The weekly tribune. [volume] (Great Falls, Mont.) 1891-1894, 1893-05-12
.sionally present on the land,

occhrI Oily visited it. His scanty i'm
~provements, his almost continuous en-
ployment elsewhere for wages, board and
lodging. and his own refusal to testify or
failure to grasp an opportunity to do so
confirm us in the conclusion that his
residence on the land was wholly tictiti-
Gus.
His good faith being questioned and
IN doubt, his failure to testify solves the
doubt against him. L. S. vs.. Sawbridge
QlL ~. 5I9D
Though plowcd, no crop was raised.
No fencing was done. though cattle
were free to stray over the land. Thus
his cultivation was a mere pretense,
simply Il colorado compliance with the
requirements of the law. None of his
actions were those Of a man who seeking
title to the land in good faith
for a home. even his house or shack
being shown to be scarcely habitable in
winter. This conclusion finds further
support, If such were needed, in other
phases OF the case. 1t is charged Kom
mers had sold the land and had made his
entry IN the interest of n. II. Porter.
y. l. Porter is the superintendent of the
Cascade Land company, for whom both
kommers and Wink worked during most
these years they were claiming the land.
Winks statements are testified to, to the
effect that he contested Hiaven's entry
with the understanding he was to turn
the land over to y. T. Porter and j. O,
Gregg when be proved up; that he was
to sell 1t to them, and that he, Wink,
was finally compelled to rellnquish be-
cause of an attachment levied on his
wages for attorneys fees in his contest
against Haven. which he did not I'VE.
the attorney being employed by Porter
and Gregg, and that he was anxious to
hold the land for himself. but that they
had put a ''squatttr." Kommers. on it.
kommers' statement is also testified to
that Porter and Gregg asked him if he
would use his homestead right on a
ranch; that they would give him 500 il
he would Contestant submits in evi-
dence "A certified copy of a warranty
deed Of record from Kommers TO II. II.
Porter, son of y. L. Porter, Of the land
in controversy, ~reciting a consideration Of
$1,000. On behalf of claimant this is
alleged to be a mortgage, and IA separate
instrument containing the alleged terms
of the conveyance is introduced to show
it such. intended to secure a loan al
legged to have been made to kommcrs by
, j. o. Gregg.
y. deed from II. IL. Porter with name
of grantee blank, for the same land is
introduced. alleged to be III escrow with
claimants counsel with power to enter
the name Of kommers therein if he COM
i, Piled with the terms of the agreement and
conveyance securing the alleged loan. ii.
IL. Porter's testimony in a previous case is
in evidence, wherein he states it was con
, veyod TO him at his fathers request; that
!. he didn't know if it was held 10y him in
trust for the Cascade Land Co. or not;
that he decided it to no one; he had for
> gotten whether he did or not. lie nov
t~cstiiics he did execute such a deed, at
} his fathers request, he thinks. Ills
father, y. T. Porter, t~estiiies he had his
sol allow his name to be used to favor j.
o. Gregg, while Gregg t~estiiies he does
[ not know as he had any particular rca-
; son for proceeding in this way to ccure
a loan and for using Porter's name in
stead Of his own in the deed, but he does
not care to appear in very much of the
I business he transacted. lie afterwards
! says the principal reason was that kom-
. mers did not want to trust the deed too
l far out of his hands.
We do not believe these attempted eX-
plantations can remove from Kommers
!; deed the stamp of al absolute convey
! ance. ''lnserting the terms upon which
a conveyance may be made in a separate
instrument of defeasance," says Mr..
Q Washburn, is ~disapproved of by the
4 courts on account of its liability to lead
to accident or abuse Washburn on
: Real Property, las. We are Of the
opinion the abuse existed in this case
9 and hold Kommers' deed to Porter an alb.
solute conveyance. Another circum-
, stance, and which seems an attempt by
those holding the land to cast an anchor
to windward in an endeavor to ensur
holding the land in the end, is this:
Dec. 10. 1892, y. B. Spillman filed az
u application to contest this entry, alleging
Q an absolute sale by kommers; $. b.. Rob
bins appeared as one of his co~rroboratine
witnesses. S. b. Robbins is also witncs;
o of Kommers' deed to Porter and alsC
q witness of Porter's alleged deed in blank
In the case of Porter I'll. H. V. Bon
ney now pending on appeal in this of
l flee. both Robbins and Spillman ap
pearcd as witnesses FOX Porter the sam
y, Porter IA party to these deeds, and the
evidence in that case direct testimony
shows Robbins. y. Il. Porter and j. o
Gregg are associated in business, ant
that Spillman is in the employ of Rob
IL bins.
Taking into consideration all these
circumstances as we properly can do
X We can not doubt the deed from komI
mers to Porter conveyed all he had tC
convey. and there is much reason to be
lieve he was all along in the employ OF
Porter and Gregg under agreement tc
secure the land for them. We are there,
Q fore Of the opinion cash entry No. iS2i
y should be cancelled as also No. obs on
which it is based.
=. \. SwIGGETr. Reg.
j Gro NJ. Bourgeois. Rec.