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About Medford mail tribune. (Medford, Or.) 1909-1989 | View Entire Issue (Oct. 28, 1914)
if" , ;:r lf:, . - MEDFOttD MATT, T1UBUNB, TODKOKD, OHMON. WKDNRSIIAY. OCTOHIW. 28. 11)1 PAGE TWO f-r MSfflM , -. 1 j Djpcislon 'of FehrAl 'Court of Ap je$ls Sets Aside Patents to Jcrtlan and La Raut Claims on Grounds of Illegal Practice History of Case Rehearsed In Court's Opinion. Tho tollowlnn Is tlio declMon, In full, of Jtl.19 United States circuit court or nppciils, consisting of Justices Gll bprt. Itosa and Morrow, In tho case oj tho United Stntcp Oootli-Kolly Co.! t nl, after hcarluR all of tho evidence submitted afterwards by K. A. Booth, cnudldato for tho United 8tntcs senate. In his debato with Gov ernor West at Portland last week. The court's decision Is printed In full, so thnt the ntlbllc may understand what kind of n junn Is seeking elec tion to tho United States senate: United HiMcs v. Jlootli-Kclly l.ttiulwr Co. ct 1 Evldcnco considered, In n suit by tho United States, for tho cancella tion of patents to public lands en tered under tho stone and timber net on tho ground of fraud, in that tho entries wero mado for the bene fit of defendant lumber company. which paid the government price and all fees and expanses and gayp each onlrjinaji a bonus qn receiving deed to bis land, and held sufficient to sustain tho allegations of tho bill and to entitle- complainant to a can cellation of all of pie patents. Appeal and Cross-appeal from the District Court of the United States for tho District of Oregon; Robert S. Dean, Judge. Suit in equity by tho United States against tho Booth-Kelly Lumber Company, Stephen A. La Raut, Alice La Raut, Ethel M. La Raut. and Lucy La Raut. From the decree, both the United States and defendant Lumber Company appeal. Reversed on ap peal .of the United States, and af firmed on defendant's appeal. On May 24, J 910, tho United States brought a suit Jn tho court be low to cancel flyo patents of land which bad boen issued under the Timber and Stone Art, on the ground that tho Initial applications of tho patentees had been fraudontly xnadP by them for tho uso and bonflt of tho Booth-Kelly Lumber Company, and with tho understanding at the time when they were made that the entrymen should wk convey tho land so entered by him to said com pany. Tho bill alleged that tho com pany paid and advance all of tho fee;, costs and expenses ant) purchase prlco of said land, and paid to each entryman MOO, anil received from each a deed. The entrymen were Edward Jordan, Stephen A. La Raut, Allco La Raut, Ethel M. La Raut (now Ethel M. Lewis) and Lucy La Raut, and they were made co-defendants' with tho Booth-Kolly Lum ber .company. A decrco was taken pro confesso ngalust Jordan. On September 21, 1910, all the other defendants answered tho bill, deny ing that tho Lumbar company fur nished any of tho purchase money, fees, costs or expenses of acquiring tho land, and denying the allegations 'of fraud on tho Timber and Stone Act. The answer alleged that on or about July 22, 1902, the Lumber Company purchased tho land entered by Jordan for the sum of $ 550, which was actually advanced nnl paid to and for his uso and benefit, and re ceived a warranty deed from hi in thorofor, relying upon the final re ceipt for said land, and believing that nil tho proceedings anterior thereto wore buna fide, etc.; that on May 7, 1907,' Stephen, Alcp, Ethel and Lucy La taut, by vlrUq of the patents ssued tq them, we,re seized nnd nosjegsQd pt fill legal and enplt-ablo- ownership of tho land granted by, patpniij, nud that on said day the Lumber; Company purchased the laud described in said patonts, and each of the patcntoes received thorofor the sum of fCUO, which sum was actual ly advanced and ,pu.td to and for each of thorn, rulylpg upon tho patents, etc. And there lc In the onsyer this ulk'fc'atlou by the Lumber Cempany: "Thatjhjs dofendant is informed and believes, and therefore alleges that after tho sold eutrfqs mentioned In fcald bll wore made by several en try in en, charge wero jiiailp nod filed wjtli t!v coiuplaliiant'u officials In tltt Jyturjor jWartinnit, whpim dpi) It was. p Investigate and determine fy MWP J'MI'I titrk vvre ,'raudufnt u rjjuructur Md " wfttltf fr UiH lt'jitft of Hits dufVwJ. mhI, ami Hint mIi) clurKei rv full lHtPlltl by lUu Interior Pepuit HMt fr f iw f wmhw (Vf Irjlh w WI ( Mi Uwitv, )Wt Hi AitmM HhllflT I'MlfWU 4M4tN h lM ui'iw ld cnlvrlv, tf MJwr lb MW liuiiltl bv eku celled, mid thnt such proceedings wore hnd in said matters that said sov.cral .outcries w.cro Xully investi gated, by complainants .officials cbargqd with that duty, and tetl ninny and affidavits wore tnken upon said Investigation, and the complain' ont and said entrymen were duly rep resented at said hearing and InveMl gallon, nnd that upon n full Invest! gallon and hearing upon said charges and with full knowledge of nil the facts, it was found and determined by tho said officials thnt said entries wero not fraudulent, and that tlic Irregularities in said entries, If any, wero not of sufficient gravity to require- or Justify the cancellation of said entries, and ordored that pat ents issue upon said entries for said laud, and, that patents were there upon Issued therefor, its alleged In f.ald bill of complaint." After a re plication had been filed, nnd nt the beginning of the taklug or testimony before an examiner, on December 19, 1910. tho Lumber Company, Lucy 1-a Raut, and Ethel M. La Rnut ob tained permission to n in end their an swer, "so as to admit that the de fendant the Booth-Kelly Lumber Company, Is the holder of the legal tltlo to the lands entered by nnd pat ented to Ethel M. La Raut and Lucy La Raut, but denying that it is the equitable owner of said land, and al leging affirmatively that said Ethel M. La Raut. now Ethel M. Lewis and Lucy La Raut, ever since suld pat ents wero issued to them, have been and now are tho equitable owners of ald land, and that the deeds made by them to tho Booth-Kelly Lumber Company were Intended to be and were in fact mortgages to secure the payment of certain advances made and to bo made to them by said company, to enable them to enter nnd pay for said land and for other purposes.'' On the issues to made, and tho testimony, the court below entered a decree cancelling the pat ent which had been Issued to Jordan and dismissing the bill as to the other entries. From that decree both the complainant and the Lum ber Company have appealed. A. C. Woodcock, of Eugene, Ore., and Albert H. Tanner, of Portland, Ore., for appellant Booth-Kelly Lum ber Co. John McCourt, U. S. Attorney, of Portland, Ore. , Before Gilbert. Ross, and Morrow, Circuit Judges, GILBERT, Circuit Judge (after stating the facts as above.) Tho evidence shows that some months prior to the .date of tho entries, and some time during the years 1901 and 1902, the Lumber Company had tho land in controversy cruised; that the company was acquiring lands in the vicinity of these lands during tlioso years; that at that time and until 1907. R. A. Booth was the manager of the company; that be tween January. 1902, and January, (903, J, JI. Booth was secretary of the company and was the receiver of no United Spates land office at. Roso burg, Pre, that John K. Kelly was tho ico-presldent of the company, and that he, under the direction of R. A. Booth, attended to the pur chase of lands for the company; that George Kelly, a director of tho cor poration had charge of Its sawmills and wag manager to succeed R. A. Booth In 1907; that at tho timo of tho entries In controversy the com pany had sawmills at Saginaw, Co burg, Wcndllng and Springfield, Ore.; and thnt they owned and acquired largo tracts of land In the vicinity of those mills; that R. A. Booth Is tho brother-in-law of Stephen, Ethel, and Lucy La Raut, and that Alice Ln Raut Is Stephen La Raut's wife; that at the time when the entries were made Stephen and Ethel La Raut and Edward Jordan were in the employment of the Lumber Com pany, and they "were very poor at that time"; that . H, Brumbaugh was a cruiser in the employment of the Lumber Company, and thut at the re quest of John K. Kelly he showed the entrymen and cntrywomen their re spective claims. The records of the land office show that all entries were filed in February, 1902, that the final proofs were mado on May 7, ant May 8, 1902, that the patents issued on August 3, 1904, and that upon the request of John F. Kelly the patents wero delivered by the officers of the lloseburg land office to Frank E. All. As to the main issue in the cuse, which is whether the lands In con troversy were entered pursuant to an understanding or agreement between thu applicants and (he Lumber Pqm uany whereby the fatter was to ac quire the same, M'u oral testimony Is conflicting, jqrdnp testified., nnd (lie pourt in-low found, that he had such an uiiderntaudiug mid agree ment and that io entered the land Dt tho IiiKtumo of one of the officers of the Lumber Company, upon the prouilto of tho payment of 100 lo bl in for ils service In ko doing. Mrs. Applimimiu. u daughter of Alice La Ituiil, tvbllfM tlmi lir iiiollmr toM bur Ihui ! hud lul.vii up rUlm for It A liouili. bud w&H o l publ 1 1 00 fur her fluliu, tin Him h hum publ lliut um, uinl Hint Mr Jlooili ws in puy lr rpHir nml did w. Mud unifl")) m tint! Iir tvfullii Hf'plii'ii I.m Jtuui loyli np Ills (Ulm for tho same reason that her mother did, but she was unable to say wheth er It wns he or her mother .who told her so, ami thjtt her mother told her that R. A. Booth had asked her. her stepfather, and Ethel to take .up clntms, nnd that her mother mild hor stepfather had received $1000 (or do ing so. She testified further, that her mother got $T0 mure eight, or nlito months befojy lJo tlnvo when tho witness jjave her testimony. There was no contradiction of this testimony by either St ephen l.a, Rant or his wife. Thoy wcvro ucd. cnlled as witnesses, nor w.cro their depositions taken. Mrs. Applestone was, ap parently, n disinterested wituess. and no reason la sugges,lo.d jvhy Jie.r testi mony should not be given full cred ence. Ethel nnd Lucy La Raut testl fled In the matn In harmony with the testimony of R. A. Booth to thu effect that the tour entries or the La Rants wero made under an agree ment with It. A. Booth, who was their relative, and thu then manager of the Lumber Contpnuy, by which tho Lumber Company was to pay the gov ernment price for the land and all the expenses incident to tho entries, and keep on account thereof, the repay ment of which to the company Mn Booth guaranteed, and In pursuance of which and as security therefor he took to himself the deeds to the lands which they entered. t And there was testimony that In 191Q, when Stephen La Raut and his wlfo desired t,o re move to Alberta, Canada, tliey sold their claims to !the defendant com pany for $50 each in addition to the $100 they each had received, a price which was satisfactory to them, and that the other two claims istlll be long to Ethel and Lucy Ln Raut; the company holding the title as secur ity. The court below found that tho Lumber Company acquired by pur chase the claim of Stephen Ia Raut and wife, and that it holds the tltlo to tho other two claims only as sc curlty for advances mado to Ethel and Lucy La Raut. From the conflicting parol testi mony which the record present, we turn to the evidence shown by con temporaneous entries in tho bopk and records of the Lumber Company, and to facts and circumstances es tablished thereby which do pot de pend upon human memory for sup port, and which cannot bo contra dicted. The following facta aro un disputed: The La Rauts, together with Jordan, who was in tho employ ment of the Lumber Company made trclr applications for timber claims at the same time, and the company paid their traveling expenses to and fro Roseburg and all Incidental ex-; penses. The company jiald for all the publication of notices, and charged tho expense thereof tp .Its stumpage account, and made no charge therefor nt any time in its bqoks against the individual entry men. Tho company paid tho pur chase, price of the lands apd all of the fees, traveling expenses, and other expenses Incidental to final proof. Tho final proofs were mado in May. 1902, and In July following, each of the entrymen executed and delivered a deed of the land. Jor an'8 deed, and probably all of the deeds, were executed to the company. The deeds from the La Rauts having been subsequently destroyed, the testimony leaves It uncertain wheth er thoy were executed to the company or to R. A. Booth. At tho timo when these deeds wero executed, ach en tryman received tho sum of $100. The deed from Jordan was not re corded until September 0, 1907 Tho La Routs deeds were never rccordod, but In tho latter part of 1004 or curly in 1905, at about the time of the In vestigation by the government of land frauds In Oregon, those deeds were returned to the makers and de stroyed, Ethel and Lucy La Raut mado other deeds In 1907, at which time they were each paid $25, On February 3. 1910, Stephen Lu Raut and his wife made a deed of their lands to tho company, and were each puld $50. The entrymen of the claims in controversy never saw the lands, excepting at the time when they viewed them prior to making their entries, and It is admitted that they never made any effort to dispose of them, never inquired about them, or the value of them, or the amount of timber thereon, and made no in quiry as to (he .xpenes of thu .en tries or tho payment qf tuxes Here on, or assumed any control or own ership of jbo land, Th Jumber.com pany on Its books charged Itself with all expenses In relation to these landu from and after the time when It caused the same to ho cruised, short ly before the entries wero made. y.'hen the final proofs had been taken, and the lands hud been paid for, lndviduul accounts were, opened under the iibiiiu of eurh of thu entry men, In which weie (.barged thu pay ment of IIih piirfhake price of $400 for (he laud, and a payment of $100 to ouch iiilr;mun, upd tsrh ncioimi pus haluuifd li u credit of $500 to klllllliHg(, Mild II OIM' Of tllHMI WNN vii-r ttflurwril n'opi'iiml. Kurd m count bi'Klns wllh Dm milry of Ilin PMmnl of (lin imrclfUkii mouyy of fJOO on ly N, l&UX. The snounU Hlli lb" I.m llunU nil ml on July 41 ifojf, hi hi ciiuitfo lo Niump age. $500. ' Tho account under tho muiio of Ethel Lu Rnut may servo n sample of nit. Ethel La Hunt 190'J May S,.J. 108 Chock $.100 July :U, J. Chock'!.' $100 July iU, J. 191) Check $500 $500 $500 Hut the expenses of the, entryman lu going to ttiK,churg, lodging there and returning, the recording tecs, nnd thu publication notices wero not entered .in the.u Individual accounts. but were entered lu the books of tho company under the heading "Brum baugh land claims," mid were can led Into .the tmujinx.o .account under the Item "Cruising.'' The lauds so deed ed by the cntryincn In 1902 were Immediately carried into the genera! laud account of .the company. iTheoev after the compauy paid the taxes thereon, together with Its taxcxuOi other lauds. Jn, a sum total. No ,ox plauatlun U .made of tho fact thnt thu deeds so taken were nut record ed. No satisfactory reason Ih glvinl why the deeds wero destroyed No explanation' Is given of the fact that for a oar pud n half after thu de struction of the deeds neither Booth nor thu Lumber Company had any cpnve.xance from tjip I.a Rauts. The theory lljnt.iL A Booth nil yanccd .the costs., and expenses, and purchase prlco for the entries in or der 19 .assist his relatives who worq In poor circumstances, and that h) thereafter advanced monoy to them for thu same reason and took the deeds as security illy coiuporU with certain significant facts that appear In tho record. .Ope of these. Is .thu contemporaneous payment to Jordan and the four membcra of tbe l.a Raut family of the Identical sum of 5 1 Oil rach at tho time whou their deeds were taken. Another Is. that neith er Ethel 1 4i Itnut nor Lucy La Rant explained why she received tho $00. Lucy testified that she did not need It, or uso It. and .that when fho re ceived It she loaned it 19 her father, who paid her Interest on It. Another Is that not another payment anjiears by the books of the company to have been made to any of the La Rauts until the timo when the company re ceived new deeds from each. When the second deeds were obtained from Ethel and Lucy ln 1907, they wore each paid $25. When tho deeds were obtained from Stephen La Raut and his wife In 1910, they were each paid $50. None of thexo payments was charged against the La Rants personally, nor wero the old account under their namesK which bad been balanced and closed, reopened; but theso payments were each charged In tho et.utnpage account pf thu lum ber company. In short, there is nothing in the books of tho company to show that any of tho La Hauu owed the Lumber Company or It. A. Booth at any time after Uielr ac counts wero cloned, or that the com pany held any of the conveyances as security, or that R, A. Booth guar anteed the rppayment to the Lumber Company of the monoys which It bad so advanced. Anothor Important fact Is that at tho timo when the sec ond deeds were obtained from Stephen La Raut and his wlfo, ac cording to tho decided weight qf t)io testimony,. thcJr plaints were worth each, at the Jowcst estimate. $4000, and probably $5000. A most signi ficant fact also, Is tho change which was made In the answer of thu de fendants when the government began to take Its testimony before tho ex aminer. The original answer had then been on file three months. Tho original answer denied: "That the entire or any expense attending the making of suld entries or purchaso, Including the payment of bald purchase money or the said fees of register or receiver, or all other expeiihcs or disbursements, or any expenses or disbursements, were paid or born by thu sold defendant corporation." It Is not clalmd, nor can It bo, that the answer was prepared by counbel or sworn to In Iguoranco of the facts. The complulnt had drawn tho attention of the defendants sharply to the charges which were mado as to the alleged fraud In ac quiring the landx In controversy. The answer was complete In every detail, and one of the allegations was that tho charges made In the bill had been the subject of Investigation by offi cials of the Interior Department, who bad full InvevtlKStcd them for the purpose of ascertaining tho truth or falsity of said charges. Another al legation was that the Lumber Com pany had purchased thu lands relying upon the patents, and had puld Jor dan $550, and each of the other patentees $000, therefor. Tim un swer wan sworn to by A. 0. Dixon, the inunugtjr of the Lumber Com pany. Ho toxtlfloil I hut It. A. Booth hud (old him thv fat Im In ivgard to thtfkti claims, siiil hid liiformvd lilm Hist )ih lisil csiufd Him lompuiiy's money In be udtuuind lo pay the ex puiiKes uml puwiisiit pin lliKroof, umj Ihui im had giiurnhlPi") ll'w i pamwil of Hit moiimy o III 11 ijiid puny. DU011 IfHiflnd lliut Im whs fully tiitfki of I tit limit, uml llisl hu hud kin I ml 1 bt fu (its in llin silor l)Vt lU pH'I'klPlI H NpSH'Pt tlH admitted that thu uimvior wim lend to lilm; but ho testified (hut with out paying nttontloii tu ho dentin, or discussing tho -vurtoUH points ombud led lu It, luvhiul sinned ll, mipiuutlmt It wuhii more mutter of fmm. lint he could iuM ,oplln. why tho aiiHwor was prepared lu tho wny tu which It was, nor vmih any wltncxx culled to oxpliiln It, These facts nnd elreuniKtuiiees, while perhaps thoy do mil amount tu a dcmotiHtrutlott of the truth of tho ullugiitlous of thu bill, result In 11 very decided preponderance of tlio evidence lu favor of thai ennulnnlon nnd thoy mo sufficient lu uur Judg ment to DVori'oim all the prosump tlous thnt attend tho Ishuiuico of tho PjHimts. tvud uro nuf.Uxlent to moot tho requirements of tho rule that lu a suit to sot aside 11 patent tho testi mony 011 ulilcli It Is done must bo clear, uueqiitvm-nl, ami convincing and must bo more than 11 bare pre ponderance of the evidence, which leaves the Issue In doubt. Tho find ings In the court below 1110 mado upon evidence which had been taken before uu examiner, and not lu open Court, and thoy are not nlteudod with presumptlous in fuvnr of find ings' wbleji are made upon conflict Jng toHtlmony. where tho trial Judge list) 'the opportunity to observe tho denuianorrtof' thu wliuesM'; As to thb laud patented to Jordun, tho de cree t affirmed. As to tho other lauds lu controversy, It Is rovoroed, an'd tlio cause lemaiutcd, with Its Htructlons to enter n decieo for tho United Stntes lu accordance with tho I3vor of tho bill. l IMI l"l IKlA RSaarf WT'ftA r . SHINE IN EVfeRY DROP" ftlackMffctitOYql'flrwtr ititf .. It iirww ti t I ilrrcxitjra I uli r I ut Uropi I ft i ' ia, t I Mtri ttojuit ri i. Yl I jet jour rttji wurut. Black Silk Stove Polish lanolMilf nwt n"rwfnlol.but (If tM18 puUh-U4VMyvut -' uvfk khU mootj , IHb'i loftfvi klirn roti want ! tkllhvtuf ! v.k riTllUikfcllh. 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