regular in form to the United States; that the deeds have been accepted by the General Land Office and selections of lieu land based on these relinquishments have been approved. We are of the opinion that title to these lands has vested in the United States and that plaintiff’s claims thereto cannot be litigated in a suit to which the United States is not a party.

As to 2,080 acres of the land involved, listed in Supplement B to this opinion, the evidence fails to show that deeds to the United States for these lands have ever been accepted by anyone authorized to speak for the grantee or that selections of lieu land based on these relinquishments have been approved by the General Land Office. The evidence fails to show that the forty-acre tract listed as Supplement C to this opinion has ever been offered to the United States. For the reasons stated in our opinion in the Crook County case we are free to determine the rights of the parties to the lands tabulated in Supplements B and C.

These properties are covered by the applications of J. F. Smith, C. Northcutt, W. D. Cline, Harvie Meacham, M. 0. Baker, Charles Johnson, E. E. Morgan and W. C. Rice. The circumstances under which Smith signed his application are proved by two witnesses. The parties have stipulated with reference to the testimony of C. Northcutt. Cline and Miss Meacham, now Mrs. Murtón, testified in this cause. The evidence satisfies us that these applications were all made without intent to purchase state lands for the benefit of the applicants; they were secured in every case by the promise of a small sum of money which was not in every case paid; if the affidavits called for by the statute were made at all, they were false.

2. The M. 0. Baker application purports to be sworn to before Clarence H. Jones, a notary public doing business in Portland. The venue is omitted. Baker’s name does not appear in the directories of the City of Portland for 1898 or 1899. It satisfactorily appears that other applications were made in the names of fictitious persons or that the names of real persons were forged thereto. Mr. J. 0. Bailey, Assistant to the Attorney General, testifies to the most diligent search to locate these several applicants and Baker was one of those whom he could not find. It appears that Clarence H. Jones, before whom the Baker application purports to be sworn, secured several applications for the use of Hyde. If Schneider had presented to Jones applications signed in fictitious names, the testimony justifies the assumption that Jones would have accommodated Schneider by affixing his jurat. The absence of the venue suggests an attempt to mystify any investigator of the transaction. The assignment of the Baker application to A. S. Baldwin purports to' be acknowledged before Jones and witnessed by him. We think that plaintiff has made out a prima facie case as to this application, and in the absence of any testimony on the subject on behalf of the defendants, the application should be held to be fraudulent.

3. As to the applications of Charles Johnson, E. E. Morgan and W. C. Eice, plaintiff’s case rests wholly on the fact that these applications are sworn to before Clarence EL Jones, August 22, 1898, and that the rights of the applicants were assigned four days later to A. S. Baldwin. These are suspicious circumstances, hut they do not answer the requirements of our precedents as to the character of proof which will sustain a charge of fraud. See the authorities cited in the opinion in the Hood Eiver County case.

The other questions presented by this record are discussed and determined in the opinion in the Crook County case.-

It follows that the decree of the lower court should be affirmed as to the lands involved in the Johnson, Morgan and Eice applications; section 16 and the east half of section 36 in township 6 south, range 6 east of the Willamette Meridian. As to the remainder of the lands in dispute, the decree of the lower court should be reversed. As to the properties described in Supplement A, the suit should he dismissed without prejudice; the properties listed in Supplements B and C, other than those covered by the Johnson, Morgan and Eice applications, should he restored to plaintiff and the state deeds therefor should he canceled.

Plaintiff should have judgment for costs against the defendant Hyde in both courts. No costs should he recovered against plaintiff.

Modified. Eehearing Denied.

SUPPLEMENT A.

LANDS OFFERED AND ACCEPTED AS BASE FOR LIEU SELECTIONS.

SW. % of See. 16, t. 5 s. r. 5 e.................. 160

Section 36, t. 5, s. r. 5 e........................ 640

N. y2 of Sec. 36, t. 3. s. r. 7 e.................... 320

1,120

SUPPLEMENT B.

LANDS OFFERED BUT NOT ACCEPTED AS BASE FOR LIEU SELECTIONS.

S. y2 of Sec. 36, t. 3. s. r. 7 e.................... 320

SW. % of SW. *4 of Sec. 36, t. 3 s. r. 8% e....... 40

Section 16, t. 6 s. r. 6 e......................... 640

SE. % and NE. %, N. % of NW*4 and SW. % of

NW. XA of Sec. 16, t. 5 s. r. 5 e.............. 440

Section 36, t. 6 s. r. 6 e.........;.............. 640

2,080

SUPPLEMENT C.

LAND NEVER OFFERED AS BASÉ FOR LIEU SELECTION.

SE. % of NW. of Sec. 16, t. 5 s. r. 5 e 40