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tions of the land-office to entitle him to the pre-emption of the land, and had sworn to such proof before the register; that they had prepared duplicate certificates in the form prescribed by law, setting forth that the said supposed person, represented by said fictitious name, had located the agricultural college scrip, and made due proof of his right to pre-empt said land and receive a patent therefor, and forward one of them to the general land-office at Washington, and requested a patent for the land to be issued in the name of the said supposed person; that in June, 1873, an agent of the defendant, David H. Moffat, Jr., appeared before the officers of the said general land-office and presented to them the other duplicate certificate, and also requested them to issue the patent desired, and transinit the same to him, (the agent,) and that said officers, confiding in the honesty and integrity of the receiver and the register, and believing the statements contained in the supposed proof forwarded to them, had issued the patent and transmitted it to said agent.
The bill further alleges that no person by the name of Quinlan had ever settled upon the land, or appeared and presented himself before the register and the receiver at any time, or made any declaratory statement or proof of preemption, either as a pre-emptor or witness, and charges that said papers were made by the register and the receiver for the purpose of fraudulently depriving the United States of their title to the land, and vesting the same in the defendant Moffat; that said Moffat now has the patent and claims to hold the legal title by virtue of certain mesne conveyances, namely, one executed on the twenty-third day of May, 1873, in the name of said supposed Philip Quinlan to a fictitious person by the name of Henry H. Perry, and a conveyance by said fictitious person, dated the twenty-third day of June, 1873, to himself; that the deeds from said supposed parties and the patent have been placed on record in the office of the recorder of the county in Colorado, where the land is situated, and constitute a cloud upon the title of complainant; that on the fifteenth of September, 1883, said Moffat executed a deed conveying an undivided half of the property covered by the patent to Robert E. Carr, as trustee, and that the deed is on record. And the bill charges that the said Moffat was well aware at the time he received the conveyances and the said patent of the fraudulent means by which the patent was obtained; that no valuable consideration passed from Carr to him; and that Carr also was fully informed that the supposed pre-emption and proceedings were false and fraudulent. The plaintiff therefore prays that the patent may be set aside and declared void, and delivered up to be canceled, and that the deeds from Quinlan to Perry, and from Perry to Moffat, and from Moffat to Carr, may also be adjudged void.
In the second case, the bill, as finally amended, alleges a similar conspiracy to defraud the government of a patent for another tract of land in the name of another fictitious person upon proofs by other supposititious persons, the pretended pre-emptor being Eli Turner, and the pretended witnesses to prove compliance with the pre-emption law being Simeon D. Porter and Anson Beck. The bill also alleges a conveyance from the pretended Eli Turner to a fictitious person, by the name of Thomas Harris, in June, 1873, and a conveyance from Harris to the defendant Moffat in the same month, and that such proceedings were had that on the fourth of October, 1873, a patent was issued for the land in the name of Eli Turner. And the bill charges that Moffat was cognizant of the false and fraudulent character of the alleged preemption of Turner, and of the proofs offered in its support, and prays, as in the first case,*that the patent be set aside and canceled, and the deeds of the supposed Turner and Harris be adjudged void.
The defendants answered the bills in both cases, denying their material allegations, and the charges of conspiracy and fraud, to which answers replications were filed. The testimony taken fully established the truth of the allegations and charges, except as to the knowledge by Moffat and Carr of the
alleged frauds; and the circuit court decreed the cancellation of the patents and the mesne conveyances purporting to pass the title from the pretended patentees to Moffat, and from him to Carr. From these decrees the defendants have appealed, and seek a reversal on four grounds, which are substantially as follows: First, that the evidence that the patentees were fictitious parties was insufficient to overcome the presumption arising from the patents themselves, and the certificates of the register and the receiver; second, that as the frauds alleged were committed by public officers, the receiver and the register, the government was bound by their acts, and the court erred in not giving effect to the patents and conveyances, so as to protect the defendants claiming under them; third, that Moffat and Carr were innocent purchasers for value, and, as such, were protected against the consequences of the alleged fraudulent methods by which the patents were issued; and, fourth, that no offer was made in the bill in either case to return the scrip received by the government for the land.
L. C. Rockwell, for appellants. Asst. Atty. Gen. Maury, for appellees. *FIELD, J. These cases present the same questions, and may be considered together. In our judgment, none of the positions of the appellants justifies our interference with the decrees of the court below. The presumption as to the regularity of the proceedings which precede the issue of a patent of the United States for land, is founded upon the theory that every officer charged with supervising any part of them, and acting under the obligation of his oath, will do his duty, and is indulged as a protection against collateral attacks of third parties. It may be admitted, as stated by counsel, that if, upon any state of facts, the patent might have been lawfully issued, the court will presume, as against such collateral attacks, that the facts existed; but that presumption has no place in a suit by the United States directly assailing the patent, and seeking its cancellation for fraud in the conduct of their officers. In such a suit the burden of proof is undoubtedly, in the first instance, on the government to show a fatal irregularity or corrupt conduct on their part; but when a case is established, which, if unexplained, would warrant a conclusion against them, the burden of proof is shifted, and they must show such integrity of conduct and such a compliance with the law as will sustain the patent. Its validity is, then, determinable, like any other controverted fact, upon the weight of evidence produced in support of and against their action.
There was no presumption here in favor of the officers which the testimony produced by the complainant did not entirely rebut and overthrow. Numerous witnesses, living in the immediate neighborhood of the land, testified that they were well acquainted with it, had been frequently upon it; that no one resided there; and that no improvements were made as stated in the preemption papers. They also testified that they never knew nor heard of persons by the names of the alleged pre-emptors, nor of the persons whose names were used in the attempted proof of settlement and cultivation. Neither the register nor the receiver came forward to disprove the conclusions which this testimony justified, that the pretended pre-emptors and patentees were fictitious persons. The suggestion that real parties may have appeared before the register and the receiver as pre-emptors and witnesses, having the names used, though usually known by different names, is far-fetched, and merits no consideration where the fact, with reasonable explanation for the use of the unusual names, was not established, nor proof adduced of the settlement on and improvement of the land. No such attempt was made, and if it had been, it would, according to the evidence received, have signally failed.
The position that, as the frauds charged were committed by officers of the United States, the court erred in not holding their acts to be binding, and in not giving to the patents the force of valid conveyances, is certainly a novel The government does not guaranty the integrity of its officers, nor the validity of their acts. It prescribes rules for them, requires an oath for the
faithful discharge of their duties, and exacts from them a bond with strin. gent conditions. It also provides penalties for their misconduct or fraud, but there its responsibility ends. They are but servants of the law, and if they depart from its requirements the government is not bound. There would be a wild license to crime if their acts, in disregard of the law, were to be upheld to protect third parties, as though performed in compliance with it. The language used in the case of Polk's Lessee v. Wendell sanctions no such doctrine. 5 Wheat. 293, 304. It was there used with reference to collateral attacks upon patents, in cases where the irregularities were committed by officers in the exercise of their admitted jurisdiction, and can have no applica tion to the acts of officers in fabricating documents in the names of persons having no real existence.
The patents being issued to fictitious parties could not transfer the title, and no one could derive any right under a conveyance in the name of the supposed patentees. A patent to a fictitious person is, in legal effect, no more than a declaration that the government thereby conveys the property to no one. There is, in such case, no room for the application of the doctrine that a subsequent bona fide purchaser is protected. A subsequent purchaser is bound to know whether there was, in fact, a patentee, a person once in being, and not a mere myth, and he will always be presumed to take his conveyance upon the knowledge of the truth in this respect. To the application of this doctrine of a bona fide purchaser there must be a genuine instrument having a legal existence, as well as one appearing on its face to pass the title. It cannot arise on a forged instrument or one executed to fictitious parties, that is, to no parties at all, however much deceived thereby the purchaser may be. Even in the case of negotiable instruments, where the doctrine is carried furthest for the protection of subsequent parties acquiring title to the paper, it cannot be invoked if the instrument be not genuine, or if it be executed without authority from its supposed maker. Floyd's Acceptances, 7 Wall. 667, 676; Marsh v. Fulton Co. 10 Wall. 683.
As to the position that no offer is made in the bills to return the scrip received for the land, only a word need be said. The pretended patentees, who are supposed to have given the scrip, being mere myths, having no actual existence, it would be idle to offer to return it to them; and for the same reason they can have no agents to act in their behalf. A strenuous effort is made by counsel to bring these cases within the doctrine declared in U. S. v. Throckmorton, 98 U. S. 61, and Vance v. Burbank, 101 U. S. 514, but without success. It was held in those cases that the fraud which will justify the setting. aside of the judgment of a tribunal specially appointed to determine particular facts, must be such as prevented the unsuccessful party from fully presenting his case, or which operated as an imposition upon the jurisdiction of the tribunal. Mere false testimony, or forged documents, are not enough if the disputed matter has been actually presented to and considered by the tribunal. Here officers, constituting a special tribunal, entered into a conspiracy; and the frauds consist of documents which they had fabricated, and presented with their judgment to those having appellate and supervisory authority in such matters; and thus a fictitious proceeding was imposed upon the latter as one which had actually taken place. It was a fraud upon the jurisdiction of the officers of the land department at Washington, and not the mere presentation to them of doubtful and disputed testimony. Decrees af firmed.
DEED OF TRUST-LOAN-FORECLOSURE SALE.
Under a deed of trust to secure M., covering land in the District of Columbia, owned by B. and W. as tenants in common, the land was sold to B. in 1873. The amount secured by the deed was $5,000 of principal and $2,429.02 interest, expenses and taxes. The sale was for enough to pay all this and leave a sum due to W. for her share of the surplus. The terms of sale were not carried out, but M. advanced to B. $3,200 more, (out of which the $2,423.02 was paid,) and took a deed of trust for $8,200, which was recorded as a first lien. A deed of trust to secure the amount going to W. was recorded as a second lien, but was never accepted by W. Litigation afterwards ensued, to which M. and B. and W. were parties, and in which a sale of the land was ordered and made in 1880, and M. bought it for a sum not sufficient to pay the $7,429.02, with interest, and the subsequent taxes on the land. W. claimed priority out of the purchase money for her share of the surplus on the sale of 1873, and M. claimed the right to set off against the purchase money enough of her claim for the $7,429.02 and interest, and the subsequent taxes, to absorb it. Held, that the parties had abandoned the sale of 1873, and that the sale of 1880 must be regarded as a sale to enforce the original deed of trust to secure M., and that W. had no right to any of the proceeds of the sale of 1880.
Appeal from the Supreme Court of the District of Columbia.
L. G. Hine and S. T. Thomas, for appellant. Jesup Miller and L. H. Pike, for appellee.
BLATCHFORD, J. Mrs. Susan L. Wallach, the wife of Charles L. Wallach, and Mrs. Catharine Burche, the wife of Raymond W. Burche, sisters and owners, as tenants in common, of land and buildings on the north-west corner of Sixth street west and D street north, in the city of Washington, joined with their husbands on January 15, 1872, in the execution to Joseph C. G. Kennedy of a deed of trust of that property to secure the payment to Mrs. Rebecca R. Mellen of a joint and several promissory note for $5,000, made by the grantors, payable at the end of five years from that date, with interest, at the rate of 10 per cent. per annum, payable in quarterly installments. The deed provided that the trustee might, on default, sell the property at public sale to the highest bidder, on such terms and conditions as he might deem most for the interest of all parties concerned in the sale, first giving at least 10 days' notice of the time, place, and terms of sale, by published advertisement. The deed provided that the proceeds of the sale, after paying its expenses, and other expenses of the trust, and a commission to the trustee, should be used to pay the debt, interest, costs, and expenses, whether due and unpaid, or unpaid though not due, and the surplus to the grantors. There was also a provision that the expense of insurance, as well as of any taxes the payment whereof might become necessary, should thereupon become a debt due and owing by the grantors, the payment of which should be secured by the deed.
There being default in the payment of interest, the trustee published a notice that he would sell the property at public auction, on December 8, 1873, on the following terms: $5,000, with interest thereon at the rate of 10 per cent. per annum, from January 15, 1873, "together with the expenses of sale, in cash, and the balance at one and two years, for which the purchaser is to give his notes, bearing interest at the rate of 8 per cent. per annum, and secured by deed of trust on the property sold." The property was sold for $16,509.66. The purchaser was Mrs. Burche. The charges against the purchase money were stated by the trustee to be $7,692.45, made up of $5,093.74 for note and interest, and $2,598.71 for taxes, trustee's fee, auctioneer's commission, and advertising. This left a net balance of $8,817.21, of which onehalf, or $4,408.60, was stated to belong to Mrs. Wallach, and to be the sum to be secured for her benefit under the deed of trust to be given on the property sold, according to the published terms of sale. Mr. Kennedy, as trustee,
and Mrs. Mellen, on December 15, 1873, made a deed to Mrs. Burche, conveying the property to her. This deed was acknowledged by the trustee on December 24, 1873. On that day Mrs. Burche executed to Mrs. Mellen a deed of trust of the same property, to secure the payment of a promissory note bearing that date, made by Mrs. Burche, for $8,200, payable to the order of Mrs. Elizabeth Hain, five years after date, with interest at the rate of 10 per cent. per annum, payable quarterly. This deed was acknowledged and recorded on that day, so as to make it a first lien on the property. On the same day Mrs. Burche executed two promissory notes, payable to the order of Mr. Kennedy, each for $2,204.30, payable one in one year and the other in two years after date, with interest at the rate of 8 per cent. per annum, and, to secure them, executed to Anthony Hyde and Albert F. Fox a deed of trust on the same property. This deed was acknowledged December 31, 1873, and recorded January 7, 1874. Of course, it was only a second lien on the property. Mrs. Mellen, Mrs. Burche, and the trustee intended that these notes to Mr. Kennedy and this second deed of trust should be the provision for the $4,408.60 for Mrs. Wallach.
What was done came about in this way: Mrs. Mellen made an arrangement with Mrs. Burche to let the $5,000 of principal stand, and to lend her $3,200 more, if she would secure the $8,200 by a first lien on the property. Mrs. Hain was the mother of Mrs. Mellen, and lent to her $1,000 of the $3,200. Mrs. Mellen furnished the rest, and had the note made to Mrs. Hain, and herself made trustee. Subsequently the notes were transferred to her. With some of the $3,200, the interest, taxes, expenses, etc., beyond the $5,000, were paid, and the remainder Mrs. Burche retained. Mrs. Wallach never accepted the two notes given to Mr. Kennedy, or the deed of trust securing them, and did not record that deed, or procure or authorize it to be recorded. In September, 1873, there being a dispute between Mrs. Wallach and Mrs. Burche as to the application of the rents of the property, which, under an agreement between them, Mrs. Wallach had been receiving for several years, and as to other matters concerning the property, they agreed, in writ ing, to submit the matter to three referees, who made an award November 8, 1873. On January 29, 1874, Mrs. Burche brought a suit in equity in the supreme court of the District of Columbia against Mrs. Wallach and Mr. Kennedy, praying for an accounting between herself and her sister respecting their interests in the property, and respecting the rents received, and taxes paid, and repairs made by Mrs. Wallach, and respecting the moneys Mrs. Burche had paid or secured on the property for taxes and expenses of the trustee's sale, and interest on the debt to Mrs. Mellen, and respecting charges on the property at the time of the sale, and that the amount which should be found to be due to Mrs. Burche be deducted from the $4,408.60 going to Mrs. Wallach, and that Mrs. Wallach convey her interest in the property to Mrs. Burche in fee-simple, and that Mr. Kennedy and Mrs. Wallach be enjoined from parting with the two notes or their proceeds till a final decree. On December 1, 1874, Mrs. Wallach filed an answer to Mrs. Burche's bill, and also a cross-bill against Mr. Kennedy,*Mr. and Mrs. Burche, Mrs. Hain, and Mrs. Mellen. In this bill she attacked the validity of the sale under the deed of trust, for various reasons, and prayed for an accounting between herself and Mrs. Burche, and for the setting aside of the award and of the sale under the deed of trust, and for the canceling of the deed from Mr. Kennedy to Mrs. Burche, and for a sale of the property. This cross-bill was not prosecuted, but on the sixteenth of January, 1875, Mrs. Wallach filed an original bill in the same court against the same defendants as in the cross-bill, and containing in substance the same allegations, and praying the same relief, and, in addition, the canceling of the trust deed from Mrs. Burche to Mrs. Mellen, and of that from Mrs. Burche to Hyde and Fox. This bill contains the averment that Mrs. Wallach never admitted that the sale to Mrs. Burche was a