United States v. Jones

• Decision Date: 16 June 1917
• Docket Number: 2809.
• Citation: 242 F. 609
• Parties: UNITED STATES v. JONES.
• Court: U.S. Court of Appeals — Ninth Circuit

242 F. 609

UNITED STATES v. JONES.

No. 2809.

United States Court of Appeals, Ninth Circuit.

June 16, 1917

The United States brought action against the defendant, Jones for damages for alleged fraud and deceit committed by Jones in securing the issuance of patents to certain lands within the Siletz reservation in Oregon. The substance of the complaint is that between August, 1900, and February, 1901 Jones, intending to defraud the United States, caused certain named persons (honorably discharged soldiers of the Civil War) to make fraudulent homestead entries on land within the Siletz reservation in Oregon, and thereafter to make false and fraudulent final proofs required by law. By an act of August 15, 1894 (28 Stat. 286-326), provision was made for disposition of certain lands within the Siletz reservation. Three years' actual residence was required where the settler made entry under and in accordance with the provisions of the homestead laws of the United States. Thereafter, by an act of May 17, 1900, c. 479, 31 Stat. 179 Congress relieved the entryman from having to pay $1.50 per acre as a prerequisite to obtaining patents, as had been required by the act of August 15, 1894, just heretofore referred to.

It is alleged that, in order to carry out the fraudulent design to acquire title and to procure the entrymen to make false and fraudulent applications, and pursuant to an agreement entered into between Jones and each of the entrymen, Jones gave notice, as required by law, of the intention of the respective entrymen to make homestead proofs upon the lands involved, and thereafter each entryman made formal proof at the land office; and in carrying out the plan each entryman with witnesses, falsely swore that he had established residence upon the land, and resided thereon until the time of proof, and had made substantial improvements thereon, had only been temporarily absent, had cultivated portions of land, and had not conveyed any part thereof, and had made no contract of any kind whereby the title which he might acquire should inure in whole or in part to the benefit of any person except himself; that he was acting in good faith in perfecting the entry, when in truth and fact he had not lived on the land and had not made improvements and had not cultivated any part of it, as stated in his proof, and that if any portion was cultivated it was done by Jones, and that any improvements were made by Jones and not by any of the entrymen; that none of the entrymen acted in good faith, and that each was making the entry for speculative purposes and not for a home; that none ever lived upon the land, and that no improvements were made upon any of the lands during the life of the homestead entries; that Jones paid all the money to the United States officers for the entries, and furnished proof witnesses, paid their expenses, and that in ignorance the officers at the land office at Oregon City, Or., issued certificates to each of the entrymen entitling him to receive a patent upon presentation of the certificate to the Commissioner of the General Land Office; that shortly thereafter each entryman made a mortgage to Jones; that thereafter the United States officials in Washington, in ignorance of the fraudulent character of the proofs, issued patents to the respective entrymen; that all the fraudulent representations made by the entrymen and their witnesses were made with the knowledge and at the solicitation of Jones, and with intent to deceive and defraud the United States out of the title and possession of the lands described, and that the United States relied upon the fraudulent representations, and was deceived in the premises, and unlawfully and wrongfully was induced to issue patents and part with the title; that the lands were worth $133,000, and that by reason of the fraudulent representations of Jones, and relying upon them, patents were issued.

The defendant, by answer, put in issue the allegations of the complaint and made four affirmative defenses: He set up good faith; that the cause of action accrued more than six years next prior to the filing of the complaint; that no one of the entrymen in his final proof represented or testified that he had resided upon the land for a period of three years. The fourth affirmative defense avers that one entryman named Wells paid $240 to the government in commutation of his entry. There is, too, a defense to the effect that several tracts described in the complaint were, before the beginning of the action, sold to certain named purchasers for full value, and who bought in good faith without notice of the alleged frauds or deceits.

The District Court sustained a demurrer to the defendant's plea of the statute of limitations, overruled the demurrers as to the other defenses, expressing no opinion upon the question of damages presented by the fourth defense. Replication was filed, and thereafter the District Court granted defendant's motion for judgment on the pleadings, and after judgment was entered accordingly, the United States sued out this writ of error.

Clarence L. Reames, U.S. Atty., and Barnett H. Goldstein, Asst. U.S. Atty., both of Portland, Or.

Fulton & Bowerman and Schwartz & Saunders, all of Portland, Or., for defendant in error.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

HUNT Circuit Judge (after stating the facts as above).

The entries described in the complaint were made under an act of Congress (28 St. 286, 326) and the amendments thereto (31 St. 179, 740) requiring, among other things, that three years' actual residence on the land 'shall be established by such evidence as is now required in homestead proofs as a prerequisite to title or patent. ' But the land department of the United States, acting under what is now conceded to have been a mistake of law, permitted eight of the entrymen to make proof of residences of from one to one and one-half years, respectively, and to deduct times of their respective military services from the required three-year period of residence. This error arose by applying to the entries upon lands within the Siletz reservation the provisions of sections 2304 and 2305, Revised Statutes (Comp. St. 1916, Secs. 4592, 4593), and the act of January 26, 1901, c. 180 (31 St. 740), which relate to commutation of homestead entries made by honorably discharged Union soldiers.

Inasmuch, then, as the requirements of the statute under which the proofs were taken and the patents issued could only have been properly met by proof of three years' actual residence on the land, the question arises: Is the United States precluded in this action from recovering damages although the entrymen in their final proofs did not say that they had actually resided on their lands for the required period of three years, yet did falsely swear that they had actually resided on the lands for certain times, though for less than the three years required; that they were making the entries for themselves when in fact they were making them for the benefit of the defendant, Jones; that they had made certain improvements which in fact they had not made; and that they had made their entries for the purpose of actual settlement and cultivation, when in fact they had not made them for those purposes.

By section 2290, Revised Statutes of the United States (Comp. St. 1916, Sec. 4531), a person applying for an entry of a homestead shall make affidavit that his application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not, either directly or indirectly, for the use or benefit of any other person.

In Anderson v. Carkins, 135 U.S. 483, 10 Sup.Ct. 905, 34 L.Ed. 272, the Supreme Court said: 'The theory of the homestead law is that the homestead shall be for the exclusive benefit of the homesteader. Section 2290 of the Revised Statutes provides that a person applying for the entry of a homestead claim shall make affidavit that, among other things, 'such application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not, either directly or indirectly, for the use or benefit of any other person.' And section 2291, which prescribes the time and manner of final proof, requires that the applicant make 'affidavit that no part of such land has been alienated, except as provided in section twenty-two hundred and eighty-eighth,' which section provides for alienation for 'church, cemetery, or school purposes, or for the right of way of railroads.' The law contemplates five years' continuous occupation by the homesteader, with no alienation except for the named purposes. It is true that the sections contain no express prohibition of alienation, and no forfeiture in case of alienation; yet under them the homestead right cannot be perfected, in case of alienation, * * * without perjury by the homesteader. Section 2304 makes provisions for homesteading by soldiers and officers who served in the army of the United States during the recent war; but that section makes no substantial change, except in respect to the time of occupation. Under this section Anderson perfected his homestead right; but the question of the length of occupation required to perfect such right in no manner affects the controversy. The same affidavits in respect to alienation are required from federal soldiers as in other cases of homesteads.'

In Adams v. Church, 193 U.S. 510, 24 Sup.Ct. 512, 48 L.Ed. 769, the Supreme Court, referring to the oath required from the entryman that he has not alienated any interest in the land, except as provided in section 2288, R.S. 2291 (Comp. St. 1916, Secs. 4535, 4532), said that the policy of the government in requiring...