United States v. Perry

45 F. 759, 1891 U.S. App. LEXIS 1831

• Court: U.S. Circuit Court for the District of Washington
• Decided: April 7, 1891
• Status: Published

Opinion

Hanford, J.

This is a suit to cancel a patent issued under the provisions of section 2291, Rev. St. U. S., being part of the act of congress known as the “homestead law.” The object of this law was to grant land to actual settlers for use as homesteads, and to encourage the settlement, cultivation, and improvement of the public domain. It is necessary, to obtain a valid title under this law, that there shall have been an actual settlement on the land and a continuous residence and cultivation thereof for at least five years. The proofs taken in this ease during the proceedings in court clearly show that there was no actual residence by the person who made the original entry, nor by her heirs after her death, upon the land prior to the issuance of the patent; and the proofs taken in the laud-office on which the entry was allowed do not show that there was ever continuous residence for the period of five years. They only ,go to the extent of showing that the person who made the original application to enter it as a homestead lived on it for a period of three or four months before she was taken ill, and from that time there was no residence upon the land shown by the testimony. The law not having been complied with, no right to a patent existed at the time the proofs were taken or at the time the patent was issued.

• The defendants in the present suit have not conveyed the title. They are the original patentees of the government, and have no valid defense against this suit. Therefore a decree will he entered in accordance with the prayer of the plaintiff’s bill.