Opinion
No. 997.
September 4, 1934.
Appeal from the District Court of the United States for the District of Colorado; John Foster Symes, Judge.
On petition for rehearing.
Petition denied.
For former opinion, see 71 F.2d 764.
Thomas J. Morrissey, U.S. Atty., and Ivor O. Wingren, Asst. U.S. Atty., both of Denver, Colo.
James T. Locke, of Canon City, Colo., for appellee.
Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.
The petition for rehearing indicates that our former opinion is construed as holding that the government was charged with constructive notice of the pertinent public record of the county in which the land constituting the homestead entry is located, and for that reason could not rely upon the statement made in the affidavit of the entryman that he did not then own more than 160 acres of land.
We think the opinion, fairly construed, did not make disposition of the case upon that theory. We merely held that since the bill affirmatively shows upon its face that the deed to the one-half interest in the 720.90 acres was of record in the county at the time the affidavit was submitted, at the time the patent issued, and at all subsequent times, thereby reflecting open, avowed ownership, the government cannot recover in this suit to cancel the patent, instituted more than six years after it issued, upon the terse, unamplified allegation that the entryman concealed the fraud and that the action was filed within six years after its discovery. The mere allegation of concealment, without more, is not aided by the declared ownership reflected by the public record. The only fact alleged is not one of concealment, but the opposite.
If it can be said that there is substantial basis for doubt respecting the extent to which our former opinion went, it is thus limited, and the petition for rehearing is denied.