United States v. Norris

• Decision Date: 31 March 1915
• Docket Number: 4089.
• Parties: UNITED STATES v. NORRIS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

222 F. 14

UNITED STATES v. NORRIS et al.

No. 4089.

United States Court of Appeals, Eighth Circuit.

March 31, 1915

[Copyrighted Material Omitted]

T. G Chambers, Jr., Asst. U.S. Atty., of Oklahoma City, Okl (Isaac D. Taylor, U.S. Atty., of Guthrie, Okl., on the brief), for the United States.

C. G. Horner, of Guthrie, Okl., for appellees.

Before SANBORN, Circuit Judge, and TRIEBER and REED, District Judges.

REED District Judge.

The United States brought this suit to cancel and set aside a patent issued by the government to the defendant Edwin K. Norris, December 31, 1903, in commutation of a homestead and settlement entry upon 160 acres of government land in Woodward county, Okl., to a cash entry, which patent it is alleged he obtained by false testimony produced by him before the local land office as to the time of his occupancy of the land and the improvements made thereon by him.

The original bill was filed August 16, 1909, and alleges that Norris was not then a resident of Oklahoma, but a citizen of and resident in the state of Texas. The suit was obviously brought under section 8, c. 137, Act March 3, 1875 (section 738, Rev. St. U.S.), to establish an equitable title or claim to the land. Upon application of the complainant an order was issued by the court on the same day, August 16, 1909, requiring the defendant to appear and plead, answer, or demur to the bill on or before October 4, 1909. This order was served on Norris by the United States marshal at Ft. Worth, Tex., September 7, 1909. The record does not show what further was done under this order. On August 1, 1911, the complainant filed a second amended bill against Norris and A. L. Rounds as defendants, in which it is alleged that Norris fraudulently obtained the patent to the land December 31, 1903, as alleged in the original bill; that both defendants are nonresidents of Oklahoma and reside in Texas. It is then alleged that on June 14, 1909, Norris made a pretended conveyance of the land to the defendant Rounds for a pretended consideration of $3,000, for the purpose of preventing the complainant from recovering such land from him, and that defendant Rounds knew of the fraud perpetrated by Norris in obtaining the patent for and title to the land. What the first amended bill was, or what disposition was made of it, does not appear from this record. On August 2, 1911, upon application of the complainant, an order was issued by the court requiring the defendant Rounds to appear and plead, answer, or demur to said second amended bill on or before the 4th day of September, 1911; that being the September rule day, 1911. This order was served upon the defendant Rounds by the United States marshal August 12, 1911, at Ft. Worth, Tex.

Pursuant to this order Rounds appeared and filed a demurrer to the second amended bill for want of equity, and upon the further ground that as to him the cause of action alleged therein accrued more than six years prior to the filing of said amended bill and the issuance of said order, and was barred by the statute of limitations. On August 29, 1912, Norris moved to strike from the files the second amended bill, for the reason that the same is not germane to the original bill and not proper as an amended pleading. On the same day, August 29, 1912, this motion, and the demurrer of the defendant Rounds, were each overruled, to which the defendants severally excepted, and each was then granted until September 10th to answer the bill.

The defendants separately answered this bill-- the defendant Norris admitting that he obtained the patent for the land on December 31, 1903, as alleged, but denying all fraud upon his part in procuring the same; and defendant Rounds answered, admitting the issuance of the patent to Norris on December 31, 1903, and alleging that he purchased the land of Norris on June 14, 1909, for $3,000, paid by him in good faith to Norris therefor, $500 of which was in cash, and $2,500 by note secured by a vendor's lien upon the property, without any knowledge or notice upon his part of the alleged fraud of Norris in obtaining the patent, and that Norris at the time of such purchase made and delivered to him a warranty deed of said land, which was duly recorded in the office of the register of deeds of Woodward county, Okl., on June 16, 1909, and again alleged that as to him the cause of action accrued more than six years prior to the filing of said amendment, and prior to the time he was made a party to the suit, and is barred by the statute of limitations. The general replication was not filed, but no question is raised because of this.

The case then came on for hearing upon the testimony of the complainant alone, neither defendant offering any testimony, and the court, upon April 7, 1913, made and entered a decree as follows:

'First. That the plaintiff had established the allegations of the bill that the defendant Edwin K. Norris failed to reside upon or cultivate the tract of land in controversy as required by law prior to final entry.

'Second. That the plaintiff has failed to establish that the defendant A. L. Rounds had notice and knowledge thereof, or that the said defendant purchased and acquired title to said land from said Edwin K. Norris in bad faith, and that the title of the defendant A. L. Rounds to said land should be and it is hereby quieted and confirmed, to which the plaintiff excepted and excepts.

'Third. That the plaintiff have and recover of the said Edwin K. Norris the price at which said land may be sold to homestead claimants, to wit, the sum of two hundred dollars ($200), together with the costs of this suit, which are taxed to and against the defendant Edwin K. Norris, to which Edwin K. Norris at the time excepted and excepts, and to which the plaintiff also excepted and excepts.'

From this decree the complainant appeals, and assigns as error that the court erred:

(1) In holding that it was incumbent upon appellant to establish by proof that defendant Rounds purchased and acquired title to the land from Norris in bad faith, and in confirming and quieting the title to the land in Rounds.

(2) In holding that appellant was entitled to recover from Norris only $200 upon finding that he procured the patent fraudulently, and in not holding that appellant was entitled to recover from Norris $3,000 as the value of the land, upon decreeing that Rounds was a good-faith purchaser thereof.

The testimony in the record as to the alleged fraud of Norris in procuring the patent is quite meager; but in the absence of any testimony to the contrary, or of an appeal by either of the defendants, the decree cannot rightly be disturbed upon this ground.

The appellant offered no proof as to the alleged bad faith of Rounds in his purchase of the land from Norris, and contends that, having shown that Norris procured the patent by fraud, as held by the trial court, the burden then rested upon Rounds to show the good faith of his purchase, and that this he must do by testimony other than the recitals of his deed from Norris. This contention of the appellant, we think, must be upheld. Smith v. Sac County, 11 Wall. 139, 147, 20 L.Ed. 102; Wright-Blodgett Co. v. United States, 236 U.S. 397, 35 Sup.Ct. 339, 59 L.Ed. . . ., and the cases there cited, wherein it is held that the recitals of a deed are insufficient to prove the payment of a valuable consideration without notice of the alleged fraud. The court therefore erred in confirming the title to the land in Rounds upon this ground, and unless the suit is barred by the statute of limitations, or appellant is otherwise estopped from maintaining the suit, the decree as to Rounds is erroneous.

The state statute of limitations does not, of course, bar suits of the United States brought in their own courts in their sovereign capacity to assert a public interest or to enforce a public right. United States v. Thompson, 98 U.S. 486, 25 L.Ed. 194; United States v. Insley, 130 U.S. 263, 266, 9 Sup.Ct. 485, 32 L.Ed. 968.

But section 1 of the Act of March 3, 1891 (26 Stat. 1093, c. 559), provides:

'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.'

This section in terms applies to all suits by the government to vacate and annul patents to public lands issued under any law of the United States. United States v. Winona & St. P.R.R. Co., 165 U.S. 463, 475, 17 Sup.Ct. 368, 41 L.Ed. 789; United States v. Chandler-Dunbar Co., 152 F. 25, 28, 81 C.C.A. 221, affirmed 209 U.S. 447, 450, 28 Sup.Ct. 578, 52 L.Ed. 881. As to Norris the suit was commenced within six years from the date of the patent, and is not therefore barred by the statute of limitations. See Linn & Lane Lumber Co. et al. v. United States, 236 U.S. 574, 35 Sup.Ct. 440, 59 L.Ed. . . . .

As to Rounds the suit was not commenced until the filing of the second amended bill, which was August 1, 1911, and the issuance of the warning order, so called, upon that bill August 2, 1911, with the bona fide intent that it be promptly served. United States v. American Lumber Co., 85 F 827, 29 C.C.A. 431, and cases cited. This was seven years and seven months after the patent was issued. There is neither allegation nor proof of any concealment on the part of Rounds of his purchase of the property, nor of any other fraud on his part to delay the commencement of the suit against him until the statute of limitations had run. The bill avers that his purchase of the land from Norris was on June 14, 1909, and that the deed to him was filed for record in the office of the...