PUGET MILL CO. V. BROWN.
987
Daniel C. Millett and Reynolds & Stewart, for complainants. Garvey & Smith and Thomas Carroll, for. defendant. HANFORD, District Judge. The complainants charge the defendant with having committed a fraud upon them by falsely representing the tract of land described in their bill of complaint as containing 52.25 acres, when in fact the quantity of land in said tract is but 19.5 acres, and thereby inducing them to purchase said tract for the price of $3,220, and on this ground pray for a rescission of the contract. The answer denies the charge of fraud, and makes an issue as to the quantity of land in the tract. From the evidence I find that upon the plat of the government survey the tract is shown as a lot containing 52.25 acres, situated between the main channel of the Cowlitz river and a branch of said river; the branch being one of the boundaries. Since the government survey was made, the river and said branch have, by avulsion, united in a new channel cut through this tract, dividing it into two parts, and washing away a portion of the soil. The change made by the river has not reduced the area to which the owner has title, but by the washing away of the soil the quantity of tillable land has been diminished so that there remains but 19! acres of tillable land. Bpfore concluding negotiations for the sale the defendant conducted the plaintiff Frank C. Hofman to the land for the purpose of viewing it. The loss of soil by the action of the river was then noticed by said plaintiff, as well as by the defendant, but neither of them knew the extent of it, or the quantity of land in the tract, and they were not able to locate all of the boundaries. In their calculations the parties estimated the tract as 52 acres, and fixed $70 per acre as the price; and, instead of measuring the ground, they agreed to consider the loss by action of the. river as being equal to the price of 6 acres, at said rate. Thus $3,220 became the agreed price for the whole tract. By his deed the defendant conveyed the entire tract to the plaintiffs. The parties having, in making their contract, assumed that there was a deficit of an unknown quantity of tillable land, and agreed upon an abatement of a specified sum from the contract price to make good the loss, I hold that the allegations of fraud are not sustained. The complainants have received all that they can justly claim, although it now appears that the bargain is not so advantageous to them as they supposed it to be at the time of mak· ing it. Decree dismissing the bill, with costs.
PUGET MILL CO. v. BROWN et al.
(Circuit Court, N. D. Washington. L
January 5, 1893.)
PU<BLIC LANDS-DECISIONS OF THE LAND OFFICE-WHEN CONCLUSIVB.
Decisions by the secretary of the interior llDd his subordinates on questions of fact arising in the administration of the land office are conclu"ive upon the courts when made in the performance of their official duties, DO fraud being shown; but such decisions, to be valid. must be made according to the. usual and regular rules of practice In the department, and
988
FEDERAL REPORTER,
vol. 54.
must be based on legal evidence, or upon some formal inquiry or trial at wbich the parties have a faIr opportunity of presenting evidence to support the claims or rights which they assert.. I. SAME-EVIDENCE-SOLDIERS' ADDITIONAL HOMESTEAD ENTRIES.
The record of the general land office, showing that an additional homestead entry under sections 2304, 2306,in the name of a soldier's widow, was allowed at a district land o1ll.ce, upon the filing of the necessary formal papers and presentation of a paper purporting to be a power of attorney, execUted by such widow, authorizing the entry, and that more than 10 years' afterwards the commissioner of the general land o1ll.ce canceled said entry for fraud, without giving the party interested a formal hearing, and without ,proof of fraud other than an unauthenticated letter from a person asSuming to the one who made the original homestead entry, contradicting the statements in the additional homestead entry papers, is not conclUSive, nor sufficient evidence of the illegality of such additional entry. Where such a power of attol"Ij.ey shows on Its face that the allegel} applicant had already parted with all her beneficial interest, a claimant of the land who admits that he purchased "scrip" therefor, and who does not offer to prove that it was different from the ordinary "Soldier's Additional Homestead Scrip," will be presumed to have known either that the power of attorney divested its maker of all beneficial interest before the. e:ntry was made, or that, at the time it left thE' POSS l3sion and control6'1. its maker, it was a mere blunk, and that by subsequently filling the blanks, so as to make It appear valid, a forgery was committed; hence l\ deed from thE' attorney pursuant to the sale was not such an attempted transf"r by a bona tide instrument in writing as would entitle the grantee to make a cash entry under 21 St. at Large, p. 238, § 2, though such entry was Sll.n.ctloned in advance by the commissioner of the general land ofllce. , ;. ,
&.
SAME-INVALID TRANSFER.
InEquity. Suit by thePuget Mill Company, a corporation, against Thomas H. Brown, to determine conflicting claims, under the laws relating to the public landl'l, to a tract of land to which said Brown holds the legal title bya patent issued by the United States, and for a decree declaring that he holds said title in trust for the' l>laintiff, and against J. H. Irvine and O. B. McFaden, for an injunction to restrain the cutting of timber on said land. Decree that the bill be dismissed. Hughes, Hastings & Stedman, for complainant. Stratton, Lewis & Gilman, fOr defendants. District Judge. The original bill of complaint in this caseshoVis that the plaintiff and the defendant Brown each claim a certain tract of land in Snohomish county, in this state, by virtue of entries and purchases thereof made by each, respectively, under the laws of the United States providing for the sale and disposition of public lands, and prays for an injunction to prevent the defendants Irvine and McFadden from removing timber from said tract, which they were about to do under a contract with the defendant Brown. By a supplemental it is shown that, since the commencement of this suit, the government has, by a patent, conveyed the legal title to said tract to the defendant Brown, and the complainant now asks' the court to decree that it has a superior right to said land, by virtue of its purchase of an earlier date than the entry and purchase made by said Brown, and that by said patent the title became vested in him, as a trustee,
PUGET MILL 00. V. BROWN.
989
for. the use aDd benefit of the complainant. The parties have made up and ftled an agreed statement of facts, upon which the case has been submitted. The plaintiff's claim of title is based upon a cash entry made at Olympia land office February 10, 1885, pursuant to the second section of the act of congress entitled "An act relating to the public lands of the United States," approved June 15, 1880, (21 St. U. S. p. 238, § 2,) which reads as follows: "That persons who have heretofore, under any of the homestead laws, en· tered land properly subject to such entry, or persons to whom the right ot those having so entered for homesteads may have been attempted to be transferred bona fide instruments in writing, may entitle themselves to said lands. by paying the government price therefor, and in no case .less than one dollar and twenty-five cents per acre; and the amount heretofore paid the government upon said lands shall be taken as part payment of said price: provided, this shall in no wise interfere with the rights or claims ot others who may have subsequently entered such lands the homestead Jaws."
As this law by its terms only authorizes entries to be made for the .purpose of perfecting titles of persons who had previously claimed the same land under the homestead laws, or the assignees of such claimants to whom the rights of homestead claimants had beenprevioul!lIy conveyed bona fide, by instruments in writing, it becomes ,necessary to consider the prior proceedings in the land office, and what, if any, rights the complainant had sought to' acquire .. to the land in question by an entry under the homestead laws By the statement of facts it appears that an entry of the tract was made at the Olympia land office in the name of Susan King, in the month of January, 1876, as a soldier's additional homestead, under sections 2304, 2306, Rev. St. The latter sep,tion provides that "every person entitled, under the provisions of section twenty·three hundred and four, to enter a homestead, who may have heretofore entered, under the homestead laws, a quantity of land less than one hundred and sixty acres, shall be permitted to enter so much land as, when added to the quantity previously entered, shall not exceed one hundred and sixty acre!!!." The practice in the land offices of the United States during and prior to the year 1876 permitted parties to select additional lands in any part of the country, and without appearing in person at the land office to make their entries; that is to say, parties were permitted to appear by authorized attorneys, and ftle their applica· tions and the affidavits and proofs required. Taking advantage of this liberal mode of making additional entries under this law, attempted transfers of soldiers' additional homestead rights became common, although such rights are not by the laws made assignable. The traffic was facilitated and carried on by means of sets of papers known to the trade as "Soldiers' Additional Homestead Scrip," consisting of (1) an affidavit stating briefly the facts essential to entitle the affiant to make an additional entry, and, further, that the entry is made for the affiant'!!! "own exclusive benefit, and not directly or indirectly for the benefit or use of any other person or persons whomsoever;" (2) an application to make an additional entr,. signed by the applicant, but having blank spaces to be
D90
lfEDERALc REPORT'ER,
ftiMd< rby; inserting ,the' date,'; Dnttte 'of the land office, and deseripti()D' o:!l,the land to be entered; "(3):8, ,lana-(dlice certificate,' showing the original homestead entry of 'the applicant; (4) in case of the supposed applicant being a widow, other affidavits showing her marSbidier,and the fact and date of his death; (5) an irrevocable power of attorney to make the additional entry, sell and convey the land, and appropriate the purchase Illoney,completelyexeCllted, acknowledged, and certified" but having wherein to insert the name of the attorney in fact and descriptIOn of the land. 'l'oeffect the entry made in the case of Susan King, aforesaid, .of the above description were filed in the land office, except the, ppwer of attorney, which was exhibited there, but not filed. The 'plaintiff bargained with some person, (not named,) who held said papers, and claimed to be acting for said Susan King, "to purchase the same, and the right of the said Susan King thereunder,and pay therefor, upon the entry of said land and the executionol the deed to plaintiff ,therefor, the sum of, five hundred doUars/' The parties have not seen fit in their statement of facts to mention the date, of this' agreement, nor to give the court any information as to when this land was selected for entry by means of said papers, nor by whom, nor when or by whom the descriptio,]1 thereof was written in the papers which were bargained for. The papers appear to be regular and sufficient for the purpose intended, except for one defect, vito the irrevocable power of attorney showed upon its face that, in consideration of $500 paid to her, the ostensible applicant had previously parted with all her beneficial interest in the land. In June, 1876;81 paper, purporting to be a deed ,·t<)nveying said tract from Susan King to the plaintiff, was executed and delivered by W; D. Scott, the attorney in fact named in said power of attorney. It is now claimed by the plaintiff that an atteD1pt was made bona fide, oy said instrument in writing, to transfer the rights of the Susan King, who made an original entry for a homestead of a tract lesl!! than 160 acres, in and to the land in controversy, under the entI'Y' made at Olympia in January, 1876, as an additional homestead, which she claimed the right to make as the Wiidow of a deceased soldier. On the 16th of January, N. C. McFarland,the then com· missiOJ;1er of the general land office, Rrting upon information con· tainedin a letter from the assistant adjutant general of the United States army as to the military record of Joseph S. or Joshua S. King, whose widow was supposed tooe the Susan King, in whose name the' said additional homestead entry was made, and other information contained in a letter purporting to 'have been written by a MrS; Susan King, alleging herself to be the person who made the original homestead entry referred to in the set of papers filed in the Olympia land office, and that her husband's name was John Wesley King, and that he did not serve in the United States army during the Civil War, made an order holding said additional homestead entry for cancellation, and allowing the parties interested 60, days from the receipt of notice of said order within which to
PUGH MILL 00. fl. BROWN.
show cause why the said entry should not be canceled., or make an application to purchase the land under the said act of June 15, 1880. The plaintiff elected to take advantage of the option offered by the commissioner's said order, and accordingly did, on the 10th day of February, 1885,make application at said land office, under said act, and paid the government price for the land. More than twq. years afterwards, tp.esuccessor in office of said commissioner of the general land office, without affording an opportunity to the complainant to defend its claim concerning the validity of said entry, and without any' inquiry as to the facts or evidence of frand, other thaD what appeared by the papers on file hereinbefore speci· fied, including the official letter of the assistant adjutant general of the army and the letter supposed to have been written by a person bearing the name of Mrs. Susan King, made an order canceling said entry, alleging as the reason for making said order that said entry was "fraudulent or illegal." From said order an appeal was taken to the secretary of the interior, and, upon consideration thereof,W. L. Muldrow, acting secretary of the interior, on September 8, 1888, made an order and decision affirming the order of the commissioner cancelling said entry. This order and decision of the acting secretary assumed that the cash entry made by the complainant was fraudulent and invalid, because the prior additional entry of the same land was based upon fraud and perjury. The defendant Brown filed a declaratory statement as a settler upon said land under the pre-emption law, June 24, 1890, and made final proof and payment on the 24th day of March, 1891, and a patent conveying the said land to him was issued February 18, 1892, pursuant to his said declaratory statement and final proof. The secretary of the interior and his subordinate officers in the general land office are clothed witn certain powers and functions constituting them a special tribunal for the hearing of evidence and determination of questions arising in the administration of the laws providing for the sale and disposition of public lands; and, without a showing of fraud, the decisions of said tribunal as to questions of fact made i,n the performance of their official duties are treated by the courtfjl as c()nclusive. But the decisions of-said tribunal, to have any force, must be made in the due performance of official duties, and in accordance with the usual and regular rules of practice or usage in the department, and must be based upon legal evidence, or upon some formal inquiry or trial at which the parties to be affected have a fair opportunity of presenting evidence to support the claims or rights which they assert. The grounds of the decision of the acting secretary of the interior upon the appeal taken by the complainant from the order of the acting commissioner of the general land office, so far as shown b.y the record, are fully stated in the following extract from the decision itself: "Cash entry No. 9,194 covered soldIer's addittonnl homestead entry No. 2,410, made In tbe at Susan King, wIdc;w ot Joseph S. King, .January 26, 1876. Your oftl.ce decIded January 16, 1885, that entry No. 2,410 was held tor cancellation as illegal and fraudulent, tor the reason that 'Susan King, who made
992
Jliera;r1glnalholOesteadentry uponwblcll 'said addlt1onalbomestead':entry is 'mtormed your, qtfice in a daWd December 21, 1884, ceased husband was not named Joshua S. King, but was named John King, and that be served In :the united States armydurtng the recent
RebeD1oIi.'
.'
,
, '\By ,rour said ,office decision, the parties Were allo,ved to show cause Withill Why the entry should not be canceled, or to fila,in thg 10ca1. Ia,n,d, office Eon application to purchase the land under the act of June 15, 1880, the same as in the other additional entries hereinbefore mentioned and described;, A deed is attached to, the papers of the said cash entry, by which it appears that a person naming herself Sman Ring c.:>nveyed the'land covered by the said entry to the appellant June 15, 1816; and the latter made cash entry for the said land February 10, 1885. "The record shows that the person of the name of SUSIlll KIng, or assuming such name, made the said additional homl:8tead entry by virtue of the services of one Joseph S. King, of whom she Is claimed to be the widow, in the army of the United states, in Company E, third regiment of Arkansas cavalry volunteers. "The party, made affidavit, bearing date September 13, 1815, in which it is set out that she is the widow of Joseph S. King; that the latter served as a soldierlri: the said company, and was honorably discharged on or about June 30, 1865, ,after serving more than 90 days. A111ant further alleged that she was married to sald Josevh S. King on ,July 15, 1855, who died August 30,1866. Attach!'c1 to the entry certificate is a certificate from the assistant adjutant general that one Josiah King was enrolled on October 15, 1863, in CompanyE. third reglm{>nt of Arkansas cavalry volunteers, mustered Into service November 19. 1863, to serve three years; that on the muster roli of said company for the months of November nnel December, 18G3, he was reported as Joseph S. King, and was so borne on all subsequent rolls; that he was mustered out with said company at Lewisburg, Ark., .Tune 30, 1865. Attached to the papers is also a letter,signed by Susan King, dated December 21, 1884, addressed to the geneJ.'alland office, i'eading as follows: 'In reply to yours of the 2nd Instant, would say that Ihomesteaded N. W. of S.E. Sec. 1, T. 9 N., R. 22 W., .Johnson county, Arkansas, containing forty acres, as the deed from the land Qlfice at Was'lllngton (lity, as well as the county records, wUlshow. :My husband, ,John Wesley King, did not serve in the United States army during the late war." The land described in the letter is the land covered by the original homestead entry, upon whtch the additional entry was based. * * * "In the case of entry No. 9,194, based on additional entry made In the name of King, it is shown by the records of the department of war and the letter of 'the genuine Susan King that the application for the additl(,nal homestead was founded oil frnud and perjury. 'rhe signature King,' appearing in the affidavit for the additional entry, and the signature of Susan King in the letter, be'in the same handwriting. "The qupstion of the validity of these, five ca8h entrles1s controlled by de,ision in the Case of J. S. Cone, 1 Dec. bep, Int. 94. It wal!! there decided that the second section of the act of June 15, 1880, (21 St. p. 238,) should not be <lou.'ltrued to permit an entryman, or his attempted transferee, to purchase land covered by an entry which depends for its inceptive right upon false anel fraudulent statements and forged documents. This opinion is still adhei'ed to."
From the record it appears that there was no pretense of anything resembling a formal inquiry into the actual facts of the transaction, DO taking of proofs, no distinct findings of any facts upon which the conclusion that the additional homestead entry was fraudulent could be founded,' and there was no legal evidence before the acting secretary to support such findings. If it be claimed that the charge of fraud was in effect confessed on, the part of the .complainant by having declined to maintain the validity of the additional homestead entry in a contest with the government, a good answer to
993
such claim is to be found in the fact that, instead of making default after a fair notice or l!lurilInons to show cause, or in any manner declining to take issue upon an allegation of fraud, the complainant responded to the notice contained in the order of Commissioner McFarland, by electing to pay the government price for the land and make a second entry. The commissioner, by the only notice ever given affording an opportunity to support by evidence the validity of the additional homestead entry, also gave an option to terminate the controversy in a less expensive and more expeditious way. ,Therefore no admission can be fairly inferred from the mere fact that the better way suggested by the commissioner was chosen. The acting secretary, by his decision, treats the unsworn statements contained in the unauthenticated letter purporting to have been written by a Mrs. Susan King, in an apparently different handwriting from that of the signatures upon the papers filed in , making the additional homestead entry, years subsequent to the execution of a deed purporting to be a conveyance of the land by the individual in whose name the entry was made, as being sufficient, without evidence to identify the writer as the real Susan King who made the original homestead entry, to establish the falsity of the statements in the application and affidavits upon which the additional homestead entry was made. ' If, in the determination of the issues between the parties now contending for the land, the scope of the inquiry is so limited that the court can only review the decision of the acting secretary the light of the facts appearIng by the record of the case in the general land office, then the plaintiff ought to prevail. But there is evidence before the court, not found in the general land office, to be considered, and the conscience of the chancellor must be satisfied that the complainant has a superior, right, according to the principles of equity, before the court can, in the exercise of the extraordinary powers of a court of equity, decree a transfer of the title from the defendant, in whom it is now vested. Now, by the agreed statement of facts before me it appears that the complainant did not deal directlv with Susan King; and, giving to its officers and agents credit for the, sagacity and prudence of business, men of ordinary intelligence, there appears to be no theory consistent with the facts which can lead to a conclusion that there was any bona fide attempt to transfer any right to the land which the parties could reasonably have supposed to have been acquired by the additional homestead entry. An attempt to convey a title cannot be bona fide on the part of the vendee unless in making the purchase he acts with prudence, and under an honest belief that the vendor has the right to convey the title to him. Now, I find annexed to the statement of facts the original instrument, purporting to be a power of attorney from Susan King to W. D. Scott, under which the deed to plaintiff was executed by Scott. By the date of its execution and acknowledgment, in connection with the admitted fact that the complainant's bargain was for "scrip," (so called,) and that it paid the purchase money to a stranger, and the further fact that upon the present trial the complainant has not v.54F.no.6-63
to prove that the "scrip" whichii; bargained for was dUferent in character from the sets of blanks which were com· monly.· sold and traded in .by .dealers, and by them called "Soldier's AdditiQJ:l.al Homestead Scrip," the inference is justified that the complaina,Jlt, at the time of its purchase, either knew, or ought to have known, that said power of attorney either divested the maker of it of. all her beneficial interest in the land some four months prior to the additional entry in tlle land office at Olympia, and therefore falsified the statements of the application and affidavits where· by the .entry was made, or that, .at the tjme when. it left the posses· sionand control of maker, said power of attorney was a mere blf1,Jlk, utterly void, and that by. subsequently filling the blanks, so as to make it appear to. be complete and valid, a forgery was com· mitted. ,MycQnclusions are that the. attempted transfer of rights ac· quired under the.homeli\tead laws to the complainant was not bona fide,; .. that the cash was therefore not authorized by the act. of Julle 15, 1880;. and that no rights adverse to the clitn be acquired by.an entry not authorized by law, even though sanction,ed in advan(le by a commissioner of the general land office. The defendants are entitled to have the suit dismissed. Decree accordingly. I
UiUTEI:>' STATES v. WORKINGMEN'S AMALGAMATED COUNCIL OF NEW ORLEANS et a1. (Circuit Court, E. D. Louisiana-March 25, 1893.) 1. INJUNCTION-WHEN GRANTED-UNLAWFUL COMBINATIONS·
.,Where an injunction is asked against the interference with interstate commerce by combinations of striking workmen, the fact that the strike is ended and labor resumed since the filing of the bill 18 DO ground tor refus. ingthe injunction. The invasion of rights, especially where the lawfulness of the invasion Is not disclaimed, authorizes the injunctlon.
lil.
BAilE-BILL AND ANSWER-WAIVER OF OATH.
ment to equity rule 41, be used at the hearing with probative force of an aflidavit alone. Whether the injunction should issue must be determined by the whole evidence submitted. 8. UNLAWFUL COMllINATIONS-RESTRAINT OF TRADE.
.wer, under oath, denying all the equities of the bill, can, under the amend·
Where the bUl for injlJIlction waives the oath of the respondents, an an·
The act declaring illegal "every contract or combination in the form of trust,or otherwise in . t;estralnt of trade or commerce among the sev· eralstates or with foreign natloI;lS," '(26 St. at Large, p. 209,) applles to combinations of laborers as well as of capitalists. '- SAME-EvIDENcE-AmnssIBTLITY. In order to suStain the allegations Of a bill praying an injunction against a combination in restraJIl.t of. interstate commerce, the complainant may olfer in evidence, as. matter of history, the oflicial prol!lamatlon of the vartous government officers, and also· newspaper reports supported by affidavits containing manifestoes and d.eclarations of the respondents. '1. SAME-LAWFUL COMBINATIONS TURNED TO UNLAWFUL PURPOSES .· . The fact that a combination of men is in its origin and general purpose. innocent and lIl-wtul·is no ground of defense when the combination is