United States v. Depaoli

• Decision Date: 09 December 1943
• Docket Number: No. 10418.,10418.
• Citation: 139 F.2d 225
• Parties: UNITED STATES v. DEPAOLI et ux.
• Court: U.S. Court of Appeals — Ninth Circuit

139 F.2d 225 (1943)

UNITED STATES v. DEPAOLI et ux.

No. 10418.

Circuit Court of Appeals, Ninth Circuit.

December 9, 1943.

Norman M. Littell, Asst. Atty. Gen., Thomas O. Craven, U. S. Atty., of Reno, Nev., Norman MacDonald and John C. Harrington, Attys., Dept. of Justice, both of Washington, D. C., for appellant.

William M. Kearney, of Reno, Nev., for appellee.

Before GARRECHT, DENMAN, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

This is a companion case to United States v. Garaventa Land & Livestock Co., 9 Cir., 129 F.2d 416.

Here, as in the case mentioned, the United States sued to recover possession of a tract of land within the Pyramid Lake Indian Reservation following a declaration of forfeiture of an entry made under the Act of June 7, 1924, Chapter 311, 43 Stat. 596, 25 U.S.C.A. § 421 note. The legal and factual situation is described in the opinion in the Garaventa case, supra, and we will not repeat what was there said. The particular facts relating to the present entry are these:

On March 3, 1925, appellee made entry under the special act by filing his application to purchase, and thereafter made the requisite down payment in the amount of $2,514.82 on the appraised price of $6,068.03. After receipt of the initial payment the General Land Office, on September 16, 1925, allowed the application. In 1935, as the result of a re-appraisement, the purchase price was reduced and appellee was allowed 30 days to make full payment of the balance of the principal, or to pay the interest only. There was an unavailing appeal to the Secretary for a further reduction in the purchase price.¹ On March 10, 1936, the General Land Office notified appellee of a ruling of the Secretary to the effect that all interest due on the unpaid principal must be paid within 30 days; that one-third of the principal still owing was required to be paid within six months; and that, failing this, the application would be cancelled without further notice.

Appellee failed to pay the interest as required and on May 13, 1936, the Secretary ordered the cancellation of his application. On August 11, 1936, appellee petitioned for a reinstatement and at that time paid to the register of the United States Land Office at Carson City the full balance owing, with accrued interest, namely, the sum of $5,116.62. On September 30, 1936, the Commissioner of the General Land Office denied the petition for reinstatement and directed the return of the final installment paid in August. The down payment of $2,514.82 was not returned or tendered, and no offer has ever been made by the government to refund the same.

Apparently through error, the Commissioner's direction to return the final payment was not carried out. The local register and receiver had forwarded the money to the General Land Office in the regular...