Appeal from the Circuit Court of the United States for the District of Oregon.

Suits in equity by the United States against the Dinn & Lane Timber Company, Charles A. Smith, Frederick A. Kribs, Charles J. Swen-son, O. Judd Mealey, Richard F. Malone, William J. Lawrence, Alexander Gould!, John J. Gilliland, Louis Maynard, Joseph O. Mickalson, James W. Rozell, John Thomas Parker, Samuel D. Pickens, Sidney II. Scanland, Joseph H. Steingrandt, Cornelius N. Tuthill, Richard D. Watkins, Charles Wiley, and William W. Billings. From the decree in the first suit, both parties appeal; and from the decree in the second, defendants appeal.

These suits were brought by the government to obtain decrees annulling patents theretofore issued for certain lands entered under the act of Congress known as the Timber and Stone Act. Act June 3, 1878, e. 151, 20 Stat. 89 (ü. S. Comp. St. 1901, p. 1545).

Case numbered 1,972 involved 17 patents, each covering a quarter section of land situated in Linn county, Or. Eight of those patents were issued July 9, 1902, and nine of them August 12, 1902.

Case numbered 1,973 involved 28 patents, each covering a quarter section of land in the same county and state, all of which patents were issued August 12, 1902.

The suits were commenced in the court below on May 25, 1908.

For the lands covered by the patents involved in ease 1,973, the filings were made in January.and February, 1900, and final proofs were,made in April and May of the same year; all of the land covered thereby being at the time of, or within a few days after, the making of final proof conveyed by the applicants to one Willd in trust for the defendant C. A. Smith. Willd thereafter, and on November 2, 1900, conveyed the same land to one Greacen, who on February 11, 1901, conveyed it to one Rogers, who on December 21, 1904. conveyed it to one Werner — all in trust for the defendant Smith, and all of which deeds were at the time of their execution placed of record, the legal title to the land standing in the name of Werner from the time of the conveyance of it to him until subsequently conveyed by him to the defendant Linn & Lane Timber Company, as hereinafter stated.

The entries involved in case 1,972 were made in May, June, and July, 1900, and final proof was made in August and October of that year, about which time the land covered by them was conveyed by the several applicants to the defendant Kribs in trust for the defendant Smith — an undivided three-fourths of which Kribs, on the 24th of October, 1904, conveyed to Smith, and on December 28th of the same year conveyed the other undivided one-fourth to one Swenson in trust for Smith — all of which deeds were at the time of their execution filed for record. Subsequently those lands were also conveyed to the Linn & Lane Timber Company as hereinafter stated.

The defendant Smith, who was a manufacturer of lumber at Minneapolis, Minn., had previously acquired about 52,000 acres of other timber lands in Linn, Lane, and Douglas counties of the state of Oregon. In May, 1906, he caused to be organized under the laws of the state of Minnesota the defendant corporation called Linn & Lane Timber Company, with a capital stock of $100,000, divided into 1,000 shares of the par value of $100 each, for the purpose of taking and holding the title to the lands involved in these suits as well as the 52,000 acres theretofore acquired by him. Nine hundred and ninety-eight shares of the stock of the corporation were subscribed by Smith, and one share each by his wife and his attorney. The corporation was organized by the election of Smith as president; Johanna Smith, his wife, as vice president; Vernon Smith, his son, as secretary; and Nan A. Smith, his daughter, as treasurer. Thereafter, and on June 4, 1906, Smith tendered to the directors of the corporation, consisting of himself, his son, and his wife, a deed executed by himself and wife, covering all of his lands in the counties mentioned in payment for the stock of the corporation; and on May 28 and August :15. 1007. respectively, Swenson and Werner, at Smith’s request, conveyed the interests held by them to the same corporation, all of which deeds to the corporation were retained by Smith and not tiled for record in the proper couiity until September 9, 1908, more than six years after the issuance of the patents involved in the present cases.

To the original hill in case 1,972, O. A. Smith, Frederick A. Kribs, Charles J. Swenson, and various other individuals were made defendants, and in case 1,973 Smith, Kribs, Werner, and various other individuals were made parties defendant. Both hills charged that all of the entries were made in pursuance of a conspiracy, specifically set out, to defraud the government of the title to the lands covered thereby, and that Smith acquired the title to the lands involved with notice of such fraud. Subpmnas ad respondendum were issued upon the filing of the bills and placed in the hands of the marshal for service, and were in due time served upon the resident defendants. Smith, Swen-son, and Werner were nonresidents of the state of Oregon, and in July following the filing of the bills the marshal returned the subpoenas without service upon them. On the 27th of that month, upon the application of the United States attorney, a warning was issued to them, which was subsequently served. In September and October, 1908, Smith, Kribs, and Werner filed pleas in abatement, alleging that the property in question had been conveyed to and was owned by the Linn & Lane Timber Company prior to the commencement of the suits, and that it was therefore an indispensable party. On November 16, 1908, the complainant filed an amended bill in each suit, making that company a party defendant, and subpoena was thereupon issued and placed in the hands of the marshal for service upon its resident agent, and service duly made. The amended hills contained substantially the same allegations as the original bills, and the additional allegation that the Linn & Lane Timber Company was organized by C. A. Smith to consummate the fraudulent acquisition of title to the lands in question; that the deed from himself to the company was not in fact made until after the commencement of the suits, but was fraudulently antedated; and that all of the deeds were concealed and kept from record in pursuance of such fraudulent purpose. To the bills as amended answers were filed denying all of the averments of fraud and setting up as affirmative defenses that Smith and the Linn & Lane Timber Company were purchasers of the property in good faith and without notice of any fraud; that the decision of the Secretary of the Interior directing that the applications for the lands pass to patent is conclusive on the government; and that the suits are barred by the statute of limitations because not commenced against the Linn & Lane Timber Company within six years from the date of the patents. Replications were filed in due time, and upon the issues joined the evidence was taken before the court below, upon which the judgments appealed from were given.