No. 2,260.

#### SAMUEL BURRELL, Respondent, *v.*ROBERT A. HAW, Appellant.

Public Lands. — Contested Patent. — Before a person will be permitted to call in question tbe proceedings through which, another has obtained a patent to public lands, he must show in himself all the-conditions neees-sary|to enable him to pre-empt.

Idem. — Butt op Land Oeeicebs. — It is the duty of the proper officers in the Land Offices of the United States, to ascertain whether parties possess the requisite qualifications to entitle them to pre-empt lands, and their decision upon questions arising as to such qualifications is binding upon the parties, unless some question of fraud or trust intervenes.

Idem. — Citizenship.—EuAUD.-The fact that an applicant under the pre-emption laws of the United States, after filing his declaratory statement, made a declaration of his intention to become a citizen, is but' evidence tending to prove that at that time he was not a citizen, but would not necessarily prove fraud on the part of the applicant.

Appeal from tbe District Court of tbe Eigbtb District, Humboldt County.

A demurrer to tbe complaint was overruled. The Court, found among other facts, tbat tbe defendant in tbe year *3741856, asserted a claim to the land in controversy and filed a declaratory statement of his intention to pre-empt the same in the proper Land Office, and therein declared that he was a citizen of the United States; that, on the 29th day of October, 1858, defendant declared under oath, according to law, his intention to become a citizen of the United States; that the defendant, in the Spring of 1858, made and executed to one James Clark a conveyance of the land in controversy, and that the deed was afterward destroyed by Clark, at the request of the defendant, in order to enable him (the defendant) to obtain a title to his land.

The Court rendered judgment in accordance with the prayer of the complaint, and defendant appealed.

The other facts are stated in the opinion.

*S. M. Bucle,*for Appellant.

*Goffroth & Spaulding,*of Counsel.

*Mrst*— The complaint does not state sufficient facts. The plaintiff must bring himself into privity with the United States, or he is not in a position to attack defendant’s patent. It must appear that he has performed every act required by law to entitle him to the land in dispute; and if he has failed in any particular to do this, he is a mere stranger, and not entitled to any standing in Court. He did not file his declaratory statement according to law. He merely avers that such a statement was deposited in the Post Office, properly directed, in 1855. For aught that appears, the plats were not then returned; and if not, filing would be void. There is no averment showing when the plats were returned, or that his filing, nearly three years thereafter, was in due time to entitle him to pre-empt. *(People*v. *Jaclc-son et al.*24 Cal. 632; *Page*v. *Hobbs,*27 Id. 484; *Megerle*v. *Ashe,*33 Id. 83.)

*Second*— If plaintiff were in a position to assail the patent of a defendant for fraud, the burden of proof is upon him; and he must make the fraud appear beyond all reasonable doubt.

*375The findings show that no fraud was proven. This was a finding for defendant on the charge of fraud, and defendant was clearly entitled to a judgment. The patent could only be set aside for fraud made clearly apparent, and then only by the proper party, viz: the United States Government, or some person having a privity of right with it clearly established, (15 H. 272, 25 Id. 246).

Third-1-The judgment cannot be sustained upon the facts found. The *bona fides*of the settlement upon this land by plaintiff was directly in issue on the trial of the case before the Land Office, and this question is therefore res *adjudicata.*Again, the gist of the action is fraud; and unless plaintiff established fraud he cannot recover. There is absolutely nothing of the kind in the record.

*W. Brocfa*and *Geo. Gadwalader,*for Respondent.

*First*— The complaint is sufficient, all necessary aver-ments required by law being stated. The failure of plaintiff to aver that the plats were on file when his application was first made, does not affect the equities of the case, as that is a matter of which Courts will take judicial notice. (2 Green. Iowa, 191.)

If it was a defect, it was-cured by the contest before the officers of the Land Office, as no trial could have' been had without the plats were on file at that time.

*Second*— Appellant Haw was not a qualified pre-emptioner at the time of filing his declaratory statement. The fact that in 1858 he declared under oath, according to law, his intention to become a citizen of the United States precludes the possibility of his being a citizen and qualified pre-emp-tioner in 1856, the time of filing his declaratory statement to pre-empt.

The ruling in 13 Oal. 304, cited by appellant, is not in point in this case, .as it appeals that, on the trial of the contest before the Register and Receiver, it was not known to the respondent that appellant was not a citizen of the United States.

*Ihird*— The determination of the Register and Receiver *376was only conclusive against tbe United States, and is not conclusive between tbe individual claimants. *(Megerle*v. *Ashe,*33 Cal. 89; *Garland*v. *Wynn,*20 How. 6 ; *Bird*v. *Ward,*1 Mo. 398. -

*Fourth*— Tbe land officers were imposed upon by misrepresentations, suppression of facts, and false statements, and were thereby induced to render a decision in favor of appellant, and by virtue of wbicb be obtained a patent from tbe United States.

It bas been repeatedly beld by our- highest tribunals that where a person obtains a patent by a suppression of facts of a case, be will not be permitted to derive any benefit therefrom, and that tbe patent will inure to tbe benefit of tbe party entitled to tbe land. *[Gannon*v. *White,*La. Ann. 90, and cases therein cited; *I/ytle*v. *Arkansas,*22 How. 202; *Cunningham,*v. *Ashley,*14 Id. 377; *Bernard*v. *Ashley,*18 Id. 43; *Gcurlynv. Wynn,*20 Id. 8; *Sennan*v. *Wood,*16 La. Ann. 263.)

*Fifth*— The *mala fides*of Haw’s entry is shown by tbe finding that in 1858, about two years after tbe filing, be sold tbe land to one James Clark. This will enable plaintiff to maintain bis judgment on tbe findings. (Lester’s Land-Laws, p. 390, Opinion No. 435.)

After finding that tbe deed was made and afterwards destroyed, it was further found, “That tbe deed was destroyed by Clark at tbe request of Haw, in order to enable him ( Haw) to obtain a title to tbe land.”

*Sixth*— Tbe demurrer is too general. Had it pointed out tbe specific objection, tbe complaint might have been re-mediated by amendment. Both parties assumed that tbe township plat was filed, and both parties filed declaratory statements and this, with their settlements and improvements, brought them in connection with tbe Government, before whose Land Office they were conflicting claimants. Tbe suit is based upon two violations of tbe United States Pre-emption Laws; tbe first being a want of citizenship, and tbe second that Haw bad sold out to one Clark. Either of these facts being true, Haw could not, according to law, *377obtain title from tbe United States.oyer Burrell, a qualified pre-emptioner. *(Lindsay*y. *Haws,*2 Black. U. S. 558; *Minnesota*v. *Bachdder,*1 Wal. U. S. 115.)

Temple, J.,

delivered tbe opinion of tbe Court*

We tbink tbe demurrer in tbis case ought to have been sustained. Tbe action was brought to obtain a decree declaring that tbe defendant — who bad obtained a patent from tbe United States — held tbe same in trust for tbe plaintiff, and that be be compelled to convey tbe same to plaintiff. Tbe ground of tbe action is, that the land officers were imposed upon by misrepresentations and fraudulent practices of tbe defendant, and thereby induced to issue tbe'patent to him, instead of tbe plaintiff, who was a contestant before tbe Begister and Receiver for tbe right to pre-empt.

The‘first point on tbe demurrer is, that tbe complaint fails to show that the plaintiff was in a condition to pre-empt, because it does not aver that at tbe time be filed bis declaratory statement tbe plat of land bad been returned to tbe Land Office. Tbe complaint avers that plaintiff made bis declaratory statement on tbe 25th of December, A. D. 1855, and put tbe same into tbe Post Office at Eureka, properly addressed to tbe Register at Marysville. It is not averred that tbis was received, or filed in that office at Marysville. It is then averred that in December, 1857, be discovered that tbis statement was not on file at tbe Register’s office, and another was then made and sent in tbe same manner, which was filed in December, 1857. There is no averment as to tbe time tbe survey was made, or plat returned. Of course tbe foundation of plaintiff’s claim is, that be was entitled to pre-empt tbe land, and, but for tbe fraud practiced by tbe defendant, be would have been able to obtain tbe patent himself. He must show all tbe conditions necessary to enable him to pre-empt, before be can call in question tbe proceedings through which tbe defendant obtained bis patent. *(Page v. Hobbs,*27 Cal. 483; *People v. Jackson,*24 Cal. 630; *Megerle*v. *Ashe,*33 Cal. 74.)

*378Tbe findings in the case are also defective. The proper officers in the Land Offices of the United States were required to ascertain whether the parties possessed the proper qualifications to entitle them to to pre-empt the land, and there can be no doubt that their decision upon questions arising as to such qualifications is binding upon the'parties, unless some question of fraud or trust intervenes. The question of fraud, therefore, was an affirmative issue to be made out * by the plaintiff. The fact that the defendant made a declaration of his intention to become a citizen, is but evidence tending to prove that at the time he was not a citizen. It is not the ultimate fact to be proven, and that fact of itself would not necessarily prove fraud. The finding upon this subject is clearly to the effect that the plaintiff had failed to ■ make out his case. So, the finding in regard to the execution of the deed to James Clark, nothing found which is necessarily implies that there was any suppression of truth, or any fraud whatever practiced by the defendant. All the facts concerning this deed may have been before the proper officers of the United States, and they may have found that no sale was consummated or intended hy it.

Judgment reversed and cause remanded, with directions to sustain the demurrer to the complaint.