Citation Numbers: 33 F. 104
Judges: Brewer
Filed Date: 9/12/1887
Status: Precedential
Modified Date: 9/9/2022
Fifteen suits have been brought by the United States to set aside the patents to as many different tracts of land in the county of Haiper, in this state. The grounds alleged in each bill are fraud in obtaining the patent. One party is a defendant in all the cases. The facts in all are similar, and they may therefore be considered together. The rule to be observed, and the amount of proof requisite in cases of this character, have recently been stated by the supreme court in the Maxwell Land-Grant Case, 121 U. S. 325, 7 Sup. Ct. Rep. 1015, as follows:
“We think the general doctrine to be that when, in a court of equity, it is proposed to set aside, to annul, or correct a written instrument for fraud or mistake-in the execution of the instrument itself, the testimony on which this is done must be clear, unequivocal, and convincing, and that it cannot be done*105 upon a bare preponderance of evidence which leaves the issue in doubt. If the proposition, as thus laid down in the cases cited, is sound in regard to the ordinary contracts of private individuals, how much more should it be observed where the attempt is to annul the grants, the patents, and other solemn evidences of title emanating from the government of the United States under its official seal. In this class of cases, the respect due to a patent, the presumptions that all the preceding steps required by the law had been observed before its issue, the immense importance and necessity of the stability of titles dependent upon these official instruments, demand that the effort to set them aside, to annul them, or to correct mistakes in them, should only he successful when the allegations in which this is attempf ed are clearly stated and fully sustained by proof.”
With that exposition of the law as my guide, 1 pass to the consideration of the facts of these cases. The final receipts in all these cases were issued in the fall of 1882, and the lands were the same season purchased by the defendant M. II. Halsey. The proceedings in the land-office were regular on their face, and the parties enterifig the land, the subsequent patentees, were real parties, and not fictitious persons as in the Moffat Case; and now, before going further into the details, I am met with this question: Must the entry have been made subject to the provisions of the general pre-emption laws, and if not, what was requisite to entitle the party to it? These lands are a part of the Osage Indian Trust and Diminished Reserved Lands which were ceded by the Osage tribe of Indians to the government by the treaty of January 21, 1867, (M U. S. St. at Large, 687,) and, as provided in said treaty, were “to be held in trust for said Indians, and to be surveyed and sold for their benefit by the secretary of the interior.” On April 10,1869, by joint resolution of congress, that body provided for the sale of these lands, to “any Iona fide settler residing upon any portion thereof.” This act was re-enacted on July 15, 1870, with some slight changes. In Foster v. Brost, 11 Kan. 350, the construction of this act came before the supreme court of that state, and it was there held that the claimant’s right to purchase was not determined by the general pre-emption law, hut rested upon this act. I was a niembor of that court at that time, and took part in this decision. Two or three subsequent acts were passed by congress which do not require notice, for on the twenty-eighth day of May, 1880, an act was passed which seems to mo controls in the matter. The first section makes provision for then residing settlers. The second reads as follows:
“That all the said Indian lands remaining unsold and unappropriated, and not embraced in the claims provided for in section one of this act, shall be subject to disposal to actual settlers only, having the qualifications of pre-emplors. Such settler shall make due application to the register, with proof of settlement and qualifications as aforesaid, and upon payment shall be permitted to enter,” etc.
All that is required of the applicant is that he shall have the qualifications of a pre-emptor, that he shall be an actual settler, and that he shall make payment. As the government held these lands under a trust to convert them into cash, its primary object was, of course, to realize as soon and as much as possible, and not, as in respeet to public lands