APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
MR. JUSTICE McKENNA delivered the opinion of the court.
This suit was brought by the United States to cancel a patent issued to one William Josiah Ward and a deed made by him and his wife to J.J. McCaskill & Company, and by the latter to the J.J. McCaskill Company, the appellant. The allegations of the bill are that the N. 2/1 of the N.E. 4/1, S.W. 4/1 of the N.E. 4/1, and S.E. 4/1 of N.W. 4/1 of section 8, township 1 N., 17 W., in the county of Walton, State of Florida, being public lands of the United States, William Josiah Ward, on the eighteenth of September, 1900, filed his application upon them for a homestead in the land office in Gainesville, Fla. That he subsequently commuted the entry by paying the Government price therefor, making proof of settlement, cultivation and improvement for the period of time required by law, and that on January 13, 1903, a cash entry certificate No. 18,026 was issued to him and a patent on the third of June, 1903. It is alleged, with detail of circumstances, that the statement of Ward and the proof presented by him on the hearing for final proof were false, fraudulent and untrue. The allegations will be given later. The bill further alleges that the land embraced in the patent was conveyed by Ward to J.J. McCaskill & Company (the bill as originally filed alleged that the conveyance had been made to the McCaskill Company), a copartnership composed of J.J. McCaskill and E.L. McCaskill, then engaged in the manufacture of lumber at Freeport, Fla. That they afterward incorporated by the corporate name of the J.J. McCaskill Company, with the said J.J. McCaskill as president and Robert E.L. McCaskill as secretary, owning a large majority of the stock of the corporation, with the entire management
and control of its business and affairs. That the company took over from the said J.J. McCaskill or J.J. McCaskill & Company the homestead entry of Ward, with full knowledge of its president and secretary of the negotiations between the company and the entryman by Warren Ward, an agent of the company, "and with all the knowledge and notice of the said McCaskill & Company of the fraud and duplicity practiced by William Josiah Ward in obtaining the patent from the United States."
The answer of the company alleged that conveyance was made by William Josiah Ward to J.J. McCaskill after the patent was issued for the sum of four hundred and twenty-five dollars; that McCaskill, for a valuable consideration, sold and conveyed the same to the McCaskill Company; that the conveyance was made in good faith, without notice or knowledge of any kind whatsoever of any irregularity or fraud upon the part of Ward, if any there was, and that he was a bona fide purchaser of the property; and that the company was a bona fide purchaser, for a valuable consideration from J.J. McCaskill, and without knowledge or notice of any irregularity or fraud practised by Ward. The usual replication was filed and an examiner was appointed to take the proofs on the issues made.
Upon report to the court a decree was entered overruling the objections of the company to the evidence and the motion to strike it out, and adjudged and decreed that the patent be declared null and void, and that it be surrendered by the company, the decree finding it to be in its possession, to the clerk of the court, to be inscribed by him "null and void." It was further adjudged and decreed that the deed from William Josiah Ward to J.J. McCaskill & Company and the deed from the latter to the J.J. McCaskill Company be vacated and annulled, and the company be enjoined forever from setting up or claiming title to the land by reason of the patent or any of the conveyances from Ward. The decree was affirmed by the Circuit Court of Appeals.
There are twenty-three assignments of errors, eighteen of which are addressed to rulings on evidence and five attack, in general terms, the decree canceling the patent and the conveyance by Ward.These five were alone discussed in the oral argument and in the brief on file under the following divisions:
"1. Are the averments of the bill of complaint sufficient to give the court of equity jurisdiction?
"2. Do the facts proved by the Government sustain the averment that the final proof of the entryman was false, fraudulent and untrue?
"3. Will this court review decisions by the land office officials upon questions of fact?
"4. Does the appellant occupy the position of an innocent purchaser and is the Government precluded because of his rights as such?"
1. To support the first proposition it is urged that the bill does not allege the facts upon which the charge of fraud in obtaining the patent was based and therefore "presents no issue for trial and should fail upon demurrer." But there was no demurrer filed to the bill. The only answer to paragraphs four and five (set out below) was that as to the facts of the former the company was not advised; that as to the facts of the latter it had "no knowledge," and denied, therefore, that they were true, and demanded strict proof of them. The first and only explicit objection to the bill for insufficiency is made in the brief filed in this court. But, conceding it covered by the assignments of error discussed by counsel and entertaining it, we think that it is without foundation. The following are its averments:
"Your orator shows unto your honor that the said William Josiah Ward, in the commutation proof taken on the 29th day of December, 1902, alleged himself, and made it appear by the testimony of others, that he had established a residence upon said land om March 10th, 1901, and that he continuously resided thereon from that date until and up to the date of submission of final proof, except for absences on two or three
occasions of not exceeding three months, due to the illness of his wife; that he had improved the tract by erection of a house thereon and by cultivating one-half acre for two seasons, and the whole amount of improvements being alleged to be of the value of forty ($40.00) dollars, and that he had complied with the law entitling him to a patent to said lands.
"Your orator further shows unto the court that the statement of the said Ward and the proof presented by him on the hearing for final proof was false, fraudulent and untrue; that he did not have the imporvements that he alleged that he had on said premises, and had not cultivated the said land; that the improvement accomplished on said entry consisted of nothing more than a pine-pole cabin, never completed, without floor, door or chimney; that there was absolutely no means of entrance or exit thereto or therefrom, unless through the unenclosed gable ends of said cabin; that the interstices between the poles of said cabin were never closed in any fashion; that the only ground on said entry which had undergone cultivation was a space within an enclosure of thirty by thirty-five feet; that the said Ward never resided upon said land, but during the period allowed for residence on the homestead entry, entryman actually resided at his home, where for a long time he had maintained his residence, three and one-half miles distant from said entry."
Appellant relies for its contention upon United States v. Throckmorton, 98 U.S. 61; Vance v. Burbank, 101 U.S. 514; United States v. Maxwell Land Grant, 121 U.S. 325, and other cases of like kind. We will not take the time to review them. It is enough to say that it was pointed out in United States v. Minor, 114 U.S. 233, that they do not apply to a case like that at bar, where the charge is that there was fraud and perjury in ex parte proceedings before the land office. See also United States v. San Jacinto Tin Company, 125 U.S. 273; Moffat v. United States, 112 U.S. 24; ...