29 F. 134 | U.S. Circuit Court for the District of Northern California | 1886
This is a bill in equity to vacate a patent issued to defendant Minor to 80 acres of land, being the W. of the N. W. J of a certain section, on the ground that it bad been fraudulently procured. Minor, having no interest in the land, made default, and the decision must turn on the rights of defendant Croghan upon the case as disclosed by the bill, answer, and stipulated facts.
The material facts, as appear by stipulation, and by the uncontradicted answer responsive to the bill, are as follows: Minor filed his declaratory statement for the land in question, as a pre-emptioner, October 23,1874. He made his proofs as a pre-emptioner, and paid for the land in full, June 23, 1875. He made his proofs without notice'to or knowledge of Spence, by and through the mistake and inadvertence of the land department in not noting a contest between Spence and Minor. A patent regular in form was issued to Minor, January 5, 1876. He had a house on the land, but had not made it his home, or inhabited the land, as required by law, when he made such proofs, and procured his patent. Being indebted to defendant, Croghan, in the sum of $1,280, then due, on May 1, 1876, having, at the time, the patent in his possession, in consideration of said indebtedness, and the further consideration of an extension for six months’ time in which to pay said indebtedness, on interest at 1£ per cent, per month, Minor gave his note for the amount to Croghan, payable in six months, and, to secure payment, executed a mortgage on said land. Croghan, at the time of extending the time of payment and taking said mortgage, had in fact no notice of the fraudulent manner in which said patent had been obtained, but supposed it to have been in all respects honestly and properly issued, and no notice of any
One Spence having, in 1872, settled upon the south 40 acres of the \Y. \ of the S. W. of the same section, with an intent to preempt that 80, and the 80 in question, adjoining on the north, on 'December 3, 1874, after the filing of Minor’s statement, filed a declaratory statement covering the W. J of the S. W. and the W. J of the IS. W. of the section; the latter being the land in question covered by Minor’s claim, constituting the two 80’s, standing end to end to eacli other. Spence built a house upon the south half of the south 80, a quarter of a mile or more from the land in question. He made sundry improvements on, and cultivated and fenced a portion of, the south part of the south 80, but he never made any improvements of any kind or lived on the north 80 in question, and there was nothing on the lend in question, at the date of said mortgage, or at any time, to indicate that it was claimed by anybody, except the house owned by the patentee, Minor. The land was unoccupied, and not inclosed. The land on both tracts, and the surrounding country, was all heavily timbered with redwood. In January, 1878, long after the patent to Minor and mortgage to Crogban, Spence, in the land-office, changed his pre-emption claim to a homestead claim; and in April, 1880, made his proofs on said homestead claim to both tracts, paid the required charges thereon, and sought a patent for the land.
In the moan time Crogban had foreclosed his mortgage, and purchased in the mortgaged premises, being the 80 in question, at the sale under the decree, and in duo time received the sheriff’s deed. He now holds the legal title, under the patent to Minor, in pursuance of the transactions set out.
In my judgment, bis title is valid against all the world. Tlio title was probably voidable for the fraud of Minor, and mistake in the land-office, in the bands of Minor, but it was not void upon the face of the record. The patent, which is the final record of the title, (Beard v. Federy, 3 Wall. 491, 492,) was regular and valid on its
There must be a decree dismissing the bill, with costs; and it is so ordered.
