D.WQsMnQt.on. April 7, 1891.)
.... . '::.:"'j ": i Ji'tlB:r,xOLAND-;PA,'l.'ENT-CA,'-OELLATION.. "
:/; t ,.
ill a suit to cancel a patent'to public land entered I\S timber land 1t apthat the land WlIsnot infactun1i't till' cultivation, III!ld ohiefly.valuable for its timber, and therefore not subjeot to entry as timber'land, yetif ,the patent does no\ show that the government in issuing it relied upon tbe representation that It was ,t;.m1;ler land, the title wiUbe' protecwd iul'the hands of'a bona jidepurcbaser. .
p.·. ,O. Sullivan, Asst. U.S. Atty. ' ,
, Ie hikerl8'and ,J.P. Oa88,for'defendants.
HANFORD, J. This is a suit brought by direction of the attorney general <lUbe United States to obtain a decree canceling a patent for a tract of lana issued in the year 1887 to the .defE!ndant, John P. Scholl, who of it alJtimbel' land under the act of June 3, 1878, the entryanclproqfsbeing made in the year I883.·The testimony satisfies me thatdhe, land is not in fact chiefly valuable for timber, and for that reason notsubject to entry under the provisions 'of the statute providing for the sale'oftimberlatid;and,if; the,suitwereb'tought against the orig-' inal· entryman or i patentee of the government, the relief prayed for should be granted. Several transfera of the title, however, have been made;' The'pl'esentowners of the laud bought.itafter, the patent had issued. Theybonght,it from the appllrent owners ofa 'petfeot legal title. and there would be no equity, ,it,seemstO'me; in imposing upon them the entire loss of the, property and the purooasa'money which they have paid for it. The stAituteunderwhich the entry, was made contains a provision that, if 1illse·representlltions are'made in acquiring title, the entryman shall forfeittbe money whichhe;pays, and 'all his right, litle, and interest to the: land.' It also provides that every conlfeyance that he makes orthe Itmid:'shalLbe- void, except lllJ,il'Il;a.inst bonafide purchasers,<recog- ' nizing' the priMiple of 611uity that: the purchaser of a ,legal title for a ' va}uable;oonsid:eration,:witbout notice ohnyoutstanding equitable claims ta-':protection to-the extent that equity against the property, will not enforceamerelyi equitabler;ight 'against his legal title. The testimoriyvery fully makes out the defense as,set "p'here of a bonafide pur.' chase' bythepresenfowli1er. It is insisted by the attorney for thetJnited the land'itself shows that it was not of the character.,coritemplated:in:the act 'oif!'c@ugteSsprovidihgfor the sale bf;' land, and that a purchaser. .supposed to know from' j the appearance of the land that the entry was fraudulent, and that the patent was obtained by fraud, and therefore chargeable with notice. But I find that the patent which was issued for this land does not purport to have been issued under the act of June 3, 1878, and it does not Elhow that the government was relying upon any representation that the land was chiefly valuable for timber and unfit for cultivation. The pat-
,UNITED, mATES'/); PERRY.
ent recites that the land had been purchased and paid for under the act of April 24, 1820,-the gerteral:8tatute of the United States providing for the sale of public 1.:1nqer the direction of the president, -and a person who would examine the 'Patent itsalf would not' be l\pprised from it that the question of whether the land was agricultural or timber land had anything fu" do with the title. , ", ,,For' these the, defendants' are to a decree dismissing the bill. ' , ' ,
UNITlCD, STA,'tEs· 11. PERRyet
D.WaBMnl1ton., April 7.1891.) ,
A homestead' patent issued under Rev. St. U. 8. § 2291, will be canceled in" direct proceeding against the original patentees for that purpose, where there, was no actual residence for five years by the persOll·who entry, nor by her heirs after her death, upon the land prior to the iS8Mnce ot aD+! the proofs in the land-office on which the entry waS' allowed only show that the person J;llaking the original ap,Plication to enter it as a homestead lived on it for only three or. foUr'months ,:was ,taken no r.esidence,o,," the land by, the "i , ., ' ' , " "
,In,Equity. .'" P. O. Sullivan, J,U$t. U.S. Atty. R. Williamson, for,derJililant8.
HANFORD, J. '; This W to can-ceIa pa:tent iss'qed under the prosuit visiops of section 2291,' ReV St. U. 8";, part of the act of congress known , The object cjf this law was to grant land ,to!tctual settlers. for use .as homesteads, and to ericourage tbe settlement, cultivation, a'nd improvement ofthe public-domain. It sary, to obtain a validtitltl under this law; 'that thet'eshall have been an actualsettlemeht on the la:nd and a continuous residence and cultiV'ation theteof for at least five years. Tbe proMs'tAkEm in' this case d tuing the proqee(ijqgs in court cle&rly show tbatthere wail residenee!by the person who made the original entry, t,lor by ber beirs after her upon the land prior to the issuance of the patent; and the proofs taken. in th¢ land-'6ffice on whicb ·theentry was allowed do' not show that there wasev:er.'oohtinuous residence for the :period of five years. They only ,go to the of showing ,that; the person who made, tbe originalapit for aperiodof three or four plication to enter it as a months before she was taken ill,andJrom that ti,me there was denee upon the landsbown by the testimony. The law not having been no right t() a patent existed at the time tbe proofs were ',takerl'Ort1t. the time the patent was issued. ,.. defe1l4antsin the suit have not conveye4the title. They goyem,ment,itrHl'pav¢' valid defens.a against' tbis' suit. Therefore a decree will be illBCcordance with the: prayer plaintitf!sbill. ; ",
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