208 F. 209 (9th Cir. 1913), 2,209-2,211, United States v. Kettenbach

Docket Nº:2,209-2,211.
Citation:208 F. 209
Party Name:UNITED STATES v. KETTENBACH et al. (three cases.)
Case Date:October 21, 1913
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 209

208 F. 209 (9th Cir. 1913)

UNITED STATES

v.

KETTENBACH et al. (three cases.)

Nos. 2,209-2,211.

United States Court of Appeals, Ninth Circuit.

October 21, 1913

Page 210

The United States of America, the appellant in each of the above-entitled actions, filed three separate bills in equity in the United States District Court for the District of Idaho, for the purpose of having canceled, set aside, and declared null and void certain patents theretofore granted by the appellant for lands lying in that state and district, and to have said lands restored to the public domain.

The bills are in substance and effect identical. In each it is alleged that, prior to the acts therein complained of, the complainant was the owner of the lands therein described, such lands constituting a part of the public domain and situated within the state and district of Idaho; that by an act of Congress of the United States, entitled 'An act for the sale of timber lands in the states of California, Oregon, Nevada and in Washington Territory,' approved June 3, 1878 (chapter 151, 20 Stat. 89), as amended and extended to all public land states by the Act of Congress of August 4, 1892, c. 375, 27 Stat. 348 (U.S. Comp. St. 1901, p. 1545), it was provided, among other things, in substance that surveyed public lands of the United States within the public land states, valuable chiefly for timber but unfit for cultivation, might be sold to citizens of the United States, or persons who had declared their intention to become such, in quantities not to exceed 160 acres to any one person or association of persons, at the minimum price of $2.50 per acre; that it was further provided in said act 'that any person desiring to avail himself of the provisions of this act shall file with the register of the proper district a written ten statement in duplicate * * * setting forth * * * that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit, and that he has not, directly or indirectly, made any agreement or contract in any way or manner, with any person or persons whomsoever, by which the title which he might acquire from the government of the United States shall inure, in whole or in part, to the benefit of any person except himself'; that said statement was required by said act to be verified by the oath of the applicant before the register or receiver of the land office within the district where the land was situated; that said act further provided that, 'if any person taking such oath shall swear falsely in the premises, he shall be subject to all the pains and penalties of perjury and shall forfeit the money which he may have paid for said lands and all right and title to the same, and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void.'

The bills further alleged that on the 1st day of July, 1902, and at divers other times before and after that date, and before the making of the several entries therein mentioned and designated, William F. Kettenbach, George H. Kester, Clarence W. Robnett, and William Dwyer, with divers other persons, did unlawfully and corruptly combine, conspire, confederate, and agree together, and with each other, and with divers other persons, and did form, make, and enter into an unlawful, corrupt, and fraudulent conspiracy, combination, and agreement with each other and with such other persons, for the purpose and to the end of defrauding the complainant of the title and ownership of divers large tracts of public land then owned by the complainant, by means of false, fraudulent, and unlawful entries to be made of the aforesaid said tracts of public land, and by means of perjury, the subornation of perjury,

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the procurement of false swearing, and by means of other falsehoods, whereby the officers of the United States should be deceived and imposed upon, and should be induced and procured to divest the United States of its title to the said lands, and to convey said title of the United States to divers persons not lawfully entitled thereto, contrary to the laws of the United States, and for the benefit, advantage, and profit of the said defendants; that after the formation and making of the said unlawful conspiracy and agreement so as aforesaid made and entered into by the said defendants, and at divers times in the state of Idaho, in pursuance and execution of the said conspiracy, and for the purpose of effecting the said unlawful purpose thereof, the said defendants, or some of them, did make and enter into fraudulent, corrupt, and unlawful contracts, agreements, arrangements, and understandings with a large number of persons; that in and by said unlawful contracts, agreements, arrangements, and understandings so as aforesaid made by the said defendants with the said persons, each of the said persons severally agreed and arranged with the said defendants, or with some of them, that he or she would make an entry or purchase a tract of the public land of the United States under and in pretended and apparent accordance with the aforesaid act of Congress approved June 3, 1878, as amended on August 4, 1892, and would, upon obtaining title to the said tract from the United States, convey the said title and tract to the defendants, or to some of them; that the said persons severally did apply to enter, and did make entries of divers tracts of public land of the United States, and each of the said persons did consequently and in the usual course of administration of the public laws obtain from the United States a patent whereby the United States conveyed to each of the said persons, severally, the tracts by him or her entered; that each of said persons so making entry of and obtaining title to the tract by him or her entered did apply to make and did make such entry, and did prosecute and carry on the proceedings, at the solicitation and instigation of the said defendants, being moved and stimulated thereto by the advice, request, and promises of the said defendants, and therein acting upon, in pursuance of, and in accordance with the unlawful, corrupt, and fraudulent agreement, arrangement, and understanding theretofore made and entered into as aforesaid between him or her and the said defendants; that, by reason of the unlawful conspiracy among the said defendants and the said other persons who made the entries enumerated and designated in the said complaints, the perjury procured by the said defendants, and committed by the said other persons in the procurement of the said entries, and the false swearing, misrepresentations, and concealment of material facts committed and practiced by the said persons, the said entries, and each of them, were unlawfully made, and were and are illegal, fraudulent, and invalid, and the United States was and is defrauded thereby; and that the said patents, by reason of the said facts, are invalid, and are voidable at the suit of the United States, as having been procured by fraud, perjury, misrepresentation, and imposition, and in violation of law, and as having been issued and granted under fraudulent imposition and mistake of fact, and in fraud of the United States.

The complainant prayed that the patents issued to the entrymen named in the bills be declared void, be held for naught, and set aside, and that the said lands be restored to the public domain of the complainant.

In the bill of complaint filed in appeal No. 2,209, the complainant, for the causes mentioned, attacked the validity of 17 patents, issued to the following entrymen: Patent No. 4,049, issued February 25, 1904, to Carrie D. Maris; patent No. 4,385, issued August 3, 1904, to John H. Little; patent No. 4,384, issued August 3, 1904, to Ellsworth M. Harrington; patent No. 4,389, issued August 3, 1904, to Wren Pierce; patent No. 4,390, issued August 3, 1904, to Benjamin F. Bashor; patent No. 4,393, issued August 3, 1904, to Joseph B. Clute; patent No. 4,395, issued August 3, 1904, to Francis M. Long; patent No. 4,396, issued August 3, 1904, to John H. Long; patent No. 4,397, issued August 3, 1907, to Benjamin F. Long; patent No. 4,414, issued August 3, 1904, to Bertsel H. Ferris; patent No. 4,415, issued August 3, 1904, to George Ray Robinson; patent No. 4,762, issued December 31, 1904, to Charles W. Taylor; patent No. 4,764, issued December 31, 1904, to Jackson O'Keefe; patent No. 4,765, issued December 31, 1904, to Edgar J. Taylor; patent No. 4,766, issued

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December 31, 1904, to Joseph H. Prentice; patent No. 4,772, issued December 31, 1904, to Fred E. Justice; patent No. 4,799, issued December 31, 1904, to Edgar H. Dammarell.

In the bill of complaint filed in appeal No. 2,210, the complainant, for the causes mentioned, attacked the...

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