#### WILLIAM FRACKELTON v. THE UNITED STATES.

[No. 31019.

Decided May 5, 1919.]

*On the Proofs.*

*Goal land entry; fraud, what constitutes.*— The prior execution and delivery by a coal land entryman to a third party of a warranty deed for an undivided one-half interest in the land for which he files an application to purchase under the statutes applicable to coal lands on the public domain, when not disclosed by the entryman’s application, constitutes a fraud within the meaning of the act of March 26, 1908, 35 Stat., 48, and a recovery of the purchase price can not be maintained either under the act or the act of June 16, 1880, 21 Stat., 287.

*The Reporter’s*statement of the case:

*Mr. Samuel Herrick*for the plaintiff. *Enterline & La Fleiche*were on the briefs.

*153This is a claim for repayment under section 2 of the act of June 16, 1880, 21 Stat., 287, and section 1 of the act of March 26, 1908, *b*"at., 48, of the purchase money paid on a canceled coal land entry covering one hundred and sixty acres of the public domain.

It is our contention that claimant’s coal land entry was erroneously allowed since he failed to file with it the affidavit required by paragraph 32 of the coal land regulations to the effect that the entry was being made for his own benefit exclusively, and that there was no fraud or attempted fraud in connection with the entry.

The application for repayment was rejected by the Interior Department for the alleged reason that claimant signed a form of the affidavit required by the coal land regulations and that while the register of the local land office or other officer did not sign the jurat of the affidavit yet it may be assumed that he did do so “in the absence of satisfactory evidence to the contrary,” and, accordingly, there was fraud actual or attempted.

We submit that this line of reasoning is wholly unworthy of the law officers of the Interior Department and can not be accepted by this court. An affidavit can not be presumed to have been executed unless it has attached to it the jurat of a proper officer. Of course, proof might be adduced in such a case as this to show that the affidavit actually was executed but that the officer inadvertently failed to attach his name, or his name and seal if it be an officer having a seal. But in the case at bar the Government has adduced no proof to that effect, and so far as the record shows has' made no effort to prove that the affidavit in question was actually sworn to.

On the other hand, we have the testimony of Dr. FrackeN ton himself that he does not remember having executed any such affidavit; that he was not asked by either the register or receiver of the local land office whether or not the entry was for his own benefit; that he made no effort to conceal the circumstance of his having deeded half of the land to Frank Meyer for the necessary purpose of raising the Government price; and that had he been questioned about it he *154would freely and frankly have admitted the interest of Meyer. That partially corroborating this we have the testimony of the district judge, the bank cashier, the postmaster and the register of the United States Land Office, as to Frackelton’s excellent reputation for honesty and integrity in his community.

The further suggestion of the Interior Department that because these papers “were accepted by the register and receiver as showing a satisfactory compliance with the statute, they were in fact sworn to,” is also without force. The records of the Interior Department will show that the registers and receivers of the various land offices commit thousands of mistakes in the course of their duties, which mistakes even result in the allowance of two entries by different persons for the same land, or in the issuance of patents to the wrong individuals, and otherwise Congress would never have passed the act of 1880 providing for repayments where an entry has been canceled for conflict, “or where, from any cause, the entry has been erroneously allowed and can not be confirmed.” And so, to argue, as in the instant case, that because the entry was allowed it must have been properly and could not have been erroneously allowed is merely to argue in a circle, and to render the said act of 1880 nugatory and without any effect.

With respect to the allegations of fraud, apart from the good faith affidavit, it is only necessary to call attention to the uncontradicted record evidence that before deeding half of the land to Meyer claimant consulted a lawyer in excellent standing in the community; indeed, one so highly regarded that he afterwards served six years as attorney general of his State and was later a candidate for the highest office in the State; that he relied fully upon the advice given him that the transaction was legal, had the deed recorded promptly after its execution, and never made the slightest effort to conceal the fact of his having given such deed. How any fraud or attempted fraud can be inferred from such a state of facts we are unable to understand. Instead of being guilty of fraud, claimant here had at great trouble and expense and in the face of the opposition of a rich and powerful corporation, the Sheridan Coal Co., established *155fraud on the part of the previous entryman and secured the cancellation of that entry. Had he not acted the part he did the homesteader would have secured title to the land on the payment of a small sum, and the Government ivould have lost the amount paid by Dr. Frackelton and the additional money which ivas paid by the entryman who finally secured title. *Demple*v. *Coe,*38 L. D., 528. Therefore instead of being a fraud committer, Dr. Frackelton was virtually a public benefactor.

That there ivas no fraud is established by a leading decision of the United States Supreme Court, affirming this •court. *United States*v. *Colorado Anthracite*Company, 225 U. S., 219. Therein, after citing the provisions of the coal land law, the court, through Mr. Justice Van Devanter, said:

“ But there is no prohibition, express or implied, against an entry by a qualified persón for the benefit of another person or association, where he, or it, is fully qualified to make the entry in his, or its, own name, and is not seeking to evade the restrictions in respect of quantity. * * *

“ In other words, the fact that the entry was made in the name of Stoiber for the benefit of the company, does not, without more, establish that it was forbidden or fraudulent. There is no finding that the company, or any member of it, had had the benefit of the law, or was seeking to acquire more than this 160 acres. So, for aught that appears, there was no legal obstacle to the entry being made in the company’s name, and the fact that it was not may have been due to matters not affecting its validity or integrity. We do not overlook the finding that the application was accompanied by- an affidavit stating that Stoiber was making the entry for his own use and benefit, and not directly or indirectly for another. Of course, the other findings show that that statement was untrue. Had it remained uncorrected it probably would have deceived the officers of the Land Office and prevented any inquiry into the qualifications of the company. But, according to the findings, it did not remain uncorrected, and could not have deceived the officers, for, at the hearing in the contest which preceded the allowance of the entry, it was admitted and shown that Stoiber was not seeking to acquire the land for himself, but for the company, to which he already had given a quitclaim deed. The statement in the affidavit therefore became harmless, for it was upon the evidence given in the contest that the entry *156was allowed. It follows that upon the findings it can not be said that the arrangement between Stoiber and the company was forbidden by law, or that the entry was fraudulently procured.

“ But it is said that an affirmative finding that the entry was not fraudulently procured is essential to sustain the judgment. To this we can not agree. Fraud is not presumed, and one who bases a right or defense upon it should allege and prove it. The Government’s answer contains no allegation of fraud, and the silence of the findings may rightly be taken as showing that none was proved. The findings fully respond to the issues presented by the pleadings, arid, we think, sustain the judgment.”

The case at bar is even stronger than the one cited because herein the affidavit was never executed, whereas the affidavit was executed there and filed. Moreover, in the present case there is no evidence to the effect that Frank Meyer had had the benefit of the coal land law, or was seeking to acquire more than the undivided half interest of this 160 acres.

*Mr. Charles H.*Bradley, with whom was *Mr. Assistant Attorney General William L.*Frierson, for the defendants.

Campbell, *Chief*Justice,

reviewing the facts found to be established, delivered the opinion of the court.

The plaintiff filed in the year 1903 an application for the purchase of coal lands and paid the purchase price. Subsequently upon a contest between him and one Dietz it was ruled by the Land Office that plaintiff’s “ entry was made contrary to law and can not be sustained.” As a result of the contest, which extended over a period of several years, the claims of both Dietz and plaintiff were set aside. In June, 1909, the plaintiff applied to the Commissioner of the General Land Office for the return of the purchase money paid on the land in question, and his application was refused. He appealed from the Commissioner to the Secretary of the Interior. Upon this appeal it was held by the Secretai-y that the entry had been procured “by concealing from the register and receiver the fact that at the time of making his entry, he (plaintiff) had made an agreement to convey one-half of the land to another person. If that fact had not been concealed, his entry would not have been allowed.” *157Repayment was refused. Commenting on several rulings of the department in such cases it was said by the Secretary that the department had held *“*that one who suppresses information which would defeat an entry commits a fraud as great and as far-reaching as if he were to make a false statement upon which the entry was allowed”; that such an entry should be canceled for fraud, and when so canceled repayment of the purchase money would not be made, citing *Latham*Case, 20 L. D., 379, and the Secretary’s opinion concludes:

> “ The department believes that the decision in that case properly construes the repayment act, that it was not the purpose of Congress to authorize the repayment of moneys paid in connection with an attempt to acquire illegally a tract of public land. To hold otherwise would place a premium on fraud and concealment which would seriously interfere with the administration of the public-land laws.”

The plaintiff then brought his action in this court to recover the purchase price he had paid, relying upon section 2 of the act of June 16, 1880, 21 Stats., 287, and section 1 of the act of March 26, 1908, 35 Stats., 48. Quoting these sections of the law, the brief for plaintiff states:

> “ It is our contention that claimant’s coal-land entry was erroneously allowed, since he failed to file with it the affidavit required by paragraph 32 of the coal-land regulations, to the effect that the entry was being made for his own benefit exclusively; and that there was no fraud or attempted fraud in connection with the entry.”

The first branch of this contention is referable to the act of 1880, and the second to the act of 1908. Section 2 of the act of 1880 provides:

> *“*In all cases where homestead or timber-culture or desert-land entries or other entries of public lands have heretofore or shall hereafter be canceled for conflict, or where, from any cause, the entry has been erroneously allowed and can not be confirmed, the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money, and excesses paid upon the same, upon the surrender of the duplicate receipt and the execution of a proper relinquishment of all claims to said land, whenever such entry shall have been duly canceled by the Commissioner of the *158General Land Office, and in all cases where parties have paid double-minimum price for land which has afterwards been found to be within the limits of a railroad land grant the excess of one dollar and twenty-five cents per acre shall in like manner be repaid to the purchaser thereof or to his heirs or assigns ”;

and section 1 of the act of 1908 provides:

> “That where purchase moneys and commissions paid under any public-land law have been or shall hereafter be covered into the Treasury of the United States under any application to make any filing, location, selection, entry, or proof, such purchase moneys and commissions shall be repaid to the person who made such application, entry, or proof, or to his legal representatives, in all cases where such application, entry, or proof has been or shall hereafter be rejected and neither such applicant nor his legal representatives shall have been guilty of any fraud or attempted fraud in connection with such application.”

The contention that the entry was “ erroneously allowed ” because of a failure to file the affidavit required by paragraph 32 of the regulations is clearly untenable in view of the finding that such an affidavit was in fact filed. In some .of the many hearings regarding plaintiff’s entry, had before proper officers, it appears to have been accepted as a fact that while plaintiff’s application contained the necessary averment, in compliance with paragraph 32, and was signed by plaintiff, the officer had not affixed his jurat thereto, and hence that the paper was not sworn to, but a later, and clearly the more accurate, view of the transaction was taken. The earlier view arose from treating two sheets as distinct, when, in fact, they were parts of one paper which was duly sworn to and filed. The act of 1880 restricts the right to repayment to cases in which the entry has been erroneously allowed, “ an expression which denotes some mistake or error on the part of the land officers, whereby an entry is allowed when it should be disallowed, and not some fraud or false pretense practiced on them whereby an applicant appears to be entitled to the allowance of an entry when in truth he is not.” *United States*v. *Colorado Anthracite*Co., 225 U. S., 219, 224. This case arose prior to the act of 1908, and furnishes no support to plaintiff’s contention that *159the entry was “ erroneously allowed.” The facts show that he filed the affidavit required by paragraph 82.

Nor does plaintiff sustain his right to recover by virtue of the act of 1908. The facts show that he applied to purchase the coal land, alleging that the entry was for his own benefit and not for the use and benefit of any other party. But when his application was filed on July 8 the plaintiff had executed to one Meyer a warranty deed for an undivided one-half interest in the land. This deed was dated and acknowledged before a notary public on July 6, two days prior to the filing of the application. It was absolute in terms, and the theory that it was intended as a mortgage to secure a loan from Meyer finds no support in the tendencies of the evidence. It is true that plaintiff consulted counsel as to his right to borrow money from Meyer to pay for the land, and was advised that he could give an interest in the land as security, but the transaction did not take that course. Plaintiff conveyed to Meyer an undivided half interest in the land, and later, after the purchase money had been advanced by Meyer to plaintiff, the latter executed a mortgage on his remaining undivided half interest to Meyer to secure, not the $3,200 of purchase money, but the sum of $1,840. Meyer had paid approximately $600 toward the development of the land and the expenses and costs of contest. The deed to him recited a consideration of $2,000 and the purchase price to enter the land was $3,200, which Meyer also advanced. The mortgage evidently represented the. difference between the consideration named in the deed and the total sum advanced by Meyer. Advice of counsel will not avail plaintiff under the facts of this case. *Williamson case, 207*U. S., 425, 453.

The deed and ‘the mortgage were filed for record on July 14, 1903, and. as late as 1911 Meyer and plaintiff recognized the true character of the deed when Meyer executed to plaintiff a quitclaim of his interest in the land and a release of any damages that could be claimed by reason of the warranty in plaintiff’s deed to Meyer.

It is significant that plaintiff was not financially able to make the entry, and that Meyer not only advanced to plaintiff the necessary purchase price but aided with the funds *160necessary to defray the expenses and costs of contest and for development purposes. Meyer accompanied plaintiff to the office of the attorney and was present when plaintiff’s contest of the Lynch entry was prepared, and he accompanied plaintiff to the land office when the purchase money was paid. He was one of the witnesses who corroborated the statements in plaintiff’s application. With a deed from plaintiff in his possession for an undivided half interest in the land Meyer swore that the statements in plaintiff’s application were true, and one of these was that the land was being entered for plaintiff’s benefit and not for the benefit of another. Manifestly, Meyer had an interest different from that of a lender of the purchase money. Plaintiff was not familiar with the mineral lands and employed one Hillock to represent him in making the nonmineral affidavit and development of the land. Both Meyer and Hillock had exercised their several rights to enter coal land by purchase, and it seems clear that the plaintiff allowed them to use him in an effort to get land which neither of them could lawfully enter in his own name or right.

The act provides for repayment of the purchase money to the person who made the application for entry where the entry is rejected, and the applicant shall not “have been guilty of any fraud or attempted fraud in connection with such application.” We ihink there can be no doubt that if a patent had jssued uainfciff upon the application that was made and was subsequently attacked by the Government upon the ground that it had been procured in violation of the statute authorizing purchase by'an entry man for his own benefit and not for the benefit, direct ’or indirect, of another, a court would have set aside the patent puffer the facts developed in this case. *United States*v. *Trinidad Coal Co.,*137 U. S., 160, 167; *Keitel Case,*211 U. S., 370; and *Colorado Anthracite Co. Case, supra; Northern Pacific Coal Co.,*7 L. D., 422. As early as 1895 the Land Office has held that where the entryman knew the entry was not for hiss own benefit but for the benefit of another the entry was fraudulent, and the applicant would not, upon cancellation of the entry, be repaid the purchase price. *Mary Latham,*20 L. D., 379. The Secretary’s opinion in the instant case *161follows the same rule and seems to us to be just as well as legal.

The plaintiff had introduced testimony to show that he bore a good character in the community in which he lived. He is a dentist by profession and his neighbors speak well of him. The plaintiff testifies that he was not questioned by the land officers upon the matter of any transfer by him, or whether he was solely interested in the proposed entry, and without objection he was allowed to state that if he had been questioned, he would have disclosed the entire transaction. But the fact remains that plaintiff made a statement that was untrue; that it was a statement material to a proper application to purchase the land; that he brought with him two persons to corroborate his application, and one of them was the person to whom plaintiff had already conveyed an undivided half interest in the land, and to whom he intended to execute a mortgage upon the other half; and this person also made affidavit to the statements in plaintiff’s application, and that it was upon this application that the entry was allowed. The statement as made misled the land office to the extent that a final receipt for the purchase money was issued. If the statement had not been made, or if the real facts had been stated, it must be assumed that the application would have been rejected.

We concur in the view expressed by the Secretary in his opinion upon this question, and plaintiff’s petition will be dismissed.