Estes v. Timmons

delivered the opinion of the court.

Bill in equity to declare appellee trustee of appellant of the south half of the southeast quarter of section 18, T. 10 N., R. 4 E., in the county of Pottawatomie, Oklahoma.- Appellee holds patent of the United States. The charge is that he obtained the patent by imposition and fraud practiced upon the Land Department. The trial court sustained a demurrer to, the bill and entered a judgment dismissing it. The judgment was affirmed by the Supreme Court of the Territory. 12 Oklahoma, 537.

The essential averments of the bill are that the land is a part of Sac and Fox reservation in the Territory of Oklahoma, which was thrown open to settlement and homestead entry under the homestead laws of the United States, September 22, 1891, under the proclamation of the President of the United States, issued September 18,1891. 27Stat. 989. The appellant was qualified to make settlement and entry of said land, and immediately after 12 o’clock noon of September 22, and before any other qualified person, settled upon the land. Immediately thereafter he commenced to erect a dwelling house and established his residence thereon, and cultivated and improved the same in compliance with the homestead laws. On the twenty-fifth of September he made a homestead entry thereon at the land office at Oklahoma City. Appellee filed an affidavit contesting the entry, in which he falsely and fraudulently alleged that he made settlement on the land immediately after 12 o’clock noon of September 22, 1891, and prior to appellant. The contest, came on for hearing on the fifth of July, 1892, and after hearing the register and receiver of the local land office held that appellee was the prior settler, and appellant’s entry was canceled and appellee was allowed to enter the land May 21, 1894. On the twenty-sixth of September, 1894, appellant filed an affidavit of contest against appellee and his entry,

An amendment to the bill, filed by permission of the trial court, alleges that after testimony was taken in the contest, and before any decision had been rendered by the register and receiver, appellant filed a motion to reopen the hearing in said contest, and that he be allowed to introduce further testimony. The motion was overruled, and a motion was then made for a new trial. Both motions were supported 'by affidavits, and it is alleged that the register and receiver were influenced to overrule the motions and were deceived by the false and fraudulent testimony of appellee and his witnessés, and that

One- of the affidavits attached to the motions was that of John Eaton, a witness in the contest proceedings for appellee, who testified to the settlement of the latter upon the land on the twenty-second day of September, 1891, after the opening of the reservation. Eaton states in his affidavit that he made his deposition: by inducement of appellee and while he, Eaton, was intoxicated, and coming to reflect upon the injury he had done, he voluntarily reveals his perjury. He also-states that he Was not in Oklahoma on the twenty-second of September, but was in Kentucky, arriving there about the fifteenth or sixteenth of September. The affidavits of his brother and nephew corroborate his statement. There is an affidavit of one of the attorneys for appellant that he had been informed before the hearing of the contest by appellant that one George Stratton knew and had 'sworn in an affidavit, supporting appellant’s affidavit of contest, that he was with appellee on the land in controversy on the twenty-second day of September, 1891, and was told by appellee that he had been on the reservation before it whs opened. Stratton was written to, the affidavit states, to appear at the hearing, but did not appear. The affiant tried to see Stratton, • but was prevented by inclement weather, but read his affidavit to him through the telephone, between the town of Wewoka and his residence. He replied that the affidavit was true. He, however, refused to come to town on account of the weather, and the notary refused to go to Stratton’s for the same reason. It was stated that Stratton could not be communicated with earlier. No date is given of the communication with Stratton. The affi

• The contention of the appellant is that the Land Department was imposed upon and that this imposition constitutes a" ground of review of its decision by the courts. Garland v. Wynn, 20 How. 6 ; Barnard v. Ashley, 18 How. 43 ; Lytle v. Arkansas, 22 How. 193 ; Lindsey v. Hawes, 2 Black, 554 ; Carr v. Fife, 156 U. S. 494 ; De Cambra v. Rogers, 189 U. S. 119 , are relied on to support the contention.

Appellant, distinguishing between fraud and imposition practiced by a party upon the Land Department, makes the latter a ground of jurisdiction in the courts. His base demands this, as no fraud was practiced upon him to prevent him from fully presenting his case. He admits th$t a finding of facts upon contradictory testimony is conclusive, not only in the Land Department, but upon the courts. It is, however, in effect, contended that if perjury can or shall be imputed to the witnesses the character of the decision changes and becomes reviewable, and this not in an ex parie proceeding, but in a contested proceeding, where everything was open and took place upon notice. No case justifies this extreme view. It is certainly not called for by the facts of the case at bar. The land was thrown open to entry on the twenty-second day of September, 189Í. Appellant made an entry and appellee contested it. The contest came on for hearing July, 1892, and decision rendered in 1894. Appellee then made entry and appellant instituted a contest. After' some preliminary steps, and by consent of the parties, the case was set for hearing June 10, 1898. There was a continuance until September 12, and another until the 29th, both at the instance of appellant. The case was closed October 28. Motion to reopen the case was made January 27,1899. Five witnesses besides Eaton and appellee testified to the latter’s qualification to enter the land. At the hearing, October 12, 1898, the divorced wife of Eaton testified on behalf of appellant that she knew of the opening of the Sac and Fox reservation for settlement, anti at that time

Decree affirmed.