United States v. Pitan

• Decision Date: 07 July 1915
• Citation: 224 F. 604
• Parties: UNITED STATES v. PITAN et al.
• Court: U.S. District Court — District of South Dakota

224 F. 604

UNITED STATES v. PITAN et al.

United States District Court, D. South Dakota, Southern Division.

July 7, 1915

Robert P. Stewart, U.S. Atty., of Deadwood, S.D.

Bartine & Bartine, of Oacoma, S.D., for defendant Carl Pitan.

ELLIOTT District Judge.

This is an action at law to recover damages upon a complaint filed by the plaintiff herein, alleging in substance:

(1) The jurisdictional facts.

(2) That on the 10th day of May, 1902, plaintiff was the owner and in possession of the quarter section of land therein described, the same being public lands of the United States part of the public domain, and subject to entry and open to settlement under the homestead laws of the United States.

(3) That on or about that date the defendant Henry presented to and filed in the local land office of the plaintiff at Chamberlain, S.D., her homestead application to enter said land under the homestead laws of the United States, and filed her homestead affidavit, in the usual form, in substance that her entry was made for the purpose of actual settlement and cultivation, and not for the benefit of any other person or persons; that she was acquainted with the character of the land; that she was not acting as the agent of any person in making such entry, nor in collusion with any person, to give such person the benefit of the land entered; that she did not apply to enter said land for the purpose of speculation, but in good faith, to obtain a home for herself; that she had not directly nor indirectly made, and would not make, any agreement or contract in any way or manner with any person or persons by which the title which she might acquire thereto from the United States would or should inure in whole or in part to the benefit of any person except herself, and then and there paid the land office fees required by law, and received a receiver's receipt therefor, and her application to enter such land as a homestead was then and there duly granted.

(4) That on the 27th day of May, 1903, she filed notice of intention to make commutation homestead final proof upon said land, and the register of the land office duly designated July 13, 1903, as the time for making said final proof, and notice thereof was duly given in the manner provided by statute, rules, and regulations.

(5) That on said 13th day of July, 1903, defendant Henry made commutation cash entry for said land, and duly executed the affidavit required under section 2301, Revised Statutes of the United States (Comp. St. 1913, Sec. 4589), and paid the sum of $80, the purchase price of said land, and received receiver's receipt for said commutation homestead entry dated on that date. She also filed nonmineral affidavit, and testified in support of her said homestead entry for said lands, and the complaint alleges that the defendant Carl Pitan appeared as a witness in support of such entry, and that defendant Henry, by her commutation final proof made and caused it to appear by the testimony of herself and corroborating witness, including the defendant Pitan, under oath, in substance, that she had erected a frame house upon said land, consisting of a 10x12 foot house, with floor doors, and windows; that she had made valuable improvements upon said land, of the value of $200; that she had resided continuously upon said lands for the full period required by law, with the intention of making it her home, and without absence, from the 26th day of September, 1902, to the date of final proof; that she had not sold or contracted to sell the same, or any part thereof, and was the bona fide owner thereof; that it was made to further appear, under oath, by the testimony of the defendants, that neither the said Carl Pitan nor any other person was interested in said homestead, and that the defendant Henry was acting in good faith in perfecting her said homestead entry; that she had not made said entry for the purpose of acquiring a homestead for the use and benefit of any other person, and had not acquired the same under any agreement whereby the title she might acquire would or should inure to the benefit of any other person.

(6) That thereafter, on the 14th day of March, 1904, there was issued and delivered to the said defendant Carl Pitan, by the local land office, at his request, a patent from the United States of America, in due and regular form, conveying to the defendant Henry the legal title to said lands, which patent was filed in the office of the register of deeds of the county in which the lands are situated January 27, 1906.

(7) That the defendant Henry conveyed, by warranty deed, the said lands embraced within the said homestead entry, to defendant Carl Pitan July 13, 1903, and such conveyance was duly filed and recorded in the office of the register of deeds of the county in which the land was situated February 26, 1904.

(8) That said lands embraced within said homestead entry were thereafter, by the said defendant Carl Pitan, duly conveyed unto Emil Wilskie, and he ever since has been and now is in the possession thereof.

(9) The complaint further alleges, in substance, that the statements representations, and testimony of the defendant Henry, contained and set forth in her said application to enter said land and her said homestead affidavit, and the statements, representations, and testimony made and subscribed by her upon her said commutation final proof, and the statements, representations, and testimony of the said Carl Pitan, as one of the witnesses in support of the homestead entry of said defendant Henry, were and are wholly false, fraudulent, and untrue, and were made and caused to be made by the defendants Henry and Pitan for the purpose of deceiving the plaintiff and its officials as to a material inquiry then and there pending, and that such representations and testimony were given, made, and subscribed without any belief on the part of the defendants Henry and Pitan that such statements and testimony were true; that the same were false, fraudulent, and untrue, and that in fact and in truth the defendant Henry was not familiar with the character of said land; that she had not in truth and in fact erected a frame house upon said land, but that the same was erected by the defendant Pitan at his own expense; that defendant Henry had not fenced said lands, but the same had been fenced theretofore by the defendant Pitan; that the defendant Henry had not made valuable improvements on said lands of the value of $200, or of any value; that she had not resided continuously, or at all, upon said lands during the period required by law, or at any time; that she had been absent from said lands continuously during the period required for her residence by law, with the exception of occasional visits to said land, for about the period of one week in September, 1902, and one week in February, 1903, and for about four days prior to the making of her said commutation final proof; that said statements, representations, and testimony were false, fraudulent, and untrue, in that defendants Henry and Pitan, prior to the filing of said homestead application...