[84]erty is still controlled and probably owned by himself; that the position of the property and of the parties to the suit has not materially changed during the time the plaintiff has been in default, nor the property shown to have rapidly risen in value, and that the rights of no bona fide purchaser have intervened.

We have no desire to qualify in any way the long line of cases in this court, too numerous even for citation, in which we have held that where the fraud is constructive, or is proved by inconclusive testimony, or by evidence falling short of conviction, and the property has greatly increased in value, great diligence will be required in the assertion of the plaintiff's rights. But these were all cases either of bills to establish a trust, to open settled accounts, bills not involving fraud, or where the fraud was not clearly proved, or where, with knowledge of the facts the fraud had been deliberately acquiesced in, bills to impeach judicial proceedings, or where the property had passed into the hands of persons innocent of the fraud, or with no actual notice that a fraud had been committed.

Granting all that may be fairly claimed of these cases, there is another class having a different bearing, in which it has been held that in case of actual fraud a delay even greater than that permitted by the statute of limitations is not fatal to the plaintiff's claim. The leading case is that of Michoud v. Girod, 4 How. 503 [11: 1076], which was a case of actual fraud committed by trustees of real estate against their cestui que trust. A bill filed thirty-six years after the commission of the fraud was held not to have been too late. In that case a purchase by an executor through a third person, of property of the testator, was held to be fraudulent and void, though the sale was at public auction, judicially ordered, and the result of the evidence was that a fair price was paid. Said Mr. Justice Wayne, in delivering the opinion of the court (page 560 [11: 1101]): "In a case of actual fraud, courts of equity give relief after a long lapse of time, much longer than has passed since the executors, in this instance, purchased their testator's estate. In general, length of time is no bar to a trust clearly established to have once existed; and where fraud is imputed and proved, length of time ought not [55] to exclude relief. There is no rule in equity which excludes the consideration of circumstances, and, in a case of actual fraud, we believe no case can be found in the books in which a court of equity has refused to give relief within the lifetime of either of the parties upon whom the fraud is proved, or within thirty years after it has been discovered or becomes known to the party whose rights are affected by it."

So, in Prevost v. Gratz, 6 Wheat. 481 [5: 311], it was said by Mr. Justice Story: "It is certainly true that length of time is no bar to a trust clearly established; and in a case where fraud is imputed and proved, length of time ought not, upon principles of eternal justice, to be admitted to repel relief. On

the contrary, it would seem that the length of time during which the fraud has been suc cessfully concealed and practised is rather an aggravation of the offense, and calls more loudly upon a court of equity to grant ample and decisive relief."

In Baker v. Whiting, 3 Sumn. 475, one Tidd, being the owner of certain land, employed the defendant Whiting as his agent to care for the same, pay all taxes, etc. Whiting allowed the land to be sold for taxes in 1821, and bought it in himself, keeping the plaintiff uninformed of the facts. The bill was filed in 1837 by the heirs of Tidd, who died shortly after his employment of Whiting. In delivering the opinion, Mr. Justice Story remarked: "Then it is said the plaintiffs are barred from any right in equity by the mere lapse of time. But what is more particularly applicable to the present case, twenty years had not elapsed before the filing of the bill; and I apprehend that, in case of a trust of lands, nothing short of the statute period which would bar a legal estate or a right of entry would be permitted to operate in equity as a bar of the equitable estate."

In Allore v. Jowell, 94 U. S. 506 [24: 260], which was a bill to cancel a conveyance of land alleged to have been obtained from the grantor a few weeks before her death, when from her condition she was incapable of understanding the nature or effect of the transaction, it was held that a lapse of six years before bringing suit to cancel the conveyance could not avail the defendant, where he [56] had possession of the land, and a reasonable rent therefor was equal to the value of his improvements, and there had been no loss of evidence preventing a full presentation of the case.

In Meador v. Norton, 11 Wall. 442 [20: 184], three sisters obtained in 1839, from the governor of California, a tract of land which was approved by the departmental assembly, and possession delivered. Some years after, the husband of one of the sisters, named Bolcoff, suppressed or destroyed this grant, and fabricated a pretended grant to himself, and also certain other papers intended to prove the genuineness of such fabricated grant. Upon these papers the sons of Bolcoff, he having died, obtained a confirmation of their claim to the land, the land commissioners supposing that the fabricated papers were genuine; and upon such decree a patent issued to the claimants. The fabricated character of these papers being discovered, the grantee of the rights of the three sisters brought a suit in equity to have the defendant holding under the patent declared trustee of the legal title, and compel a transfer of that title to him. Held, that the suit, which was begun in 1865, would lie, and that laches could not prevail as a defense where the relief sought was granted on the ground of secret fraud, and it appeared that the suit was commenced a reasonable time after the fraud was discovered.

In Connecticut General L. Ins. Co. v. El dredge, 102 U. S. 545 [26: 245], a deed of trust of lands to secure a promissory_note

the situation of the parties, the extent of
their knowledge or means of information,
great changes in values, the want of proba-
ble grounds for the imputation of intention-
al fraud, the destruction of specific testi-
mony, the absence of any reasonable impedi-
ment or hindrance to the assertion of the
alleged rights, and the like." A bare state-
ment of these facts will show that it has no
application to the case now under considera-

was released without the surrender or payment of the note, and without express authority of the holder. It was held that a subsequent purchaser with notice took the land subject to the equitable rights of such holder. The extent of the delay does not clearly appear in the report, but in the opinion of the court it is said by Mr. Justice Field: "The company, as already stated, must be deemed to have known of the want of power in the trustee to release the propSo in Felix v. Patrick, 145 U. S. 317 [36: erty from the Coburn deed, and it does not lie in its mouth to object that the complain- 719], where a bill was filed after a lapse of ant did not sooner seek to set aside the pri- twenty-eight years to impeach a title fraudority of lien thus gained; nor can it aver that ulently acquired through the location of cerhis claim to have the instrument canceled, tain land scrip, and the land was shown to by which this priority was secured, is a stale have increased enormously in value by being [57]one, *when asserted within the period allowed taken within the limits of a city, and to by law, and no rights of third parties as bona have been largely occupied by persons who fide purchasers have intervened to render in- had bought on the strength of the apparent equitable the assertion of his original lien." title, and erected buildings of a permanent held that the comIn Bowen v. Evans, 2 H. L. Cas. 257, a bill character, it was filed to set aside a sale of lands made nearly plainant was barred by laches, but in the "The law fifty years before under a decree, on the opinion of the court it is said: ground of irregularities in the proceedings pronounces the transaction a fraud upon and fraud in the sale, it was held that, in her, but it lacks the element of wickedness the absence of proof of fraud on the part of necessary to constitute moral turpitude. If the purchaser, or that the estate was sold un- there had been a deliberate attempt on his der the value by reason of any corrupt bar- part by knavish practices to beguile or gain, the sale was not impeachable; but in wheedle her out of these lands, we should delivering the opinion Lord Chancellor Cot- have been strongly inclined to afford the tenham observed: "So, when much time has plaintiffs relief at any time during the life elapsed since the transactions complained of, of either of the parties; but as the case there having been parties who were compe- stands at present justice requires only what tent to have complained, the court will not, the law, in the absence of the statutory limupon doubtful or ambiguous evidence, as-itation, would demand,-the repayment of sume a case of fraud, although upon fraud the value of the scrip, with legal interest clearly established no lapse of time will tect the parties to it, or those who claim through them, against the jurisdiction of equity depriving them of the fruits of their plunder."


The case of Hammond v. Hopkins, 143 U. S. 224 [36: 134], a leading case in this court, is not to the contrary. In this case two partners owned real estate in common, some of which was used in the partnership business. One died, making the other by his will a trustee for the testator's children, with power of sale of all the real estate, and directing that the business be continued. After carrying on the business for some time the trustee sold the real estate by auction, and bought portions of it in through a third person, and accounted for half of the net proceeds. The transaction was open and known to all the cestuis que trust, and was objected to by none of them. It was held that there was nothing in this to indicate fraud; that the purchase was not absolutely void, but voidable, and might be confirmed by the parties interested, either directly, or by long acquiescence, or by the absence of an election to avoid the conveyance within a reasonable time after the facts came to their knowledge. There was a delay of nearly twenty years in this case. In delivering the opinion the Chief Justice said: "Each case must necessarily be governed by its own circumstances, since, though the lapse [58] of a few years may be sufficient to defeat the action in one case, a longer period may be held requisite in another, dependent upon


In Norris v. Haggin, 136 U. S. 386 [34: 424], plaintiff filed his bill in 1884, alleging an actual fraud committed against him by his two attorneys in 1859, twenty-five years previously, and that he had only discovered the fraud a short time before commencing his suit. The case was heard on demurrer to the bill, and the court found that "there are many things about the bill which are peculiar and calculated to throw suspicion on the claims." It also found that the statement that the complainant had only come to a knowledge of the alleged fraud within a short time of the filing of the bill was shown by the *statements in the bill it- [59] self to be false, and that he had known of the alleged fraud for over fifteen years, and that a number of other matters alleged in the bill and amended bill were shown by other contradictory statements to be false, and thereby the whole claim was rendered suspicious; that there were ambiguities in the bill, etc. Taking the whole case as stated by the complainant himself, the court thought that the bill had properly been dismissed by the court below. It is evident that the bill was dismissed upon the ground that the fraud was doubtfully or ambiguously alleged, the claim suspicious, and that knowledge of the fraud had existed for a long time.

We do not wish to be understood as holding that the plaintiff, even in a case of actual fraud, may wait an indefinite time, or always so long as the statute of limitations



See same case below, 4 Okla. 321.
The facts are stated in the opinion.
Mr. Calvin A. Calhoun, appellant, pro
No counsel for appellee.

would permit him to bring an action at law | creed to convey to him certain lands situate before asserting his rights; but where the in the Territory of Oklahoma and which the fraud is clearly proved the court will look plaintiff claimed to have acquired title to with much more indulgence upon any disa- under U. S. Rev. Stat. §§ 2304 et seq. Judgbility under which the plaintiff may labor as ment affirmed. excusing his delay. As was said in Townsend v. Vanderwerker, 160 U. S. 171, 186 [40:383, 388]: "The question of laches does not depend, as does the statute of limita-se. tion, upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under all the circumstances of the particular case, plaintiff is chargeable with a want of due diligence in failing to institute proceedings before he


*Mr. Justice White delivered the opin- [60] ion of the court:

The plaintiff sued to recover a described piece of land upon the assumption that the defendant held it in trust for him. The prayer of the petition was that the trust be recognized and the defendant be decreed to make conveyance of the land. A demurrer was interposed, which was sustained by the trial court, and the suit was thereupon dismissed. On appeal to the supreme court of the territory, the action of the trial court was affirmed. The present appeal was then taken, and the issue which arises is this: Did the court below err in deciding that the petition of the plaintiff did not state a cause of action?

The circumstances of this case are so peculiar; the fraud so glaring; the original and persistent intention of McIntire through so many years to make himself the owner of the property so manifest; the utter disregard shown of the rights of the plaintiff, as well as of Jenison, the mortgagee, upon whose ignorance in the one case and whose confidence in the other he imposed so successfully; the false personation of Emma Taylor, and the fact that the decree in favor of the plaintiff can do no possible harm to any innocent person,-demand of us an af- The facts alleged in the petition and shown firmance of the action of the Court of Ap-by the exhibits which were annexed to it are peals. Its decree is accordingly affirmed.




(See S. C. Reporter's ed. 60-65.) Decisions of Land Department, when followed by this court-right of discharged soldier to enter lands in Oklahoma.

as follows: The plaintiff Calhoun, an honorably discharged soldier, who was in all general respects qualified to claim a homestead under the law (U. S. Rev. Stat. §§ 2304 et seq.), seeking to avail himself of his right, entered on April 23, 1889, at the United States land office at *Guthrie, Okla- [61] homa, "lots 6, 7, 8, 9, and 10 of section 3, township 11 north, range 3 west, in the aforesaid land district.' The petition alleged that Calhoun had performed all the subsequent acts required by law to make the entry valid. On May 21, 1889, Theodore W. Echelberger contested the entry on the ground that Calhoun had come into the ter ritory of Oklahoma before the time when by law he had a right to do so, in violation of the statute of the United States and of the proclamation of the President issued in pursuance thereof. (25 Stat. at L.. 980, 1004, chap. 412; Payne v. Robertson, 169 U. S. 323 [42: 764]; Smith v. Townsend, 148 U. S. 490 [37: 533].) On the 27th of May, 1890, James McCornack also filed a contest against both Calhoun and Echelberger, alleging that they were both disqualified because they had during the prohibited period entered the territory. On June 29, 1890, contest was also filed by Thomas J. Bailey, charging the illegality of the claims of Calhoun, Echelberger, and McCornack, averring that he, Bailey, was the first legal settler on the land and Submitted January 20, 1899. Decided Feb- entitled to it. On January 25, 1890, one Linthicum filed a contest against lot No. 10, embraced in the entry made by Calhoun, on

1. This court will determine for itself the correctness of legal propositions upon which the Land Department of the government may have rested its decisions, but it will not, in the absence of fraud, re-examine a question of pure fact, but will consider itself bound by the facts as decided by the Land Department In the due course of regular proceedings had in the lawful administration of the public


2. An honorably discharged soldier was not entitled to go into the territory of Oklahoma before the designated time, and make a valid entry of a homestead therein, notwithstanding the proviso in the act of March 2, 1889, that the rights of honorably discharged Union soldiers and sailors shall not be abridged.

[No. 180.]

ruary 20, 1899.

APPEAL from a judgment of the Supreme the ground that that lot was on a different

Court of the Territory of Oklahoma af firming a judgment of the District Court for the Third Judicial District sitting in the County of Oklahoma, which last-named judgment sustained the demurrer of the defendant, Oscar H. Violet, to the petition of the plaintiff, praying that the defendant be de

side of the Canadian river from the balance of the land embraced in the entry, and as the Canadian river was a meandering stream, the entry could not lawfully cover land situated on both sides thereof; hence lot 10 had been illegally included in the Calhoun entry.

had misconceived the evidence and disregarded its weight, and was in violation of law, because the section of the act of 1889, forbidding the going into the territory before a named date of persons desirous of taking land therein, had no application to honorably discharged soldiers entitled as such to make a homestead entry. The land as to which it was averred the trust existed and a conveyance of which was sought was lot 10, as to which the relinquishment had been filed under the circumstances above mentioned. It was charged that, despite the protest of Calhoun, a final certificate for this lot had been issued to the defendant, with full knowledge on his part of the claim of Calhoun; hence, it was asserted, the trust arose and the obligation to convey resulted.

In February, 1890, the Commissioner of the General Land Office instructed the local land office to suspend, among others, the entry made by Calhoun, because the land covered by it was on both sides of a meandering stream, and hence entry thereof had been improperly allowed. The instruction transmitted to the local officer concluded as follows: "You will notify the claimant of this fact" (that is, of the suspension of his entry), "and allow him thirty days from receipt of notice in which to elect which portion of his claim he will relinquish, so that the land remaining will be confined to one side of such stream. Should any of the parties desire to do so, he may relinquish his entire entry; in which event an application [62]*to make a second entry of a specific tract will receive due consideration. If any of the entrymen fail to refuse to take action within the time specified, his entry will be held for cancelation. Notify the parties in accordance with circular of October 28, 1886 (5 L. D. 204), and in due time transmit the evidence of such notice, with the report of your action, to this office." Conforming to this notice, Calhoun, on the 17th of March, 1890, filed in the local office a formal relinquish-houn, as a discharged soldier, was not enment of "all that portion of land on the right bank of the North Canadian river known and designated as lot No. 10 (ten) in the N. W. quarter of section 3, township 11 N., range 3 west, Guthrie land district, the same having been embraced within ny original entry No. 19, dated April 23, a. D. 1889."

On the 30th of October, 1890, all the contests above referred to were duly heard before the register and receiver of the local office, and it was decided that both the plaintiff and Echelberger were disqualified from taking the land because they had gone into the territory before the time fixed by law, and that McCornack was entitled to enter the land. The claims of Bailey and Linthicum were rejected. From this decision the contests were carried to the Commissioner of the General Land Office, by whom the action of the local officers was affirmed, and thereupon an appeal was prosecuted to the Secretary of the Interior, with a like result. Subsequently, in 1894, on a petition for review by Calhoun and another of the parties, the Secretary of the Interior reiterated the previous ruling, affirming the action of the Commissioner of the General Land Office in rejecting the claims of Calhoun and others on the ground that they had been made in violation of law. Pending the appeals and decisions thereon as above stated, Calhoun filed with the Commissioner of the General Land Office an application complaining of the order which had compelled him to elect to which side of the river he would confine his entry, asserting that the action of the department was illegal, as the stream was not a meandering one, and asking a revocation of the order.

The petition filed in the court below, [63] moreover, contained an *averment that the rulings of the local land officers, of the Commissioner of the General Land Office, and of the Secretary of the Interior, above stated, were null and void, because all these officers

The court below held that it was bound by the action of the Land Department in so far as that department had decided as a matter of fact that Calhoun had made entry of his land by going into the territory contrary to the restrictions imposed by the act of Congress, and that, in so far as the ruling of the Land Department rested upon a matter of law, it had been correctly decided that Cal

titled to go into the territory contrary to law and thereby acquire a priority over other citizens.

The first of these rulings was manifestly correct. It is elementary that, although this court will determine for itself the correctness of legal propositions upon which the Land Department of the government may have rested its decisions, it will not, in the absence of fraud, re-examine a question of pure fact, but will consider itself bound by the facts as decided by the Land Department in the due course of regular proceedings had in the lawful administration of the public lands. United States v. Minor, 114 U. S. 233 [29: 110]; Lee v. Johnson, 116 U. S. 48 [29: 570]; Sanford v. Sanford, 139 U. S. 647 [35: 292].

The fact that the plaintiff had entered the territory prior to the time fixed by the statute and the proclamation of the President having been conclusively determined, it follows inevitably, as a legal result, that [64] an entry of land made under such circumstances was void, and that the ruling by the Land Department so holding was correct. This leaves only open for our consideration the legal question whether Calhoun, because he was an honorably discharged soldier, was entitled to go into the territory before the designated time, and make a valid entry of a homestead therein. The claim that he was authorized to do so is based on a proviso contained in section 12 of the act of March 2, 1889, chap. 412 (25 Stat. at L. 980, 1004), which is as follows:

"And provided further, that the rights of honorably discharged Union soldiers and sailors in the late civil war as defined and described in sections 2304 and 2305 of the Revised Statutes shall not be abridged."

The sections of the Revised Statutes to which this proviso relates simply invest honorably discharged soldiers with the right to enter a homestead.

The proviso in question is immediately succeeded by the following:

"And provided further, that each entry shall be in square form as nearly as practicable, and no person be permitted to enter more than one quarter section thereof; but until said lands are opened for settlement by proclamation of the President, no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands or acquire any right thereto."

Statement by Mr. Chief Justice Fuller: Dunlap was, and has been for many years, "engaged in the manufacture of a product of the arts known and described as 'stiff hats,'" in Brooklyn, New York. Between August 28, 1894, and April 24, 1895, he used 7,060.95 proof gallons of domestic alcohol to dissolve the shellac required to stiffen hats made at his factory. An internal revenue tax of ninety cents per proof gallon had been paid upon 2,604.17 gallons before August 28, 1894, making $2,344.40, and a tax of one It is manifest from the context of the act dollar and ten cents per proof gallon had that the proviso relied upon was intended been paid upon the remaining 4,456.78 galonly to give to honorably discharged soldiers lons after August 28, 1894, making $4,900.81 and sailors an equal right with others or $7,245.21 in all. In October, 1894, Dunto acquire a homestead within the territory lap notified the collector of internal revenue described by the act, and the proviso was of the first district of New York that he was thus intended simply to exclude any impli- using domestic alcohol at his factory, and cation that they were, in consequence of the that under section 61 of the act of August prior provisions of the act, not entitled to 28, 1894, chap. 349 (28 Stat. at L. 509, 587), avail themselves of its benefits. The proviso he claimed a rebate of the internal revenue therefore in no way operated in favor of hon-tax paid on said alcohol, and he requested [66] orably discharged soldiers and sailors to relieve them from the general restriction as to going into the territory, imposed upon all persons by the subsequent provisions of the [65]law. To hold the contrary would compel to the conclusion that the law, while allowing honorably discharged soldiers and sailors to take advantage of its provisions, had at the same time conferred upon them the power to violate its inhibitions. The purpose of Congress in allowing those named in the proviso to reap the benefits of the law was not to confer the power to do the very thing which the act in the most express terms sedulously sought to prevent. Affirmed.




(See 8. C. Reporter's ed. 65-77.) Right to rebate of tax on alcohol.

Under the act of Congress of August 28, 1894; a rebate or repayment of the tax on alcohol used in the fine arts by a manufacturer can be made only when it is used under regulations prescribed by the Secretary of the Treasury, and in the absence of such regulations the right to such rebate or repayment could not vest so as to create a cause of action, by reason of the unregulated use.

[No. 218.]

the collector to take such official action relative to inspection and surveillance as the law and regulations might require. Subse quently he tendered to the collector affidavits and other evidence tending to show that he had used the aforesaid quantity of alcohol in his business, together with stamps showing payment of tax thereon, and he requested the collector to visit the factory and satisfy himself by an examination of the books, or in any other manner, that the alcohol had been used as alleged. He also requested payment of the amount of tax appearing from the stamps to have been paid. The collector declined to entertain the application, and Dunlap filed a petition in the court of claims to recover the full amount of the tax which had been paid, as shown by the stamps, which, on December 6, 1897, was dismissed, whereupon he took this appeal.

The findings of fact set forth, among other things, that "in the early part of September, 1894, the Secretary of the Treasury requested the Commissioner of Internal Revenue to have regulations drafted for the use of alcohol in the arts, etc., and for the tax;" and that "subsequently there was corpresentation of claims for rebate of the respondence between these officers as follows:"

From the Commissioner to the Secretary, October 3, 1894:

"I have the honor to report that the preparation of regulations governing the use of alcohol in the arts and manufactures, with rebate of the internal revenue tax as provided by section 61 of the revenue act of August 28, 1894, has been and is now receiv

Argued November 29, 30, 1898. Decided ing very serious consideration from this of


February 20, 1899.

PPEAL from a judgment of the Court of Claims dismissing the petition of the appellant, which petition was filed to recover a rebate under the act of Congress of August 28, 1894, on internal revenue taxes paid by the claimant upon domestic alcohol which he used in his business. Judgment affirmed.

See same case below, 33 Ct. Cl. 135.

fice, and many communications have been received from, and personal interviews had with, manufacturers who use alcohol in their establishments; and it is found, in every case without exception, all agree that no regulation can be enforced without official supervision, and that without such supervi sion the interests of manufacturers and of the government alike will suffer through the perpetration of frauds.

"As it is found to be impossible to prepare

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