Bistline v. United States

• Decision Date: 14 February 1916
• Citation: 229 F. 546
• Parties: BISTLINE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

229 F. 546

BISTLINE v. UNITED STATES.

United States Court of Appeals, Ninth Circuit.

February 14, 1916

Terrell & Terrell, of Pocatello, Idaho, for plaintiff in error.

J. L McClear, U.S. Atty., and J. R. Smead, Asst. U.S. Atty., both of Boise, Idaho.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

On April 10, 1911, the Attorney General of the United States filed a bill in equity in the United States Circuit Court for the District of Idaho for the cancellation of a patent issued by the United States to the defendant herein on June 30 1906, covering certain public lands of the United States situate in the state of Idaho. To the bill the defendant made answer on May 2, 1911. On September 17, 1913, the government filed a replication, and on the same date, upon motion of the United States attorney, a decree was entered dismissing the suit.

On the day of the dismissal of the suit in equity the United States attorney commenced the present action at law against the defendant for the recovery of the sum of $8,000 as damages for the alleged false and fraudulent acquisition and sale by the defendant of the lands granted to him under the patent of June 30, 1906, being the same patent which was sought to be canceled by the bill in equity. The defendant demurred to the complaint on the ground that the facts therein set forth were not sufficient to constitute a cause of action, and, the demurrer being overruled, he answered the complaint denying the allegations of fraud therein set forth, and setting up two affirmative defenses by way of pleas in bar: (1) That the facts alleged in the complaint had been formerly adjudicated and finally determined on the merits. (2) That the government had, by commencing and maintaining the suit in equity, made election between two inconsistent remedies, and was bound by such election.

Upon the issues thus raised the case proceeded to trial before a jury, and a verdict was rendered against the defendant and in favor of the United States for the sum of $600, upon which verdict judgment was entered. The assignments of error in this court relate to the action of the trial court in overruling the defendant's demurrer, in failing to give to the jury a peremptory instruction in favor of the defendant and in giving and refusing to give to the jury certain instructions. by the demurrer and the answer, to wit: The sufficiency of the complaint, the election of remedies by the government, and prior adjudication of the issues.

1. It was alleged in the complaint that the patent in suit was issued to the defendant by the United States on June 30 1906. The present action was commenced by the filing of the complaint on September 17, 1913--more than seven years thereafter. In support of its contention that the demurrer should have been sustained, the defendant invokes section 8 of the act of Congress of March 3, 1891 (26 Stat. 1093). That section provides as follows:

'Suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents.'

It is sufficient to say that the section has no application to the present case. This is an action at law to recover specific damages for the fraudulent acquisition of land by the defendant from the government and for the subsequent fraudulent sale thereof by...