Anderson v. United States , 123 C.C.A. 118 ( 1913 )

ROSS, Circuit Judge.

The government prevailed in this suit, brought by it for cancellation of a patent issued by it for a certain tract of land situate in Klamath county, state of Oregon, which was filed upon in September, 1898, by the appellant Jessie M. Wight, then a single woman, Jessie M. Anderson.

[1] The ground of the suit was the alleged falsity in the proof of the applicant in respect to her alleged residence upon the land for the period required by the statutes under which her filing was made. The court below found that within a few days after her filing she married the appellant William Wight, who lived on adjoining government land under a pre-emption and timber culture claim, one of which claims, embracing his residence, he subsequently changed to a homestead claim, which the record shows he never abandoned. The trial court found that, from the time of her marriage until the date of her final proof, the appellant Jessie M. Wight lived with her husband on his claim, and never resided upon the tract claimed by her as a homestead, although the latter was improved and cultivated by her in connection with the claim of her husband. A careful consideration of the evidence satisfies us that the court below was justified in that conclusion, and that the occasional visits that she made to her claim, and the money expended by her in the improvement thereof, did not answer the five years’ continuous residence required by the statutes.

[2, 3] Moreover, the husband’s residence is in law the residence of the wife, and the homestead law neither permits nor contemplates that both husband and wife shall take advantage of its provisions.

The judgment is affirmed.