238 F. 648 | D. Mont. | 1917
In this suit to annul a homestead patent, the charge is that defendant procured the patent by fraud, in that for the required period he did not establish and continuously maintain residence upon the land. The answer denies.
But this did not disturb his continuous actual residence upon the homestead. “Actual residence,” within the Homestead Law, means-no more than residence — true, substantial and real; not fictitious, nominal, or pretended. It does not require continuous presence on the land, but only that it be habitation fixed and maintained with intent to continue it so long as the homestead law requires, in this case, three years. It is consistent with much absence and less presence on the land, turning largely on circumstances and intent and .good faith evidenced by acts and conduct. No good policy would be subserved by insisting an entryman in a case like this should “loaf” upon the homestead, and the law does not insist.
The final proof question is ambiguous. What absence does it import? Surely not mere trips to town, neighbors, etc., though of some' few days. Defendant testified herein that, on his necessary inquiry, the officer taking the proof explained to him that “absent” meant for a period interrupting continuous residence; hence his answer. And in that final proof are the answers of two witnesses that plaintiff had been absent, demonstrating, though not material, that by defendant’s answer the Land Department was not misled. It is appreciated that, in such cases as this, circumstances render proof of the alleged fraud difficult. But no mote so than for an honest patentee to defend the charge. Safety of the latter, stability of titles, and general welfare prohibit relaxation of the rules of proof.
Decree accordingly.
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