Neff v. United States

• Decision Date: 23 November 1908
• Docket Number: 2,613.
• Citation: Neff v. United States, 165 F. 273 (8th Cir. 1908)
• Parties: NEFF v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

165 F. 273

NEFF v. UNITED STATES.

No. 2,613.

United States Court of Appeals, Eighth Circuit.

November 23, 1908

Syllabus by the Court

When a false instrument or affidavit is so palpably and absolutely invalid that it cannot defraud or inflict loss or injury under any circumstances, it may not form the basis of a charge of forging it, or of uttering it, or of transmitting it to the officer to defraud the United States.

But if under any contingency it may have the effect to deceive and defraud, it is sufficient to found a conviction of such an offense upon.

A forged instrument or affidavit regarding a material fact erroneously received in evidence by the officers of a local land office in the trial of a claim to land within their jurisdiction may deceive them and defraud the United States and hence may form the basis of a conviction under section 5418 (U.S. Comp. St. 1901, p. 3666), because a patent issued upon it by the Land Department would be impervious to collateral attack, and the United States would be estopped from avoiding it and from recovering the land even by a direct attack after the title to it passed to an innocent purchaser.

If the land and the claim were beyond the jurisdiction of the Land Department, the transmission of such an affidavit to its officers could not defraud the United States nor form the basis of a conviction under that section.

Such an instrument or affidavit is sufficient if it is apparently valid on its face, although extrinsic facts may exist that would render it void or ineffective if genuine.

It is not indispensable to a conviction for transmitting a forged affidavit to an officer to defraud the United States, or to a conviction of forgery, or of uttering a forged instrument that the affidavit, the forgery, or the uttering shall be sufficient in itself, without other evidence or acts, to win the controversy or to accomplish the object of the wrongful act. It is enough that it may under some contingency aid to bring about that result.

The acts of Congress and the regulations of the Land Department permitted one who had made a timber-culture entry to prove his compliance with their requirements within 5 years after the expiration of 8 years from the entry, and gave to the local officers of the Land Department jurisdiction to receive, consider, and approve, or reject in the first instance, final proofs of claims to the public land. They also provided that a notice of the taking of final proofs should be published, and that such proofs should be taken within 10 days after the time specified in the notice. More than 14 years after the date of his entry an entryman applied to the local officers to make final proofs, and the notice was published.

Held (1) The timber-culture entry did not expire or become ineffectual by the mere expiration of the 13 years from its date, and the officers of the local land office had jurisdiction to receive, to consider, and to approve or reject, final proofs thereon thereafter.

(2) A forged affidavit which appeared on its face to have been taken more than 10 days after the date named in the notice, which was transmitted to the officers by the defendant and was received and approved by them as a part of the proof, was sufficient to form the basis for a conviction under section 5418, Rev. St. (U.S. comp. St. 1901, p. 3666).

(3) A forged affidavit which was sufficient to aid in making, but was insufficient in itself to make, the proof, was enough to form a basis for a conviction under section 5418.

A 'patent to land' is the judgment of the Land Department and a conveyance of the title in execution of it to the party adjudged entitled, and, when the land described in it was within the jurisdiction and subject to the disposition of the department, is impervious to collateral attack.

An innocent purchaser's title under such a patent is impregnable. It may not be avoided by the United States by a direct attack.

For other definitions, see Words and Phrases, vol. 6, pp. 5230, 5231; vol. 8, p. 7748.)

I. E. Lambert (E. C. Cole and Humbert Riddle, on the brief), for plaintiff in error.

Harry J. Bone and J. S. West, for the United States.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

SANBORN Circuit Judge.

Section 5418 of the Revised Statutes provides that every person who falsely alters any affidavit for the purpose of defrauding the United States, and any person who transmits to or presents at the office of any officer of the United States for such purpose any false, forged, or altered affidavit knowing it to be false, forged, or altered, shall be punished by fine or imprisonment, or both (U.S. Comp. St. 1901, p 3666).

On March 15, 1889, Lemuel T. Williams made a timber-culture entry of a tract of land in the state of Kansas, and on September 25, 1903, his final proof was allowed by the register and receiver of the proper local land office, and the usual receiver's final receipt was issued to him. The defendant below was convicted and sentenced under section 5418 for altering the affidavit of Williams made on August 1, 1903, and for transmitting to the register and receiver this altered affidavit and the forged affidavits of Clarence A. Younggren and James A. Ridpath, which together form the proof of Williams' compliance with the statute upon which the receiver's receipt was founded. This judgement is assailed on the ground that none of these affidavits could have defrauded the United States of the land for which Williams obtained this receipt, because they were made and transmitted too late, because they were incompetent evidence, and because they constituted insufficient proof of Williams' claim.

The main contention is that the affidavits could not have defrauded the United States because, before they were made or presented, the entry of Williams, which was made March 15, 1889, had expired and become ineffectual for every purpose under the act of June 14, 1878 (chapter 190, Secs. 2, 3, 20 Stat. 114), which governed it, and which provided (1) that if, at any time within five years after the expiration of eight years from the date of the entry, the entryman should prove by two credible witnesses that he had cultivated the trees required by the act, and had otherwise complied with the acts of Congress, he should receive a patent for the land, and (2) that, if at any time after the entry and before the issue of the patent the entryman failed to comply with the requirements of the patent the entryman failed to comply land should be subject to entry under the homestead laws or under the timber-culture laws after notice to the original entryman had been given and a determination of the rights of the parties had been made as in other contested cases. The proposition is that under this act the entry was dead 13 years after March 15, 1889, or on March 15, 1902, and that the affidavits presented in 1903 could not have deprived the United States of the land. In support of this position counsel cite Northern Pacific Railroad Company v. De Lacey, 174 U.S. 622, 630, 633, 19 Sup.Ct. 791, 43 L.Ed. 1111, in which there is a decision that notwithstanding an uncanceled pre-emption entry made and abandoned in 1859 the United States had, in 1864 and 1884, 'full title not reserved, sold, granted, or otherwise appropriated, and free from preemption or other claims or rights' to the lands subject to the entry, and that no portion thereof had been 'granted, sold, reserved, occupied by homestead settlers or otherwise disposed of' within the meaning of the exceptions to the grant to the Northern Pacific Railway Company by the act of July 2, 1864 (chapter 217, 13 Stat. 365), and Oregon & C.R. Co. v. United States, 189 U.S. 103, 23 Sup.Ct. 673, 47 L.Ed. 726, in which the Supreme Court held that, notwithstanding an uncanceled entry under the Oregon donation act of September 27, 1850 (chapter 76, 9 Stat. 496), as amended by Act Feb. 14, 1853 (chapter 69, 10 Stat. 158), made and abandoned in 1853, the land which was the subject of the entry was not 'granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of' on July 25, 1866, within the meaning of the grant to the Oregon Central Railroad Company of that date (14 Stat. 239, c. 242). But these decisions are far from holding that, because those abandoned entries were ineffective against the railroad companies at the times when their respective grants took effect, no one who made or presented forged affidavits to the officers of the Land Department upon the trials of the claims made under those entries could be guilty of the offense denounced by section 5418.

In the former case the pre-emptor presented in 1887 to the register and receiver of the land office the proof of his claim initiated by his entry in 1859, and those officers and the Commissioner of the General Land Office approved his proof and sustained his claim, but the Secretary of the Interior reversed their decision and awarded the land to the railroad company. If the pre-emptor and his witnesses had knowingly made or presented forged affidavits to the officers of the Land Department upon the hearing upon his claim before them for the purpose of defrauding the United States out of the land there in controversy, would they have been guiltless of the offense specified in section 5418 because the receipt of those affidavits in evidence and the award of the land to the pre-emptor were legal errors? An affirmative answer to this question, which the maintenance of the proposition of counsel demands, ignores the radical difference between the action of a judicial or of a quasi judicial tribunal beyond its jurisdiction and its erroneous action within its jurisdiction. The former is void. But the latter...