United States v. Newton

292 F. 489, 1923 U.S. Dist. LEXIS 1320

• Court: District Court, W.D. Washington
• Decided: May 19, 1923
• Docket: No. 156
• Status: Published

Opinion

NETERER, District Judge

(after stating the facts as above). Section 8 of Act March 3, 1891, provides:

“That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, -and suits to vacate and annul patents hereafter issued shall only be brought within 6 years after the date of the issuance of such patents.”

The title vested and the defendant was entitled to patent two years after the issuance of his final receipt. Payne v. U. S., 255 U. S. 438, 41 Sup. Ct. 368, 65 L. Ed. 720. The mere naked title remained in the government. If the issuance of the evidence of legal title, the patent, created the cause of action, then this action is premature, and no cause of action is stated in the original bill of complaint. If the title vested, and the patent should have force as of the date when it should have been issued, two years after the -expiration of the acceptance of proof, then the action is barred by the act, supra. U. S. v. Puget Sound Traction L. & P. Co. (D. C.) 215 Fed. 436; United States v. Bellingham Bay Improvement Co. (C. C. A.) 281 Fed. 522.

In either event, the motion to dismiss must be sustained.