“ It follows that upon the findings it cannot be said that the arrangement between Stoiber and the company was forbidden by law, or that the entry was fraudulently procured.
But it is said that an affirmative finding that the entry was not fraudulently procured is essential to sustain the judgment. To this we cannot agree. Fraud is not presumed, and one who bases a right or defense upon it should allege and prove it. The government's answer contains no allegation of fraud, and the silence of the findings may rightly be taken as showing that none was proved. ”

“ A corporation is an association of persons within the meaning of the law (United States v. Trinidad Coal & Coking Co., supra) , and therefore the company here, which was a Colorado corporation, lawfully could have made the entry in question in its own name, unless it or some member of it had had the benefit of the coal-land law, or was seeking, through this and other like entries, to acquire coal land in excess of the quantity prescribed. ”

“ As reasons for asking a reversal of the judgment the government contends that the facts as found disclose, first, that the company is not an assign within the meaning of the act, and, second, that the entry was procured fraudulently, in contravention of the coal-land laws, and therefore that repayment cannot be allowed. ”