174 F. 510 | U.S. Circuit Court for the District of Oregon | 1909
This is a suit to set aside a patent to land in the Cascade Forest Reservation, on the ground that it was issued to a fictitious person upon false and" fraudulent homestead papers, prepared in the office of the county clerk of Finn county, by Robert Montague, deputy clerk, and Horace G. McKinley. The bill alleges that, after the issuance of the patent, Montague made or caused to be made a deed in the name of the fictitious patentee to one Otterson, who was also a fictitious person, and afterwards executed a pretended deed in the name of Otterson, purporting to convey the land to one Garland; that Garland subsequently made a deed of relinquishment to the government, and caused the same to be recorded, and, based thereon, ap
The bill states facts which, if true, entitle the complainant to the relief sought (Moffat v. U. S., 112 U. S. 24, 5 Sup. Ct. 10, 28 L. Ed. 633, and United States v. McLeod, 174 Fed. 508, just decided), unless Garland’s deed of relinquishment precludes the government from maintaining' this suit. It is claimed that when Garland made and recorded his deed, and tendered it to the Rand Department in exchange for other lands, the title vested in the government, and that the validity of such title and the right to make a lieu selection is to be determined by the Rand Department, and not by the courts. I do not so understand the effect of the transaction, or the jurisdiction of the Rand Department, ft is provided bv Act June 4, 1897, c. 2, § 1, 30 Stat. 36 (TJ. S. Comp. St. 1901, p. 1541):
“Tiiat; in cases hi which a tract covered by an unperfeeted bona fide claim or by a patent is included within the limits of a public forest, reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a tract of vacant land open to settlement, not exceeding in area the tract covered by his claim or patent.”
No method of procedure for effecting the exchange is provided by law-. The general administration of the forestry reservation acts, however, and the adjudication of the various questions arising therein, are vested in the I,and Department. It has the power and authority to adopt, and lias adopted, rules and regulations governing the procedure in relinquishing lands within a reservation, and the selection of other lands in lieu thereof, of which the courts will take judicial knowledge. Cosmos v. Gray Eagle, 190 U. S. 301, 23 Sup. Ct. 692, 47 L. Ed. 1064.
By the rules and regulations as so formulated, one desiring to relinquish lands and select other lands in lieu thereof, where final certificate or patent has issued, is required to make a quitclaim deed to the United States for the land offered in exchange, have it recorded in the proper county, and file the same, accompanied by an abstract of title, duly authenticated, showing a chain of title from the government hack 10 the United States, to the property offered, in the local land office, and at. the same time designate the particular tract which he desires in lieu of that relinquished. 30 Land Dec. Dep. Int. p. 180, rule 16; William S. Tevis, 29 Land Dec. Dep. Int. p. 575.
But the title does not pass to the land offered in exchange until the deed is accepted. The mere execution and recording of a deed and the tender thereof vests no title in the government. Until the deed and • title are examined and approved, it is a mere assertion by the applicant of his title and right to make the selection. Cosmos v. Gray Eagle, supra; C. W. Clarke, 32 Land Dec. Dep. Int. 233; W. E. Moses Land Scrip & Realty Co., 34 Land Dec. Dep. Int. 460. But the equitable,
I conclude, therefore, that the Garland deed of relinquishment did not vest the title in the government, or confer upon the Land Department authority to determine the question whether the patent for such land was procured by fraud, and the demurrer should be overruled.