1. A tract of public land which has been sold by the proper
officer of the United States, and the purchase money therefor paid,
is not subject to entry while the sale continues in force.
2. A party in possession of lands, holding an uncancelled
certificate of the register of the land office within whose
district they are situate, showing that full payment has been made
for them, was sued in ejectment by the party who subsequently
entered them, and obtained a patent therefor.
Held that
the plaintiff is not entitled to recover.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This was an action of ejectment brought by Simmons, the
plaintiff in error, against Wagner, the defendant, to recover the
possession of the N.E. fr. 1/4 sec. 19, T. 4, N. R. 9 W. of the
third principal meridian, Illinois. Simmons claimed title under a
patent from the United States, dated April 25, 1871, granting him
the lands as the assignee of one Mecke, who entered them at the
land office Jan. 25, 1871. Wagner claimed through a purchase made
under the old credit system, April
Page 101 U. S. 261
17, 1816, by one John Lewis, and a paper bearing date July 8,
1829, which purported to be a certificate of full payment of the
purchase money in favor of William Russell.
A trial was had to the court without a jury, and resulted in a
judgment for the defendant. There was no special finding of facts,
but the evidence is set out in full in a bill of exceptions, which
concludes as follows:
"The court found the issue joined for the defendant on the
ground that the premises in controversy, on the issue of the final
certificate to William Russell, ceased to be a part of the public
domain, and were not thereafter subject to entry by individuals or
sale by the United States, and to which finding the plaintiff then
and there excepted."
To justify this conclusion, the court must have found as a fact
that the final certificate in question was a genuine document, and
issued by the proper officer in the regular course of his official
duty. This finding is conclusive on us, for we have many times
decided that a bill of exceptions cannot be used to bring up the
evidence for a review of the findings of fact.
The
Abbotsford, 98 U. S. 440, and
the cases there cited. We have to consider, then, upon this branch
of the case, only the question whether one in possession under such
a certificate, without a patent, can successfully defend against an
action of ejectment to recover the possession by the holder of a
patent issued upon a subsequent purchase of the land as part of the
public domain.
It is well settled that when lands have once been sold by the
United States and the purchase money paid, the lands sold are
segregated from the public domain, and are no longer subject to
entry. A subsequent sale and grant of the same lands to another
person would be absolutely null and void so long as the first sale
continued in force.
Wirth v. Branson, 98 U. S.
118;
Frisbie v.
Whitney, 9 Wall. 187;
Lyttle v.
The State of Arkansas, 9 How. 314. Where the right
to a patent has once become vested in a purchaser of public lands,
it is equivalent, so far as the government is concerned, to a
patent actually issued. The execution and delivery of the patent
after the right to it has become complete are the mere ministerial
acts of the officers charged with that duty.
Barney v.
Dolph, 97 U. S. 652;
Stark v.
Starrs, 6 Wall. 402.
This leads us to the inquiry whether Lewis and his assigns
Page 101 U. S. 262
had, under the facts as found, acquired a vested right in the
lands when the entry was made by means of which Simmons got his
patent. By the statute under which Lewis made his entry in 1816, it
was provided that purchases of public lands might be made on
credit, and that when payment of the purchase money was completed
the register of the land office should give
"a certificate of the same to the party, and, on producing to
the Secretary of the Treasury the same final certificate, the
President of the United States is hereby authorized to grant a
patent of the lands to the said purchaser, his heirs or
assigns."
2 Stat. 76, sec. 7. It follows, then, that if the final
certificate in this case was genuine and valid, as, in effect, it
has been found to be, Russell, the assignee of Lewis, had the legal
right to demand from the President a patent for the lands
described. This, certainly, was a complete segregation of the lands
in controversy at that date. The sale to Mecke and patent thereon
to Simmons, more than thirty years afterwards, were null and void,
and conveyed no title as against Russell and his assigns. It is of
no consequence whether the assignees of Russell could get a patent
in their own names or not. After the certificate issued the lands
were no longer in law a part of the public domain, and the
authority of the officers of the government to grant them otherwise
than to him, or some person holding his rights, was gone. The
question is not whether Wagner, if he was out of possession, could
recover in ejectment upon the certificate, but whether Simmons can
recover as against him. He is in a situation to avail himself of
the weakness of the title of his adversary, and need not assert his
own. We think it clear, therefore, that the court below was right
in giving judgment for defendant on the facts found.
Several exceptions were taken, during the progress of the trial,
to rulings on the admissibility of evidence. While errors have been
formally assigned on all these exceptions, only a few have been
insisted on in the argument. Some have been already disposed of, as
the objections were made entirely upon the assumption that nothing
short of a superior legal title could defeat the patent which
Simmons held. There was some evidence to prove the signatures of
the register to the final certificate. That was one of the facts in
the case, and the general
Page 101 U. S. 263
finding in favor of the validity of the certificate is
equivalent to a finding that its due execution had been proved. The
question here is not whether the deeds from Lewis to Russell,
without the clerk's certificate as to the official character of the
officer before whom the acknowledgment was made, would be
sufficient to justify the registered of the land office in issuing
his final certificate; but whether, in this action, they were
admissible without such certificate to prove the fact that an
assignment had been actually made. For aught we know, they were
properly certified when presented to the register. Copies from the
county records were offered in evidence below, and the records were
made in 1816, long before any action was had by the register. It is
not claimed that any certificate was necessary to authenticate them
for record or to make them admissible as evidence in the cause.
On the whole, we see no error in the record.
Judgment affirmed.