The settled rule of this Court that the concurring findings of
two courts below will not be disturbed unless shown to be clearly
erroneous applies where the evidence is taken before an examiner.
Texas & Pacific Railway Co. v. Louisiana Railroad
Commission, 232 U. S. 338.
Page 234 U. S. 381
Quaere as to what is the effect on a commuted homestead
entry under § 2301, Rev.Stat., of an agreement for alienation made
after entry and before commutation,
and see Bailey v.
Sanders, 228 U. S. 603.
185 F. 484 affirmed.
The facts, which involve the validity of a patent of the United
States for a tract of land issued under a homestead entry, are
stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
This is an equity action brought by the United States against
appellant to cancel a patent issued to one Daniel
Page 234 U. S. 382
Landis for a tract of 120 acres of land in Yakima County in the
State of Washington, afterwards conveyed by Landis to appellant.
Landis made a homestead entry in November, 1899, under § 2289 of
the Revised Statutes as amended by Act of March 3, 1891, 26 Stat.
1098, c. 561; in November, 1902, he commuted the entry and
purchased the land under § 2301, as amended by the same act, and in
July, 1903, he received a patent. Upon the day on which he made the
commutation entry, he gave a mortgage upon the land to appellant,
and from that date ceased to live upon it, and as soon as the
patent was issued, he made the conveyance to appellant. The grounds
of the action were that Landis did not enter the land in good
faith, but for the purpose and with the intent of acquiring title
to it for appellant and at his instigation; that the residence and
improvements were not sufficient; that the affidavit upon which
Landis' original application was allowed was false and fraudulent,
in that he did not make the application in good faith for the
purpose of actual settlement and cultivation, but made it for the
benefit of appellant, with whom the entryman was then acting in
collusion for the purpose of giving to appellant the benefit of the
entry; that the proof of settlement and cultivation offered in
support of the commutation entry was false and fraudulent, in that
the entryman had not made settlement in November, 1899, or at any
other time; had not built a house, except a partially completed
shanty; had not resided on the land, and had not broken thirteen
acres and cultivated three acres, as alleged in his final proofs,
and that the statement made in his affidavit that he had not
alienated any part of the land was also false, in that he had
alienated or agreed to alienate it to appellant.
The trial court found that Landis made the homestead entry at
appellant's instigation and for his benefit; that the evidence on
which the register and receiver allowed
Page 234 U. S. 383
the commutation entry included sworn statements by Landis and
two witnesses to the effect that the claimant had lived
continuously on the land and made improvements, including a corral
and chicken house, and that he had cultivated three acres for three
seasons; that this was a false statement, there having been no
plowing or cultivation except during the third year; that the land
was dry sage-brush land, not productive without irrigation; that
Landis made only a pretense of settlement and a show of improving
the land, in order to satisfy the scruples of the witnesses upon
whom he depended to make final proof, and further, that appellant
was cognizant of every detail of the transaction from its inception
to the issuance of patent, and, indeed, directed the proceedings at
every step, and therefore could not claim to be a
bona
fide purchaser.
The circuit court of appeals concurred in this view of the
facts, and therefore sustained the conclusion reached by the trial
court that the patent should be cancelled, without finding it
necessary to consider the question of law, suggested by appellant,
that, inasmuch as final proof was not made under § 2291, but under
§ 2301 of the Revised Statutes, the fact that the claimant had made
an agreement before commutation to convey the land to another would
not affect the validity of the title obtained from the United
States, because § 2301 prescribes as requisite to commutation,
proof only that the entryman has made settlement, cultivation, and
residence for fourteen months, and does not require him to make
oath that he has not alienated any portion of the land. The decree
was affirmed (1185 F. 484), and the present appeal was taken.
Upon the question of fact as to the fraudulent nature of the
proof upon which the commutation entry was allowed, we have the
concurring findings of two courts, which, according to the settled
rule, will not be disturbed by this Court unless clearly shown to
be erroneous.
Stuart
Page 234 U. S. 384
v. Hayden, 169 U. S. 1,
169 U. S. 14;
Towson v. Moore, 173 U. S. 17,
173 U. S. 24;
Dun v. Lumbermen's Credit Assoc., 209 U. S.
20,
209 U. S. 23;
Washington Securities Co. v. United States, ante, p.
234 U. S. 76.
In behalf of appellant, it is urged that this rule does not
apply where the evidence is taken before an examiner, as was done
in this case. The rule, however, is subject to no such exception;
indeed, prior to the adoption of the new Equity Rules (226 U.S. 13,
Appendix, Rule 46), the evidence in equity actions was usually
taken before a master or examiner. And in
Texas & Pacific
Ry. v. Louisiana Railroad Commission, 232 U.
S. 338, where the findings of the special master who
heard the testimony were set aside by the circuit court and the
conclusions of that court were concurred in by the circuit court of
appeals, we deemed the case a proper one for applying the general
rule.
In the present case, not only does the argument submitted in
behalf of appellant fail to show clear ground for disturbing the
concurring findings of the two courts, but it raises no reasonable
doubt of their correctness.
This renders it unnecessary to deal with the question raised as
to the effect of an agreement for alienation made after entry and
before commutation. However, it is settled adversely to the
contention of appellant by our recent decision in
Bailey v.
Sanders, 228 U. S. 603,
228 U. S.
608.
Decree affirmed.