The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1890-09-16

uAAu plcN tVlAul0 " ~ ~, Un<eSs
he decision q the suprvme coort afOssssld, en-
thorisod 70 exercise his supervisory control,
and order the entries cancelled. NumCrous d.
cfsions sustain this pouit1ou. In the case Of
Haxkness W Underhill, lit Black, III, it y
held that fraudulent entry Of public land II
lowed g sreeisser a1d lscsiv v.s upon n ialss
csisd b. the commissioner q me gen eral land
ONCE. !" Bee also Erisbie ~. whitney, oh
Wsilaoe. 1855 where tho supreme court SAY:
"When al thoss prerequisites ere complied
with and the claimant paid the prtce lof the
land he Is entitlsd to certidcats from the regis
ter and receiver, and Il in othsr rsspscts the
receiver patent which, Tor the nrss time. invests
him with the legal title 70 the land."
In 81 Howard, 81. We find "whers there has
been frand or mistake the patent may b with
held"
II IL conceded By ali that when patent issues
the executive Departments OF the government
loses al Jurisdiction over the entry, bat even
alter the patent 10 issued, exceps IN the hands
Of an innocent purchaser. the entry may be cam
celed for fraud Or mistake upon due prUof OF the
same IN tho courts
The jurisdicsiou Of the land department over
any entry does not cease until the hnal passing
to title By the issuance Of patent The pur-
chaser from the government Of tract OF
land before patent issues holds only the tit.
sble title to the land - between him and the
government he 10 entitled 70 the legal title II he
has complied with the law. II, however, In se-
curing this equitable title he has perpetrar
ted fraud or mistake II made, the govern
ment may dfsavou the Transaction and refuse
to complete title
The case Of Wilson VI Fine does not distin-
guis between patent and = certificate The
learned Judge holds that in one case equally
with the other the United States. 70 protect IT
.elf from fraud, must 70 into the courts. Under
this view Of the law. the executive department
must first fnd that the entry was ffaudenty
made and then 20 into the conrts and secure
cancellation Of the entry through judicial pro
cess
Such view In our Judgement Il preposterous,
and We think the supreme court in the cases
cited by the counsel fall utterly to sustain their
position But on the other hand the position
of the land department, ~ shown by it, num-
erous decisions. Is fully in compliance with the
law % laid down BY the highest judicial tribu-
nal Of the United States.
The second proposition maintained By the
claimants 10 that the transferees are innoeent
purchasers and are entitled to protection.
It II trae that the evidence does not tend to
attaint or charge Messn Hawley or Alger with
any fraud In connection with those entries, and
% far a. the evidence shows, they are free from
any knowledge Of fraud in the procurement of
the same.
1t has, however. been uniformly held by the
land department that prior to the Issuance Of
patent. there can be no such thing - an inno-
cent bona fde purchaser Of land. The
legal title ID still in the United States,
and the purchaser Of the land takes
the same charged with notice Of the supervisory
control OF the commissioner over the same and
all defects Of title. This doctrine Is enunciated
by Mr.. Jusfice Miller in the case Of Root W.
Shields, LIST Wo0lworth. $40. He says: at 10
further insisted upon the behalf of the defend
ants that they ere bona fide purchasers and that
they, as such, are entitled to the protection Of
the court ! think It pretty clear that some at
least OF the defendants purchased and paid their
money without any knowledge in fact Of any
defect In the title. yet ih.y are not bona fide
purchasers for valuable consideration without
notice in the sense in which the terms are en-
ployed in the courts Of equity. and this for sew
erai reasons They purchased before
the issuance OF the patent Until
the issuance of the patent the legal title re-
manned in the United States and
In order to establish himself In the character of
bona fde purchaser 90 as to be entitled to the
protection of chancery the party must show
that under his purchase and By the conveyance
to him he acquired the legal title" This rule
the interior department has always followed.
See I'd Copp's Land Laws, 421.
U. q vs. Johnson, 9th Land Decisions, Az
Smith va Custer ct al. 9Th i'd go.
Travellers ms Co.. eth i'd. 3l6.
Moreover the testimony and contracts entered
into between Hawiey, Alger and stephen 8 Bal
ley show that they only purchased this land
conditionally They paid q certain sum down.
and the balance OF the purchase price to be paid
upon the issuance of patent to the same.
They therefore stand charged with notice
of the defect in the title to these
tracts, In fact to guard themselves against the
contingency that patent may never issue, ex-
pressly stipulated that they Will not complete
ekA <ab4~u< 81 A.
fected. The contention that they are bona ide
purchasers without notice seems to be, there
TORE unfOHnded both in law and in fact
We might prolong this discussion further bat
1t would be useless, as the land department has
uniformly decided the questions according to
the line of decisions above cited and indicated.
will therefore pass from these points and take
up the question Of fraud.
We have carefully considered the testimony
- to whether there was fraud by the entryman
in making these entries for the benefit of Bailey
and Lord, and while hnd by taking the afiida-
Wits submitted with the testimony enough dis
crepancy to justify strong suspicion that the
entries were obtained fraudulently by Bailey or
by Lord. do not find direct aud positive proof
sufficient to justify the finding of fraud It il
necessary that in cave OF fraud the proof
should be full, positive and uneQuivocal and
the United States has not made ont its proof of
| fraud in the procurement of these entries
| The second aspect of the case, az to whether
| the lands were illegally entered under the tim
Der and stone acts, in that said lands are aeri.
| cultural in character, is . much more serious
| que stion.
| The UNMARRIED ruling of the department since
| the case OF Hughes VS.. Upton. I'd l. D., 1874. hss
been that there are two prerequisites before an
entry can be made under the act OF June g. 1873
| l. The land must be OF such Q character that
| it would be unfit for cultivation after the tim
I! Der shall have been removed.
2. 1t must be valuable chiefly for its timber.
1t is held by Secretary Teller in said case that
| the phrase unfit for cultivation" means that
| the greater portion of the land in each of the
smallest legal subdivisions would not raise
| ordinary crops OF average quality and quantity
| after the timber is removed.
hove considered the testimony in the Iipht
| of these decisions and have founded nv con,
illusions from the evidence. taking them as
| basis.
There are many points in the testimony
have been unable to consider owing to lack of
time and opportunity. and have also been un
able to give the reasons and full discussion of
the evidence upon which l have decided the
| same.
These entries are in compact body and con.
tain some 1900 acres. The land is situated
| along the 6amish River valley, to the south of
Samish lake In Whatcom county, Washington.
| 1t Is oil covered with an excellent growth Of
| very valuable FIR timber and the principal and
only question il the fitness of the land for aRri
| culture efter the timber is removed
| The government produced o. the hearing
| some nine witnesses, who were ell farmers i'm
| the immediate neighborhood OF the land. ana
| from their appearance and tanner of giving
| testimony, persons of more than average in.
teiligence. The examination made by them
| consisted OF careful inspection of each forty.
| acre SUBDIVISION and an estimate of the nature
of the SOIL then and there noting the results Of
| their estimates. Their testimony contrasts