159 F. 932 | 8th Cir. | 1908
This was a bill in equity brought by the United States to cancel a patent issued to Collett, the defendant, for a quarter section of land in Arkansas. It appears that Collett entered the quarter section as a homestead on October 8, 1897, made final proof of residence and cultivation in March, 1904, and obtained his patent in November, 1904. It is claimed by the government that Collett practiced such a fraud as requires the cancellation of his patent.
The testimony on Collett’s part, given by two witnesses, tends strongly to show the following facts: That he was a cripple and had for his family an invalid wife and one child. That he went upon the land in the spring of 1898 soon after making his entry, and commenced making a home for himself and family. That he built a house and barn, cleared
The government called three or four witnesses who testified mainly in a negative way that they had not seen Collett on his place at certain times or in certain years; that they did not know of his cultivating his homestead, and that he lived at other places during part of the five years, and some of them announced their opinions that he had not resided on or cultivated his homestead for the period of five years. On this evidence the learned trial judge found against the contention of the government. •
The statute requires residence and cultivation in good faith for a period of five years by an entryman to entitle him to a patent of a homestead. The public land belongs to the government, and it may impose such conditions upon its alienation as to it seems best; and when, through fraudulent representations or practices, a patent lias been wrongfully secured from the government equity, as long as the title remains in the patentee at least, affords ample redress. United States v. Bell Telephone Co., 167 U. S. 224, 238, 17 Sup. Ct. 809, 42 L. Ed. 144.
We think the recognition of one or two cardinal principles will satisfactorily show that this case does not warrant the drastic remedy invoked. “The law deals tenderly with one who in good faith goes upon the public lands with a view of making a home thereon.” Ard v. Brandon, 156 U. S. 537, 543, 15 Sup. Ct. 406, 39 L. Ed. 524; Northern Pacific Railroad v. Amacker, 175 U. S. 564, 567, 20 Sup. Ct. 236, 237, 44 L. Ed. 274. “The evidence adduced to set aside a written instrument for fraud must be clear, unequivocal, and convincing.” Atlantic Delaine Co. v. James, 94 U. S. 207, 24 L. Ed. 112; Mastin v. Noble (C. C. A.) 157 Fed. 506, and cases cited. The learned trial judge found against the government on the issue here presented, and we entirely approve of that action. No fraud is disclosed by any clear,