United States v. Koleno

• Decision Date: 04 September 1915
• Docket Number: 4095.
• Parties: UNITED STATES v. KOLENO et al.
• Court: U.S. Court of Appeals — Eighth Circuit

226 F. 180

UNITED STATES v. KOLENO et al.

No. 4095.

United States Court of Appeals, Eighth Circuit.

September 4, 1915

Charles L. Rigdon, U.S. Atty., of Cheyenne, Wyo. (David J. Howell Asst. U.S. Atty., of Cheyenne, Wyo., on the brief), for the United States.

Clark &amp Clark, of Cheyenne, Wyo., for defendants in error.

Before SANBORN, ADAMS, and SMITH, Circuit Judges.

SMITH Circuit Judge.

This is a suit at law to recover of the defendants the alleged value of certain land patented by the United States to defendant Lewis Koleno, on June 30, 1906, under the timber and stone law. Act June 3, 1878, c. 151, 20 Stat. 89.

The petition alleges that the defendant Koleno was a minor and ineligible to make the entry for that reason at time of the entry of said land, that his witnesses were the defendant Samuel Joss and one Clara M. Joss, that on the date on which proof was made on said entry, to wit, March 9, 1906, the said Lewis Koleno, in pursuance of a previous agreement, did convey the land to said Samuel Joss, that said lands were chiefly valuable for grazing purposes and a part of them for agricultural purposes, and they were obtained from the government by false testimony of the defendants Koleno and Joss. It is further alleged that the defendant Joss mortgaged this land with others on October 7, 1911, to George W Metcalf as security for $19,760, and the petition prays that the government recover the value of said lands at the time of the patent, which is alleged to have been $650.64 and costs.

A demurrer was filed:

'That said petition does not state facts sufficient to constitute a cause of action against these defendants.'

This demurrer was sustained, and, the plaintiff failing to plead over, the case was dismissed, and the United States sued out this writ of error. The demurrer being upon the ground that the petition did not state facts sufficient to constitute a cause of action against the defendants, it becomes important to first ascertain, if possible, what defense was relied on by the defendants and by the district court. In their brief appellees say: 'The demurrer was presented to the court below, and we assume was sustained by that court upon two grounds: (1) That the necessary result of the suit to recover the value of lands fraudulently acquired is the ratification of the patent, and Congress has never authorized the Attorney General or any other officer to so bind the government. (2) That it cannot be presumed that Congress, which has enacted a statute of limitation upon suits in equity to recover the land itself, has intended that there should be any recovery of the value of the land by action at law, the prosecution of which would never be barred.'

The brief continues:

'It cannot be contended, of course, that the federal government does not have all of the legal rights of any individual providing the statutes permit of their exercise, and among such rights of course is the right to recover by an action at law the damages sustained through fraudulent acquisition of public lands and the alternative right, at the option of the government, to recover the lands by suit in equity. But undoubtedly the government in the exercise of any such legal right is bound by the same legal rules as are applicable to any private individual, and one of these rules is that any person who has been fraudulently deprived of property and who elects to recover by an action at law the damages sustained thereby, instead of recovering the property itself, is conclusively presumed to ratify the transaction and cannot thereafter recover the property itself.

'It is our contention that neither the United States district attorney nor the Attorney General, nor even the President himself, has the power to assent to a fraudulent transfer of public lands; that the title to public land can be acquired, as has been frequently determined by the federal courts, only by compliance with the public land laws or through the action of the statute of limitations; and that no administrative or executive officer can bind the federal government by assenting to the transfer of public lands in any manner not expressly authorized by the public land laws.'

Generally the statute of limitations does not run against the United States. United States v. Knight, 14 Pet. 301, 315, 10 L.Ed. 465; United States v. Throckmorton, 98 U.S. 61, 64, 25 L.Ed. 93; and numerous other decisions. Congress, however, passed two statutes in the following form:

'Sec. 8. That 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. ' Chapter 559, Acts 51st Congress, 26 Statutes, 1093; Chapter 561, Acts 51st Congress, 26 Statutes, 1095, 1099.

The present concern is, not whether this would operate as a limitation upon an action by the government for damages for deceit, but whether the government had an action for deceit before this statute was passed, but which should be denied it since its passage even within the period fixed for bringing suit to annul the patent. This statute was strictly one of limitation and did not create the right to maintain an action to set aside the patent. Patents procured from the United States by fraud were never void, but voidable (Moran v Horsky, 178 U.S. 205, 20 Sup.Ct. 856, 44...