United States v. Garaventa Land & Livestock Co.

HEALY, Circuit Judge

(dissenting).

The special act passed for the relief of this small group of settlers is evidence of the Congressional belief that there were substantial equities in their situation.

Pursuant to the Act the Secretary, in 1925, prescribed the terms of sale and accepted appellees’ application to purchase the land they occupied, together with their down payment of $1,853 on the total price of $7,395. Afterwards there were a number of extensions, and the purchase price was reduced to $4,00’5. In the period of 11 years following the original purchase numerous defaults occurred of which no advantage was taken. The land became subject to a mortgage, and appellees had tried unsuccessfully to raise the balance owing. Subsequent to the Secretary’s notice of forfeiture in 1936, it appears that appellees were able to secure from their mortgagee the sum necessary to complete the payment, and they thereupon made a tender of the balance with the accrued interest. This tender has been kept good. In their answer to the complaint of the Government, appellees alleged the making of the tender and its refusal and stated their readiness and ability to pay the balance in full.

On these facts it is conceded that as between an ordinary vendor and vendee a forfeiture would not be decreed in equity. Mosso v. Lee, 53 Nev. 176, 295 P. 776; Pomeroy’s Equity Jurisprudence, 5th Ed., Vol. 2, § 445, p. 301 et seq. The naked circumstance that the United States is the vendor is not an adequate reason for proceeding otherwise.

Equitable principles will not, of course, be applied to frustrate the purpose of a law of the United States or to circumvent public policy. Pan-American Petroleum Company v. United States, 273 U.S. 456, 506, 47 S.Ct. 416, 71 L.Ed. 734; Causey v. United States, 240 U.S. 399, 402, 36 S.Ct. 365, 60 L.Ed. 711; Heckman v. United States, 224 U.S. 413, 446, 32 S.Ct. 424, 56 L.Ed. 820; United States v. Trinidad Coal and Coking Company, 137 U.S. 160, 170, 11 S.Ct. 57, 34 L.Ed. 640. But it is well settled that general principles of equity will ordinarily govern in suits by the United States to secure the cancellation of a conveyance or the rescission of a contract. Pan-American Petroleum Company v. United States, supra, 273 U.S. page 506, 47 S.Ct. 416, 71 L.Ed. 734; United States v. Detroit Timber and Lumber Company, 200 U.S. 321, 339, 26 S.Ct. 282, 50 L.Ed. 499; United States v. Stinson, 197 U.S. 200, 204, 25 S.Ct. 426, 49 L.Ed. 724.

I am not able to see how the denial of the -forfeiture in the circumstances here would tend to frustrate the policy of the law. The very purpose of the special act was to make it possible for appellees and others in like situation to acquire title to the lands which they and their predecessors had improved and had so long occupied. Acceptance of the tendered balance with accrued interest in full will make the vendor whole; and it is not claimed that the Government would suffer prejudice in such event because of the default on the basis of which the forfeiture was declared.

The case should be returned to the trial court, with directions to enter judgment for the Government unless the balance of the principal with accrued interest be paid within thirty days. In the event of such payment the dismissal should stand.