1. One who, in pursuance of a scheme to acquire the land for
himself, procures others to make homestead applications and
entries, knowing that they have no intention to establish residence
or otherwise comply with the law and that their proofs to the
contrary, made with his connivance, and upon the faith of which the
patents are issued, are false is guilty of defrauding the United
States of the value of the land. P. 258 U. S.
2. The right of the United States to recover damages for such a
fraud is not defeated by the facts that the period of residence
stated in the entry proofs was insufficient to comply with the
statute and that, but for a mistake of law in that regard upon the
part of the Land Department, the patents would not have issued. P.
258 U. S.
3. In an action for fraud by inducing fraudulent entries
resulting in patents, evidence that the defendant induced other
entrymen to file on other land and of his conduct touching
contracts on similar claims is admissible as bearing on his
knowledge and intent if
Page 258 U. S. 41
the judge, in his discretion, does not regard it as too remote
or as raising too lengthy and complex collateral issues, even if
afterward explained by the defendant. P. 258 U. S.
4. Evidence of current rates for similar lands situate in
adjacent townships, given by experts who learned the rates by
experience and report, held
admissible to prove value of
the lands in question. P. 258 U. S.
5. In an action for defrauding the government of public land by
procuring false proofs upon which patents were issued,
that an instruction directing the jury, if they found
for the plaintiff, to measure the damages at the market value with
legal interest at 6 percent from the date of the final certificate
to that of the trial was not a ground for reversing the judgment
rendered for the United States. P. 258 U. S.
265 F. 235 affirmed.
Error to a judgment of the circuit court of appeals affirming a
judgment for the United States in the district court in an action
to recover the value of public lands patented as a result of
fraudulent entries and proofs procured by the defendant.
Page 258 U. S. 45
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit brought by the United States to recover the value
of lands that it alleges it was induced to part with through the
defendant's fraud. The lands concerned had been in the Siletz
Indian Reservation in Oregon, and had been thrown open to homestead
entry by the Act of August 15, 1894, c. 290, § 15; 28 Stat. 286,
326. In addition to the usual fees, a payment of $1.50 per acre was
required, and three years' actual residence on the land was to be
established by such evidence as was required in homestead proofs.
The complaint alleges that the defendant, with intent to acquire
title to the lands mentioned for himself and associates, procured
certain old soldiers, named, to make homestead applications and
entries upon land pointed out by him, each previously signing an
agreement with him by which, for his information and services in
drawing papers and affidavits, the entryman was to pay him $185;
the entryman was to employ him to build a home upon the land,
paying him for that $100, and to clear or cultivate the land so far
as required by the laws in order to perfect title, paying him for
that $175. The entryman agreed to comply with the laws as to
residence, and the defendant agreed to do all the work required.
The defendant agreed to advance, if required, not exceeding $60 for
the fees of the land office, and, after final proof at the option
of the entryman, to procure a loan not to exceed $720, to be
secured by a first mortgage on the claim, all payments stipulated
from the entryman then to become due and to be payable out of the
loan, or if there was no loan to be paid upon final
Page 258 U. S. 46
proof, which was to be made as soon as the laws had been
It is alleged that the agreement was intended by the defendant
to conceal his intent to acquire title to the land; that the
entryman did not intend to establish a residence upon the lands so
entered, and that the defendant knew that they did not intend, to
and intended that they should not. The complaint goes on to allege
fraudulent proofs made by the defendant's procurement, the issue of
final certificates and subsequently of patents in ignorance of the
fraudulent character of the entries, the defendant in each case
having received a mortgage as agreed. The answer admits the
contract, denies all fraud, and sets up that the final proof of the
entrymen disclosed that they had not resided for three years upon
the land, as required by the Act of August 15, 1894, it then being
supposed by everyone that soldiers were allowed to count their time
of service, as by Rev.Stats. §§ 2304, 2305. The facts are admitted,
and it is pleaded and argued that the issue of patents by officers
of the United States with knowledge of these facts was due to a
mistake of law, for which the defendant could not be held
responsible. The defendant pleaded some other matters to which it
is not necessary to refer, including the fact that the causes of
action did not accrue within six years -- a defense that is not
pressed here. See United States v. Jones,
218 F. 973, 242
F. 609, 616.
After the skirmishes reported in the two volumes of the Federal
Reporter the case came on for trial and resulted in a verdict for
the plaintiff for $18,204.84. The judgment of the district court
was affirmed by the circuit court of appeals. United States v.
265 F. 235. The first question argued there, as here,
was whether the knowledge attributable to the United States that
the entrymen had not been upon the land three years is a bar to a
recovery. We agree with the circuit court of appeals that it is
Page 258 U. S. 47
necessarily a bar. If the defendant is responsible for
fraudulent representations of intent to establish a residence and
to fulfill in good faith the other requirements for a homestead,
and those representations induced the issue of the patents,
knowledge of another fact that also would have prevented the issue
but for a mistake of law does not take the right to recover away.
We can see no reason why failure through ignorance of law to insist
upon an independent ground for refusal should deprive a party to a
bargain of its rights upon other grounds, or of its right to
require good faith in regard to them. An express waiver would have
no such effect.
The defendant presents the case as if the only fraudulent
representations charged were that the entrymen had been upon the
land for a year or year and a half, whereas in fact they were there
much less, and then presses the argument that the falsity of such
statements was immaterial because the statement as made disclosed
the entrymen's want of right. But, as we have implied, the charge
of the government goes much farther, and if the evidence as a whole
tended to show the fraud that was charged, perjury as to the
duration of residence would be a fact to be considered, especially
if the time of residence fixed in the affidavits satisfied what
everyone then thought were the requirements of the law.
We may assume for the purposes of decision that the agreement
and mortgage were not unlawful on their face, and that the
defendant took pains to make them known to the authorities; but
obviously they might be made an instrument for the scheme alleged.
They were prepared in contemplation of a plan to collect old
soldiers for the purpose of making entries, the defendant paying an
agent five dollars apiece for every contract brought in. The
defendant admitted that he looked to the land, not to the soldiers,
as his security, and that he supposed the soldiers would sell the
land to pay their debt to him. The
Page 258 U. S. 48
land was timberland. There was evidence that the soldiers were
not intending to make their residence upon it; that the agent
employed to get their contracts knew that they were not intending
to; that the defendant treated the intent as matter of
indifference, and in his conversations with the agent indicated an
expectation to get the land for himself or his nominees without the
need of a preliminary contract to sell to him. He did get four of
the nine parcels. Without going into details, it is evident from
the way in which the whole business was transacted that all hands
proceeded on the notion that, if the entrymen put in a periodical
appearance on the land, they would get it, and that no one troubled
himself about actual intent provided the affidavits were in due
form. It is impossible to say that the evidence did not warrant
finding the defendant guilty of fraud.
Some questions are raised as to the admissibility of evidence.
The first concerns the introduction by the government of similar
arrangements with soldiers' widows to file claims on land in the
Siletz Indian Reservation without settlement. If the Court, in its
discretion, did not regard the evidence as too remote or as raising
too lengthy or complex collateral issues, it properly might admit
the facts as bearing on knowledge and intent, even if afterwards
the defendant gave an explanation that the jury might deem
satisfactory. So as to similar transactions with other soldiers. So
as to the defendant's conduct with regard to contracts upon similar
claims, although the evidence upon this point can have had but
little weight on either side. The other question is upon the
admission of certain testimony as to value. The land, as we have
said, was timber land. There seem to have been no sales in the
township where it lay, and timber experts knowing by experience and
report current rates in adjoining townships were allowed to state
Page 258 U. S. 49
going into the specific questions asked, it is enough to say
that we have examined them and find them all to have been well
within the discretion of the Court. See Virginia v. West
Virginia, 238 U. S. 202
238 U. S. 212
As the value found by the jury was very near to that set by the
defendant, if not the same, we hardly see why the objection should
have been pressed.
The only occasion for difficulty or doubt is an instruction by
the Court to the jury that, if they found for the plaintiff, the
measure of damages was the market value "with legal interest at six
percent" from the date of the final certificates to that of the
trial. The circuit court of appeals disposed of this by saying that
the attention of the Court was not called to the question of
interest. The bill of exceptions states that the defendant excepted
to that part of the instruction, while, on the other hand, the
transcript of the proceedings in Court, so far as intelligible,
would indicate that the circuit court of appeals was right. The
usual rule in tort cases has been to leave the question of interest
to the jury. Lincoln v.
7 Wall. 132, 74 U. S. 139
Eddy v. Lafayette, 163 U. S. 456
163 U. S. 467
But when the wrong consists of depriving the owner of property
having a definite or ascertainable value, there would seem to be
the same reason for allowing interest as if there had been a
misappropriation of money. The discretion of the jury does not mean
the right to gratify a whim or a personal fancy. An indication of
opinion on the part of the judge certainly would have been
allowable, Graham v. United States, 231 U.
, 231 U. S. 480
and the tendency of late cases in this country is to sustain the
ruling. Shaw v. Gilbert,
111 Wis. 165, 196; Fell v.
Union Pacific Ry. Co.,
32 Utah 101; New York, Chicago
& St. Louis Ry. Co. v. Roper,
176 Ind. 497, 509;
Wilson v. Troy,
135 N.Y. 96, 104; Drumm-Flato
Commission Co. v. Edmisson, 208 U. S. 534
208 U. S. 539
See Mobile & Montgomery Ry. Co. v. Jurey, 111 U.
, 111 U. S. 596
Page 258 U. S. 50
Erie & Western R. Co. v. Estill, 147 U.
, 147 U. S. 619
147 U. S. 622
In the circumstances of this case, we are of opinion that the
judgment must stand.
MR. JUSTICE PITNEY was absent, and took no part in the