When, in a court of equity, it is proposed to set aside, 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 not a bare
preponderance of evidence, and this rule, well established in
private litigations, has additional force when the object of the
suit is to annul a patent issued by the United States.
The Maxwell Land Grant Case, 121 U.
S. 325, is affirmed, and is quoted from and applied.
When the defendant in a suit in equity appears and answers under
oath, denying specifically the frauds charged, no presumptions
arise against him if he fails to offer himself as a witness as to
the alleged frauds, inasmuch as the plaintiff can call him and
cross-examine him.
Page 144 U. S. 155
"Public lands . . . valuable chiefly for timber, but unfit for
cultivation," within the meaning of the Timber and Stone Act of
June 3, 1878, 20 Stat. 89, c. 151, include lands covered with
timber but which may be made fit for cultivation by removing the
timber and working the lands.
B. entered a quarter section of timber land in Washington under
the Act of June 3, 1878, 20 Stat. 89, c. 151, and after receiving a
patent for it, transferred it to M. M. purchased quite a number of
lots of timber lands in that vicinity, the title to 21 of which was
obtained from the government within a year by various parties, but
with the same two witnesses in each case, the deeds to M. reciting
only a nominal consideration. These purchases were made shortly
after, or in some cases immediately before, the payment to the
government. B. and M. were both residents in Portland, Oregon. One
of the two witnesses to the application was examining the lands in
that vicinity and reporting to M.
Held:
(1) That all that the Act of June 3, 1878, denounces is a prior
agreement by which the patentee acts for another in the
purchase.
(2) That M. might rightfully go or send into that vicinity, and
make known generally or to individuals a willingness to buy timber
land at a price in excess of that which it would cost to obtain it
from the government, and that a person knowing of that offer might
rightfully go to the land office and purchase a timber lot from the
government and transfer it to M. for the stated excess without
violating the Act of June 3, 1878.
The Court stated the case as follows:
On July 23, 1882, the defendant David E. Budd applied at the
United States land office at Vancouver, Washington Territory, for
the purchase, as timber land, of the southeast quarter of section
12, township 9, range 1 west, Willamette Meridian. On November 10,
1882, he paid the purchase price, $2.50 per acre, and received the
receiver's certificate, and on the 5th day of May, 1883, a patent
was duly issued to him. On December 4, 1882, he conveyed the land
to the other defendant, James B. Montgomery. His entry and purchase
were made under the Timber and Stone Act of June 3, 1878, 20 Stat.
89, c. 151. Section 1 of this act provides:
"That surveyed public lands, . . . valuable chiefly for timber,
but unfit for cultivation, and which have not been offered at
public sale according to law, may be sold, . . . in quantities not
exceeding one hundred and sixty acres to anyone, . . . at the
minimum price of two dollars and
Page 144 U. S. 156
fifty cents per acre, and lands valuable chiefly for stone may
be sold on the same terms as timber lands."
Section 2, so far as it is applicable to the case at bar, is as
follows:
"SEC. 2. That any person desiring to avail himself of the
provisions of this act shall file with the register of the proper
district a written statement, in duplicate, one of which is to be
transmitted to the general land office, designating by legal
subdivisions the particular tract of land he desires to purchase,
setting forth that the same is unfit for cultivation, and valuable
chiefly for its timber or stone; . . . that deponent has made no
other application under this act; that he does not apply to
purchase the same on speculation, but in good faith to appropriate
it to his own exclusive use and benefit, and that he has not
directly or indirectly made any agreement or contract in any way or
manner with any person or persons whatsoever by which the title
which he might acquire from the government of the United States
should inure in whole or in part to the benefit of any person
except himself, which statement must be verified by the oath of the
applicant before the register or the receiver of the land office
within the district where the land is situated, and if any person
taking such oath shall swear falsely in the premises, he shall be
subject to all the pains and penalties of perjury, and shall
forfeit the money which he may have paid for said lands and all
right and title to the same, and any grant or conveyance which he
way have made, except in the hands of
bona fide
purchasers, shall be null and void."
The third section of said act, so far as here applicable, is as
follows:
"SEC. 3. That upon the filing of said statement . . . , the
register of the land office shall post a notice of such
application, embracing a description of the land by legal
subdivisions, in his office for a period of sixty days, and shall
furnish the applicant a copy of the same for publication at the
expense of such applicant in a newspaper published nearest the
location of the premises for a like period of time, and after the
expiration of said sixty days, if no adverse claim shall
Page 144 U. S. 157
have been filed, the person desiring to purchase shall furnish
to the register of the land office satisfactory evidence first that
said notice of the application prepared by the register as
aforesaid was duly published in a newspaper as herein required;
secondly, that the land is of the character contemplated in this
act; . . . and, upon payment to the proper officer of the purchase
money of said land, together with the fees of the register and the
receiver, as provided for in case of mining claims in the twelfth
section of the act approved May tenth, eighteen hundred and
seventy-two, the applicant may be permitted to enter said tract,
and, on the transmission to the general land office of the papers
and testimony in the case, a patent shall issue thereon."
On March 15, 1886, the government filed this bill in the
District Court of the Second Judicial District of Washington
Territory, making Budd, the patentee, and Montgomery, his grantee,
parties defendant, the purpose of which was to set aside the patent
and the title by it conveyed, on the ground that the land was not
timber land within the meaning of the act and that the title to it
was obtained wrongfully and fraudulently, and in defiance of the
restrictions of the statute. The defendants appeared and answered
under oath, denying the charges, proofs were taken, and, on final
hearing, a decree was entered in their favor dismissing the bill,
43 F. 630, from which decree the United States appealed to this
Court.
Page 144 U. S. 160
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
In the brief of counsel for the government, it is stated
that
"The two principal questions arising in the case are first, is
there such a combination or conspiracy shown to have existed to
obtain this, or this and other, timber lands for the defendant
Montgomery as authorizes the annulment of the patent issued to
defendant Budd? Second, is land of the character and description of
this quarter section subject to entry and purchase under the Timber
and Stone Act of 1878?"
The first question is perhaps stated too broadly, for the
inquiry is necessarily limited to the land in controversy. If its
title was fairly acquired, it matters not what wrongs have
Page 144 U. S. 161
been done by either defendant in acquiring other lands; so the
question properly to be considered is was this land wrongfully and
fraudulently obtained from the government? We have had many cases
of this nature before us, and the rules to guide in its
determination have been fully settled.
Kansas City, Lawrence
&c. Railroad v. Attorney General, 118 U.
S. 682;
Maxwell Land Grant Case, 121 U.
S. 325,
121 U. S. 381;
Colorado Coal Co. v. United States, 123 U.
S. 307;
United States v. Des Moines Nav. &c.
Co., 142 U. S. 510.
In the second of these cases Mr. Justice Miller thus clearly
states the rule:
"We take the general doctrine to be that when in a court of
equity it is proposed to set aside, to annul, or to 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 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 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 annual them, or to
correct mistakes in them should only be successful when the
allegations on which this is attempted are clearly stated and fully
sustained by proof. It is not to be admitted that the titles by
which so much property in this country and so many rights are held,
purporting to emanate from the authoritative action of the officers
of the government, and, as in this case, under the seal and
signature of the President of the United States himself, shall be
dependent upon the hazard of successful resistance to the whims and
caprices of every person who chooses to attack them in a
Page 144 U. S. 162
court of justice, but it should be well understood that only
that class of evidence which commands respect, and that amount of
it which produces conviction, shall make such an attempt
successful."
This case is even stronger in its aspects than some that have
been before us, for if the particular wrong charged upon the
defendants be established, the money paid is, by the second section
of the act, forfeited, and there is not even the possibility
suggested in the case of
United States v. Trinidad Coal
Co., 137 U. S. 160, of
an equitable claim upon the government for its subsequent
repayment. The hardship of such a result, so different from that
which is always enforced in suits between individuals, makes it
imperative that no decree should pass against the defendants unless
the wrong be clearly and fully established.
The particular charge is that Budd, before his application, had
unlawfully and fraudulently made an agreement with his codefendant,
Montgomery, by which the title he was to acquire from the United
States, should inure to the benefit of such codefendant. Upon this
question the fact that stands out prominently is that there is no
direct testimony that Budd made any agreement with Montgomery, or
even that they ever met, or either knew of the existence of the
other, until after Budd had fully paid for the land. No witness
ever knew or heard of any agreement. What, then, is the evidence
upon which the government relies? It appears that Montgomery
purchased quite a number of tracts of timber lands in that
vicinity, some 10,000 acres, as claimed by one of the witnesses;
that the title to twenty-one of these tracts was obtained from the
government within a year by various parties but with the same two
witnesses to the application in each case; that the purchases by
Montgomery were made shortly after the payment to the government,
and in two instances a day or so before such payment; that these
various deeds recite only a nominal consideration of one dollar;
that Budd and Montgomery were residents of the same city, Portland,
Oregon; that one of the two witnesses to these applications was
examining the lands in that vicinity and reporting
Page 144 U. S. 163
to Montgomery, and that the patentee, Budd, years after his
conveyance to Montgomery, stated to a government agent who was
making inquiry into the transaction that he still held the land,
and had not sold it, but that it was "in soak." But surely this
amounts to little or nothing. It simply shows that Montgomery
wanted to purchase a large body of timber lands, and did purchase
them. This was perfectly legitimate, and implies or suggests no
wrong. The act does not in any respect limit the dominion which the
purchaser has over the land after its purchase from the government,
or restrict in the slightest his power of alienation. All that it
denounces is a prior agreement -- the acting for another in the
purchase. If when the title passes from the government no one save
the purchaser has any claim upon it, or any contract or agreement
for it, the act is satisfied. Montgomery might rightfully go or
send into that vicinity and make known generally or to individuals
a willingness to buy timber land at a price in excess of that which
it would cost to obtain it from the government, and any person
knowing of that offer might rightfully go to the land office and
make application and purchase a timber tract from the government,
and the facts above stated point as naturally to such a state of
affairs as to a violation of the law by definite agreement prior to
any purchase from the government -- point to it even more
naturally, for no man is presumed to do wrong or to violate the law
and every man is presumed to know the law. And in this respect the
case does not rest on presumptions, for the testimony shows that
Montgomery knew the statutory limitations concerning the
acquisition of such lands and the penalties attached to any
previous arrangement with the patentee for their purchase. Nor is
this a case in which one particular tract was the special object of
desire, and in which therefore it might be presumed that many
things would be risked in order to obtain it, for it is clear from
the testimony that not the land, but the timber, was Montgomery's
object, and any tract bearing the quality and quantity of timber
(and there were many such tracts in that vicinity) satisfied his
purpose. This is evident, among other things, from the testimony of
one Tipperry, upon which some reliance is placed
Page 144 U. S. 164
by the government, which was that Montgomery offered him one
hundred dollars, besides all his expenses, if he would take a
timber claim in that vicinity, no particular tract being named, and
afterwards sell to him. The government relies also on the testimony
of Edward J. Searls that Montgomery promised to give him $125 and
all costs and expenses if he would enter a tract of timber land and
convey to him, and that thereafter Montgomery advanced the money
for the payment to the government, and subsequently, on receipt of
a deed, paid him the $125. If it be conceded that this testimony as
to another transaction be competent in this case, and there be put
upon the testimony the worst possible construction against
Montgomery, to the effect that he made a distinct and positive
agreement with Searls for the purchase of a tract which the latter
was to enter and obtain from the government, and so a transaction
within the exact denunciation of the statute, still that testimony
only casts suspicion on the transaction in question here, and
suggests the possibility of wrong in it. Because a party has done
wrong at one time and in one transaction, it does not necessarily
follow that he has done like wrong at other times and in other
transactions. Suppose in each of the twenty-one cases specified in
the testimony the government had filed a separate bill, making the
patentee and Montgomery parties defendant, and charging in each, as
here, a prior unlawful agreement, and in twenty of them the
patentee and Montgomery had each answered, denying under oath any
prior agreement, while in the twenty-first they had likewise
answered, admitting in full, as charged, the making of such
unlawful agreement, would the admission in the one case be
adjudged, in the face of the denial under oath in the other twenty,
clear, full, and convincing proof that in those cases, likewise,
there was a prior unlawful agreement? And yet such admission of
both patentee and Montgomery would be stronger and more
satisfactory evidence than the separate testimony of the patentee.
And this is all the testimony which in any manner points to wrong
in this transaction. Surely this does not come up to the rule so
well established as to the necessary proof in a case like this.
Page 144 U. S. 165
But it is suggested that there is a presumption of law that
where it appears that a transaction is wholly within the knowledge
of one party to a suit and he fails to disclose fully the facts
concerning such transaction, it was of the character claimed by the
adverse party. But that proposition has no application here. The
charge is that Budd made a prior agreement with Montgomery. When
Budd made his application, he filed an affidavit swearing that he
had made no agreement with anyone. This is one denial under oath of
the truth of this charge. In the bill as filed, answers under oath
were called for, and Budd and Montgomery each filed an answer under
oath denying specifically the existence of any such prior
agreement, and an answer under oath in an equity case, when called
for, is to be taken as evidence. But it is said that neither one of
the defendants appeared as a witness, nor did the notary who took
the acknowledgment of Budd's deed to Montgomery, nor did White or
Rockwell, the two witnesses to the application of Budd for purchase
of the land. As no wrong is charged against the three latter, if
the government, the complaining party, failed to call them, it is
to be presumed that, upon inquiry, it found that they knew nothing
which would tend to substantiate its claim. With regard to the two
defendants, they having once sworn that there was no agreement,
there was nothing further to disclose. If the government doubted
their statements under oath, it could have called either one and
cross-examined him to its satisfaction. It is familiar law that
where a witness discloses in his testimony that he is adverse in
interest and feeling to the party calling him, the latter may
change the character of his examination from a direct to a
cross-examination, and the opposing party is always adverse in
interest. In
Clarke v. Saffery, Ryan & Moody 126, in
which the plaintiff's counsel called the defendant as his own
witness and sought to cross-examine him, Chief Justice Best
said:
"If a witness by his conduct in the box shows himself decidedly
adverse, it is always in the discretion of the judge to allow a
cross-examination, but if a witness called stands in a situation
which of necessity makes him adverse to the party calling him, as
in
Page 144 U. S. 166
the case here, the counsel may, as matter of right,
cross-examine him."
See also People v. Mather, 4 Wend. 229;
Bank of
Northern Liberties v. Davis, 6 W. & S. 285;
Townes v.
Alford, 2 Ala. 378. The government failed in this case to
exercise such right of cross-examination, and surely cannot now be
permitted to make its failure a basis of impeaching their sworn
statements. Indeed, in view of the meagerness of this testimony, it
is not to be wondered at that the counsel for the government could
conscientiously make no stronger claim than this:
"While the proofs of conspiracy and combination involving the
two defendants is not so direct and full as a complainant might
desire to establish, it is yet believed that the judicial judgment
upon the facts shown may fairly be that the obtaining of the lands
by Montgomery, as shown in the record, including the Budd tract,
was in contravention of the provisions of the Timber and Stone Act,
and that the patent and deed now assailed should be declared
void."
With regard to the second question, the description in the act
is of lands "valuable chiefly for timber, but unfit for
cultivation." It is conceded that these lands were valuable chiefly
for timber. It is claimed, however, that they were fit for
cultivation, and therefore not within the description of lands
purchasable under this act; but obviously, at the time of the
purchase, the land was unfit for cultivation. It was covered with a
dense growth of timber -- fir trees, many of them two hundred feet
in height and five feet in diameter. In respect to the testimony,
the trial court makes this comment:
"Thirteen witnesses were called who testified that the soil is
stony and inferior for farming purposes; that it contains excellent
fir and cedar timber, besides hemlock, and an undergrowth of
various shrubs and brush; that the trees are large, tall, and
straight, and sound, and will yield from 50,000 to 150,000 feet of
the best quality of lumber per acre, and this testimony and
estimate is not controverted. The field notes made by the
government surveyor at the time of surveying the land, more than
twenty-five years ago, describe the land
Page 144 U. S. 167
as being stony and second-rate, and the timber as fir, cedar,
and hemlock, and the most convincing testimony of all is a series
of twelve photographs taken near the center of each legal
subdivision of the tract. These pictures exhibit with unerring
certainty and faithfulness magnificent trees standing so near
together as to force each other to grow straight and tall. They
satisfy the court that this tract is valuable and desirable for the
timber upon it, and also that no man would be willing to subjugate
this piece of forest for the mere sake of cultivating it."
If it be suggested that this dense forest might be cleared off
and then the land become suitable for cultivation, the reply is
that the statute does not contemplate what may be, but what is.
Lands are not excluded by the scope of the act because in the
future, by large expenditures of money and labor, they may be
rendered suitable for cultivation. It is enough that at the time of
the purchase, they are not, in their then condition, fit therefor.
The statute does not refer to the probabilities of the future, but
to the facts of the present. Many rocky hill slopes or stony fields
in New England have been, by patient years of gathering up and
removing the stones, made fair farming land; but surely no one
before the commencement of these labors would have called them fit
for cultivation. We do not mean that the mere existence of timber
on land brings it within the scope of the act. The significant word
in the statute is "chiefly." Trees growing on a tract may be so few
in number or so small in size as to be easily cleared off or not
seriously to affect its present and general fitness for
cultivation. So, on the other hand, where a tract is mainly covered
with a dense forest, there may be small openings scattered through
it susceptible of cultivation. The chief value of the land must be
its timber, and that timber must be so extensive and so dense as to
render the tract as a whole, in its present sate, substantially
unfit for cultivation.
But, after all, the question is not so much one of law for the
courts after the issue of the patent, as of fact, in the first
instance, for the determination of the land officers. The
courts
Page 144 U. S. 168
do not revise their determination upon a mere question of fact.
In the absence of fraud or some other element to invoke the
jurisdiction and powers of a court of equity, the determination of
the land officers as to the fact whether the given tract is or is
not fit for cultivation is conclusive. There is in such cases no
general appeal from the land officers to the courts, and especially
after the title has passed and the money been paid. We do not,
however, need to rest upon this proposition in this case, for the
testimony clearly shows that the tract, as a whole, was not fit for
cultivation, but was valuable chiefly for its timber.
We see no error in the rulings of the trial court, and its
decree will be
Affirmed.
MR. JUSTICE BROWN, with whom concurred MR. JUSTICE HARLAN,
dissenting.
MR. JUSTICE HARLAN and myself agree with the majority of the
Court in its construction of the Timber and Stone Act of June,
1878, that it provides for the sale of lands valuable chiefly for
timber, but unfit at the time of such sale, for cultivation. From
so much of the opinion, however, as holds that the purchase of
these lands by the defendant Montgomery was
bona fide we
are constrained to dissent.
The object of the act in question was to authorize the sale of
timbered lands in lots not exceeding 160 acres to anyone person at
a minimum price of $2.50 per acre, and, in furtherance of this
object, it was provided, in section 2 that the applicant must make
oath that he has made no other application under the act; that he
does not apply to purchase the same on speculation, but in good
faith to appropriate it to his own exclusive use and benefit, and
that he has not directly or indirectly made any agreement or
contract in any way or manner with any person or persons whatsoever
by which the title he might acquire from the government of the
United States should inure in whole or in part to the benefit of
any person except himself.
Page 144 U. S. 169
The facts in regard to this particular entry are meager. It
appears that Budd and Montgomery were both residents of Portland,
Oregon, and that Budd carried on a stock stable there; that he
entered the land on August 23, 1882, paid for it on November 10,
and conveyed it to defendant Montgomery on December 4 for a nominal
consideration of one dollar. Nearly three years thereafter, he
stated to a special agent of the land office that he had taken up
the land for his own benefit; that he had not sold it to anybody,
but still held it -- a statement manifestly untrue; that he was not
sure that he had ever seen the tract, but had once gone into the
neighborhood for that purpose, and that the land was "in soak,"
whatever that may mean. He refused to make an affidavit, but said
he would make a statement. The tract for which he paid $2.50 per
acre is shown to be worth $5,000, or over $31 per acre.
Did the case rest upon this statement alone, it must be conceded
that the government had not proven enough to authorize an annulment
of the patent subsequently issued. But it is a familiar rule that
where a particular act is equivocal in its nature and may have been
done with fraudulent intent, proof of other acts of a similar
nature, done contemporaneously or about the same time, are
admissible to show such intent. Cases of fraud are recognized
exceptions to the general rule that the commission of one wrongful
act has to legal tendency to prove the commission of another. Such
other acts always have a bearing upon the questions of fraudulent
intent or guilty knowledge where they are in issue. Thus, a single
act of passing counterfeit money is very little, if any, evidence
that the party knew it was counterfeit, since the innocent passing
of such money is an everyday occurrence; but if it be shown that
the person accused made other attempts to pass the money at or
about the same time, or that he had other counterfeit money in his
possession, the proof of
scienter is complete. The same
rule is frequently invoked in cases of alleged frauds upon the
government. It was applied by this Court in
Castle v.
Bullard, 23 How. 172, to a case where the
defendants were charged with having fraudulently sold the goods of
the plaintiff; in
Lincoln v.
Claflin, 7 Wall. 132, to an
Page 144 U. S. 170
action for fraudulently obtaining property, and in
Butler v.
Watkins, 13 Wall. 456, to an action for deceit in
endeavoring to prevent a patentee from using his invention. The
authorities are fully reviewed in
New York Mut. Life Ins. Co.
v. Armstrong, 117 U. S. 591, a
case where a policy of life insurance was alleged to have been
obtained for the purpose of cheating and defrauding the insurance
company, and evidence was admitted that policies in other companies
had been obtained with like intent.
In this connection, the evidence shows that in addition to Budd,
there were twenty-one others who, within the next few months,
entered and paid for similar tracts of land, and within a few days
thereafter conveyed them to the defendant Montgomery for the
nominal consideration of $1. In two instances, the land was deeded
before the payment to the government. Thus, of four entries and
payments November 10, deeds were in all except one instance
executed prior to December 15; of three entries in December, deeds
were made within two days in two cases, and the day before the
payment in the other; of three payments on March 17 for entries
previously made, deeds were executed upon May 1; of eleven payments
in June, deeds were all made before the end of the month, and of
one payment, made July 2, a deed was executed June 26. In all these
cases except one, the entries were witnessed by George F. White and
George W. Taylor, White being an agent of Montgomery for examining
timber lands. All of the lands covered by these twenty-two entries
lie in the same township, except one, which lies in an adjoining
township. In all the cases but two, the acknowledgments were made
before the same notarial officer. The deeds thus executed to
Montgomery covered 3,000 acres, and, if valued on the basis of the
valuation of the Budd land, would amount to about $100,000. Two
witnesses swore that in 1882, Montgomery requested them to take a
timber claim, and offered to pay them $100 each for their rights
and expenses.
These facts, with certain others stated in the opinion of the
Court, constituted the case of the government. While, if these
facts stood alone, without opportunity for further explanation,
Page 144 U. S. 171
it might be open to argument whether they established such a
case of want of good faith as to call upon this Court to annul the
patents, we are clearly of the opinion that they are of such a
nature as to call upon the defendants to produce the testimony
within their reach to explain the suspicious circumstances
attending these entries. As the case stands, the inference seems to
us unavoidable either that Montgomery bargained for these lands
beforehand or that he was most singularly fortunate in being able
to purchase them so soon after their entry. Neither Budd nor
Montgomery nor their witnesses White and Rockwell was put upon the
stand, though all or at least some of them must have been cognizant
of the entire facts connected with these transactions. "It is
certainly a maxim," said Lord Mansfield,
"that all evidence is to be weighed according to the proof which
it was in the power of one side to have produced, and in the power
of the other side to have contradicted."
Blatch v. Archer, Cowp. 63, 65. It has always been held
that the omission of a party to testify as to facts in his
knowledge in explanation of or to contradict adverse testimony is a
proper subject for consideration both at law and in equity.
McDonough v. O'Neil, 113 Mass. 92. The rule was thus
stated by Chief Justice Shaw in the celebrated case of
Commonwealth v. Webster, 5 Cush. 295, 316:
"Where probable proof is brought of a state of facts tending to
criminate the accused, the absence of evidence tending to a
contrary conclusion is to be considered, though not alone entitled
to much weight, because the burden of proof lies on the accuser to
make out the whole case by substantive evidence; but when pretty
stringent proof of circumstances is produced tending to support the
charge, and it is apparent that the accused is so situated that he
could offer evidence of all the facts and circumstances as they
existed, and show, if such was the truth, that the suspicious
circumstances can be accounted for consistently with his innocence,
and he fails to offer such proof, the natural conclusion is that
the proof, if produced, instead of rebutting, would tend to
sustain, the charge."
It is said by Mr. Starkie, in his work on Evidence, vol. 1,
Page 144 U. S. 172
p. 54:
"The conduct of the party in omitting to produce that evidence
in elucidation of the subject matter in dispute which is within his
power and which rests peculiarly within his own knowledge
frequently affords occasion for presumptions against him, since it
raises strong suspicion that such evidence, if adduced, would
operate to his prejudice."
The same rule is applicable even in criminal proceedings. 3
Starkie 1253.
See also 2 Pothier on Obligations 340. It is
said, however, in excuse that when Budd made his application, he
filed an affidavit that he had made no agreement with anyone, and
that Budd and Montgomery each filed an answer under oath denying
specifically any such prior agreement. This, however, answers but
poorly for the testimony which these witnesses could give upon the
stand. Our experience with human nature teaches us that men who are
guilty of a transaction of this kind will not hesitate to put upon
file a formal denial of their bad faith, and we hazard nothing in
saying that the first impulse of an innocent man under such
circumstances would be to offer himself as a witness in his own
behalf and vindicate his own conduct in the transaction. It is true
that the government was at liberty to call upon these witnesses,
but in so doing it would make them its own, vouch for their
veracity and integrity, be bound by their statements, and be
denied, except in the discretion of the court, the right of
cross-examination, which is the one thing indispensable to bring
out the facts as they actually existed. Even if the right of
cross-examination be conceded, we do not understand that it changes
in any way the obligation of the defendants to produce such
explanatory testimony as is within their control. While it is true
that from the fact that a person has been guilty of fraud in one
transaction it is not necessarily implied that he has been guilty
of it in another, the probability of a fraudulent intent is very
greatly increased by the multiplication of transactions of a
similar nature.
The evidence in this case tends to show that defendant
Montgomery had, by this and other devices, appropriated to himself
over 10,000 acres of land in and about this neighborhood. It is
unnecessary to say that, however this
Page 144 U. S. 173
may have been done, it is a practical defeat of the intention of
Congress. It certainly demands, and in this instance seems to have
received, a searching investigation. When we see the most valuable
portion of an immense domain which has been reserved by the
beneficence of Congress for the benefit of actual settlers or of
small proprietors being gradually absorbed by a few speculators, we
are forced to inquire whether there is not a limit beyond which
even a land patent of the United States begins to lose something of
its sanctity.
We think the decree of the court below dismissing the bill
should be reversed.