293 F. 755 | 8th Cir. | 1923
This is an action to cancel the patent, upon a homestead entry, of Eulogio Paiz. The charge was fraud in the final proofs in that there was no actual residence as required by law. The issue and contest at the trial was as to the existence of such necessary residence. For lack of evidence to sustain the bill, it was, after hearing on the merits, dismissed.
To justify a court of equity in annulling such a patent, the evidence of fraud must be “clear, unequivocal and convincing.” Maxwell Land Grant Case, 121 U. S. 325, 381, 7 Sup. Ct. 1015, 30 L. Ed. 949; Colorado Coal Co. v. United States, 123 U. S. 307, 316, 8 Sup. Ct. 131, 31 L. Ed. 182; United States v. Navigation Co., 142 U. S. 510, 541, 12 Sup. Ct. 308, 35 L. Ed. 1099; United States v. Budd, 144 U. S. 154, 12 Sup. Ct. 575, 36 L. Ed. 384; and in this court, United States v. Delatour (C. C. A.) 275 Fed. 137, 138, and United States v. Midland (C. C. A.) 281 Fed. 649, 651.
We have carefully read all of the evidence in this record. While it may be said that a preponderance of the evidence might properly be regarded as favoring appellant, yet we are not convinced that the evidence is so sufficiently “clear, unequivocal and convincing” that we are justified in overruling the finding of the trial judge who saw the .witnesses upon the stand and was in a much better position to judge the facts than are we who have only the printed record for guidance.
The judgment is affirmed.