STATES V. WH1'rE.
UNITED STATES V. GEO. SAUE V. WU. SAME V. JOHN SAllIE V. TUTTLE
July 30, 1883.)
(Circuit Court, D. California.
The United States courts have jurisdiction to vacate a patent to lands, in a proper case, on the l:"round of fraud.
FItAUD IN PnOCUItING PATENT.
The frauds for which courts will set aside a pntent, granted oy tile United States in the regular course of proceedings in the land-ottice, are frauds extrinsic or collateral to the matter tried and determined, upon which the patent issued, and not fraud c9nslsting of perjury in the matter on which the determmation was made.
AND FALSE TESTIMONY.
Perjury and faloe testimony in the proceeding, by means of which a patent is secured by fraud, is not fraud extrinsic or collateral to the matter tried and determined in the land-ottice, within the meauing of the rule, and a patent will not llC set aside on tllat ground alone.
'Where no pecuniary injury to the United States is shown by the hill, anii it does not appear that there is any other right In the land against the government, whether a court of equily should set ashle a patent ootained on false testimony, if otherwise proper, qUeue. 5.
RETUH:K OF PUIWIlASB MONEY.
Where the United Stales tiles a hill to set aside a pntent, on the ground that it was obtained upon rabe te.,timony, it should at least oller to reLUl'n the purchase money paid by the patentee for the land.
When the United States comes into a court of equity asking equity like a private person, it should do equIty. Court-; of equity never enforce penalties or forfeitures.
.If Ihe Unitd oy sectIOn 22(j2 fal-e atlidavits, charged \\'111 be
Siales desires to enforce the penaltieq and forfeitures imposed of Ihe Hcviscd Statutes, for obtaining a patent to land upon it mnst do so by a pl'oper proceeding at iaw, where the party enlil.ed to a trial of the charge oy a jury.
In Equity. A. P. Van Dnzcr, fo: the United States. L. D. Latilller and Barclay Henley, for defendants. SAWYER, J. The first of these cases, U. S. v. Geo. E. JVhite, is a bill in equity to vacate a United States patent, issued to the defendant on the ground that it was obtained upon false and fraudulent affidavits and proofs, made under the pre-emption laws. It is alleged that on May 6, 1876, the defendant filed a declaratory statement under the pre-emption laws upon a quarter section of land v.l'i,l1o.7-3 t !
situate in Humboldt county, described in the bill, and an affidavit stating that he had settled upon the land on November 5, 1873, and resided thereon ever since; that he had cultivated a portion as a garden, built a fence around about an acre, and built a house 9 by 12; that the improvements were of the value of $100; and that he was Jt the owner of 320 acres of land elsewhere. It is further alleged that he paid the sum of $200, and thereupon, and upon the making of said proofs, a certificate of purchase, in due form, was issued to said defendant; and afterwards, in pursuance of said certificate of purchase, a patent was issued on December 13, 1876. It is further alleged, upon information and belief, that said affidavits and proofs were false; that defendant did not make the settlement as stated; did not reside upon said lands; and that he did own 320 acres of land elsewhere. And on the grounds of these false representations and proofs the complainants ask that the patent be vacated and canceled, and that the money paid be adjudged forfeited to the United States. There are numerous cases wherein the supreme court of the United States has said, in general terms, that a patent might he vacated for fraud on a bill of equity filed by the United States; as Moore v. Bobbins, \:)6 U. S. 533; Shepley v. Cowan, 91 U. S. 330, and numerous others too familiar to require citation. There can, therefore, be no question as to the jurisdiction of the court to entertain such a bill where a proper case is presented. But it was never determined what kind of frand, or in what form perpetrated, would furnish a proper case for the relief sought in this case, till the cases of U. S. v. Flint and U. S. v. Throckmurton, in this court, 4 Sawy. 51-53, affirmed in U. S. v. Throckmorton, 98 U. S. 68. These were cases wherein a petition was filed under the act of 1851, before the board of land com· missioners, for confirmation of a Mexican grant, which had been contirmed. It was alleged in the bill that the grant presented was a fraud; that it had been fabricated in Mexico after the transfer of California to the United States; that the frand was concealed from the goyernment otncers and the board of land commissioners; and that the confirmation was obtained upon false and perjured testimony. On these grounds it was Haught to vacate the patent in the first case, and the cOl1firma,tion in the second, and annul the titles. But the court decided that the confirmation could not be vacated, on the gronnd that it was obtained wholly upon false and perjured testimony, or for the palpable frauds alleged. The court held (affirming the views expressed by the circuit court in 4 Sawy. 51-53) that the hanch; for which the judgments of tribunals could be impeached, are "frauds extrinsic or collateral to the matter tried by the first court," and do not extend "to a fraud in the matter on which the decision is rendered." Said the court, after citing and commenting on the authorities:
" We think these decisions establish the doctrine on which we decide the present case, namely, that tlte acts for which a court of will on account
'UNITED STATES V. WHITE
of frand set aside or annul a jl1llgmellt or decree, between the same parties, rendered uy a court of competent jurisdiction, have relation to frauds extrinsic or collateral to the matter tried uy the first court, and not to a fraud in the matter on which the was rellllereel. "That the mischief of retrying every case in which the judgment or decree rendered on false testimony, gi vea by l'e,'jureu witnes,ie3, or on tontracts or documents whose genuineness or v:didity was in issue, and which are afterwards ascertained to ue forged or fraudulent, woul'l he greater, by reason of the endless natnre of the strife, than any c01npellsatiun arising from doing justice in individual cases." 98 U. S. 68.
The l5ame rule was adopted in Vance v. Burbank, which also went up from this circuit, and the principle applied to the decision OIl a question of residence and of fraud decided by the United States landoffice, where one private party songht to control, for his own use, the title granted to another, upon alleged frauds practiced while obtaining the patent. Said the court, by the chief justice:
.' The appropriate officers of the land department have been constituted a sp'ecial tribunal to decide sneh qnestions, and their decisiuns are final to the same extent that those of othel' jndicial or quasi judicial tribunals are. "It has also ueen settled that the fraud in respect to which relief will be granted in this class of cases mnst be such as has been practiced on the unsuccessful party, and prevented him from exhiuiting his case fully to the department, so that it may properly ue said there has never been a decision in a real conte.,t auout the sUhject-matter of inqniry. False testimony or forged documents even are not enough, if the dispute'l matter has actnally been presented to or consielered by the appropriate triuullal. U. S. v.1'h1'ockI.'I01'toll, 98 U. S. 61; JIa1'quez v. Frisbie, supra. The decision of the proper o1Iicers of the department is in the nature of a judicial determination of the matter in dispute. "The operative allegation in this bill is of false testimony only. * * Xo fraud is chargeel on the register and receiver, or on the heirs of Perkins in respect to the keeping back of evidence." Vance v. Burbank, 101 U. S. 519.
Thus the decisions of the land-office on applications for patents were put upon the same footing as judgments and decisions of courts and other tribunals like the board of land commissioners. The only difference between this case and the others is, that in the first, the United States, and, in the other, the complainant, actually appearedthe United States not appearing-and were heard., while in this, the United State8 did not formally appear as a contestant. But the principle is the same, only the mode of proceeding being different. In the Flint and Throckmorton Cases, the claimant, 11l1der his grant, the treaty with :JIexico, and the statutes of the United States, petitioned the board for a confirmation of his grant. In this, the purchaser. undor and in conformity to the statutes, applied to the land-office for lea,e to purchase, as did the party in Vallce ,. Burbank, and the land-office, representing the United States, in due form heard the proofs and determined the question of the right to purchase. In Vance v. Burbank the complainant intervened in fact, as he had a right to do under the law, and contested the right of his opponent.
But the United States was not a party in any sense other than as a party in this case. So, in the present case, anybody claiming an adverse interest had a right to intervene, but nobody seems to have done so. The proceeding was in the nature of a proceeding in 1'em, of which everybody tal,es notice. The hearing was regularly had, and decided in favor of tbe a}Jplicant, White; and the only fraud, if any there was, was "in the matter on which the decision ,vas rendm'ed," and not "extrinsic or collateral to the matter tried" and determined in the land-office. The action of the land-office is judicial in its nature. Smelting Co. v. Kemp, 104 U. S. G40. I can perceive no good reason why the principle should not apply to this case as well as to the others, and especially to the case of Vance v. Durhank. That is the logical result of the principle established by the decisions cited, and I think the principle sound, and, upon the whole, safe. Again, it is a principle that, with reference to private parties, a court of equity will not grant relief against a fraud, unless it appears that some damage or injury has been sustained by reason of the fraud; for "courts of equity do not, any more than conds of law, sit for the purpose of enfon:ing moral obligations or correcting unconscientious acts which are followed by no loss or damages." 1 Story, Eq. JUl'. 203. And when the United States enters the court as a litigant, "* * * it stands upon the same footing with private individuals." U. S. v. Throckmorton, 4 Sawy. 43. It does not appear that the United States has been pecuniarily injured by the alleged fraud. Ko injury or damage is alleged, or in any way shown. 'I'he land was for sale to any dnly-autllOrized preemptioner, at $1.25 per acre. Defendant paid the full amount of the purchase money, and it ,vent into the United States treasury. The government got all that it would haye obtained from any other party. It does not appear that anybody else had any rights, or wanted to purchase, or tbat the United States was under any obligation to patent the land to any other person. There is no possible })ecuniary injury to complainant. The most that can be said is that a principle of public policy was violated, and thereby a moral wrong resulted by reason of the legal disqualification, under the pre.emption act, of defendant to purchase. But the wrong was only malum prohibitum, not malum per see It is by no means clear that the demurrer ought not to be sustained on this ground, but it is unnecessary to so decid.e now, for, in my judgment, it is not a case to be taken out of the rule established in tlle cases cited of Throckmorton and Vance. In ,iew of the notorious liberality in fayor of purchasers, not to looseness, with which the pre-emption laws huYe, ever since their adoption, been administered all oyer the western states, to relax the rules referred to in the authorities cited, especially where no actual }Jecuniary damage or injury has resulted either to the government or private parties, and "retry eyery case in which" the action of the land-office, as '\Vell as "judgments or decrees rendered on false testi-
tlNITED STATES V. WHITE.
mony given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent," would open a Pandora's box: of evils "far greater than any compensation arising from doing justice in individual cases." It would open the door to any party stimulated by malice, or other unworthy motive, who could, upon ex parte and false statements, obtain the ear of the attorney general to promote suits in the name of the United States, to the great vexation of honest, as well as dishonest, pre-emptors, and to the great detriment of the public peace and prosperity. Again, the claim is stale. Although statutes of limitation do not run against the government, yet the staleness of the claim may be taken into consideration in determining the question whether a COLEt of equity should interfere and grant relief where the United States, as well as a natural person, is a complainant. When the United States comes into a court of equity as a suitor, it is subject to the defenses peculiar to that court. U. S. v. Tichenor, 8 Sawy. 15u; [So C. 12 FED. fiEP. 449;J U. S. v. Flint, 4- Sawy. 58-9; BHlgcr I. Badger, 2 'Vall. 94; Stcarns v. Page, 7 How. 829. Under the state law this suit, if between private parties alone, would be barred within three years. Manning v. San Jacinto Tin Co. 7 Sawy. 430; [So C. 9 FED. HEP. 735.J Six years elapsed betwecm the issue of the patent and the filing of the Lill, and no averment is made to show that the fraud was not discovered, or by the exercise of ordinary diligence in the land-office might not have been discovered, immediately aftor its consnmmation. The money received is retained, and no tender appears to have been made, nor is any offer to refund the money made in the bill. The United States, like an individual, when it comes into court and demands equity, must do equity, or at least offer to do equity. It has receiVEd the full value of the land in monoy-the samo alllount that it 'would have receiled had the land been sold and to an admittetlly qualified purchaser. It cannot keep tho money, and, in a court of equity, demand and receive a return of the land. To meet this point, and as a basis for a decree for forfeiture of the money as a part of the relief demanded in the bill, the United States attorney relies on section 22G2, Rev. St., which provides that "if any person taking such oath swears falsely in the premises, he shall forfeit the money which he may haye paid for such land, anJ all right and title to the same." This is highly penal, and the only remedy, or rather punishment, other than an indictment for perjury, that appears to be proYidecl by law for the wrong s01l3ht to be redressed. But the United States has come into the wrong forum to enforce this penalty. "It is a uniyersal rule in equity neYer to enforce either a penalty or forfeituw." 2 Story, Eq. JUl'. §§ 1319, 14!.l4:, 1509. So a bill of will not in a Cflse in,olves a penalty or forfeiture. ld. As an answer on oath is not
waived, this bill is, in that particular, a bill of discovery, and demurrable on that ground also. If the United States desires to enforce the penalties-the forfeiture of the money paid and the land putented-provided for in section 2262, Rev. St., cited, it must proceed in some appropriate mode at !:1w, where the defendant will be entitled to a trial by a jury of the question as to giving false testimony. In mj.judgment the demurrer should be 6ustained and the bill dismissed; and it is 80 ordered.
and others v,
CHARTER OAK LIFE
(Circuit Oourt, D. Iowa.
TIEVfEw-TDIE OF FILING. A bill of review for errors apparent upon the face of the record will not lie after the time within which a writ of error could be brought. Where it is not made to appear that complainant was prejudiced by a supplemental decree, relief hr injunction cannot be granted because of matters contained in such decree.
SAME-PARTIES BOUND BY HECORD.
Th!, parties to a suit in equity are bound by matters of record, and cannot be heard to complain that they were not adviseu of the contents of a decree passed in such suit, in time to appeal therefrom or take other steps to have such decree set aside or reversed.
In Equity. Cole cC- Cole, for complainants. Nourse J; Kauffman, for respondents. MCCRARY, J. So far as the original decree is concerned, this is a bill of review, brought for the purpose of reversing or modifying said decree, by reason of errors appearing upon the face thereof. These errors are stated in the bill to be(1) In this, that interest was calculated upon the several bonus sneu on at the rate of '10 per cent. per annum, whereas, under the laws of Iowa, said complainants were not entitled to any interest thereon, because of the fact that there was usury embraced in the said seyeral bonds. (2) In tbat Ly the laws of Iowa the said Tavlor and wife were entitled to haye said real estute 80111, subject to thdr riglit to rel!eem the same at any time within one year after the sale. anll said decree did not resen-e this right, whereby they ,,-ere greatly prejlHliced.
It is insisted bv the defense that this bill of review, considered as a bill to modify annul the original decree, is filed too late. This position is manifestly well taken. A bill of review is in the nature of a writ of error, and its object is to procure an examination or alteration or reversal of the decree made upon a former bill which has been signed and enrolled. Story, Eq. PI. § 403. "A bill of review for errors apparent upon the face of the record will not lie after