The proper Circuit Court of the United States has jurisdiction,
irrespective of the citizenship of the parties, of an action in
ejectment, in which the controversy turns upon the validity of a
patent of land from the United States.
Want of power in an officer of the Land Office to issue a land
patent may be shown in an action at law by extrinsic evidence,
although the patent may be issued with all the forms of law
required for a patent of public land.
Land within the limits of a valid Mexican grant (which grant was
sub judice when the grant of public land in aid of the
Pacific Railroads was made by the Act of July 1, 1862, as amended
July 2, 1864, and March 3, 1865), if found after the location of
the railroads to be within the prescribed limits on either side of
them, did not pass to the corporations as " public
Page 125 U. S. 619
land," if it was described by specific boundaries, or if it was
known or described by a name by which it could be identified; but
if it was described as a specific quantity within designated
outboundaries containing a greater area, only so much land within
the outboundaries as is necessary to cover the specific quantity
granted was excluded from the grant to the railroad companies.
Official documentary evidence of a Mexican grant which has been
confirmed by the proper authorities of the United States is
admissible on the trial of an action in ejectment to show a want of
power in the Land Office to issue a patent for the same land as
"public land" under the statutes granting "public land" to aid in
the construction of the Pacific Railroads.
It would seem also that parol testimony is admissible to
identify the land as coming within the terms of the grant.
Ejectment. Verdict for the plaintiff and judgment on the
verdict. Defendants sued out this writ of error. The case is stated
in the opinion.
Page 125 U. S. 620
MR. JUSTICE MILLER delivered the opinion of the Court.
William B. Carr, the defendant in error, brought his action of
ejectment in the Circuit Court of the United States for the
District of California against James Doolan and James McCue to
recover possession of 320 acres of land, described as
"the east half of section 27, township 2, range 1 east of the
Mount Diablo base and meridian of the public land surveys of the
United States of America in the State of California,"
and he had judgment for the land. No citizenship of either party
is alleged, and this is urged as a ground of reversal in this
Court, to which the case has been brought by a writ of error. It
however appears very clearly that the controversy turns upon the
validity of the patent from the United States under which plaintiff
claims title, and which was denied by the defendants. The Circuit
Court for the District of California therefore had jurisdiction of
the case as one arising under the Constitution and laws of the
United States within the meaning of the Act of March 3, 1875, 18
Stat. 470.
On the trial before the jury, the plaintiff introduced in
evidence a patent from the United States to the Central Pacific
Railroad Company for the land in question, among many other tracts,
dated February 28, 1874. This patent purported to be issued
under
"the Act of Congress approved July 1, 1862, as amended by the
Act of July 2, 1864, to aid in the construction
Page 125 U. S. 621
of a railroad and telegraph line from the Missouri River to the
Pacific Ocean, and to secure to the government the use of the same
for postal, military, and other purposes, and the Act of March 3,
1865,"
and in accordance with the laws of the State of California by
which the Central Pacific Railroad Company and the Western Pacific
Railroad Company were consolidated. Although the introduction of
this patent was objected to by the defendants, it appears upon its
face to be valid, and it was therefore properly admitted as
evidence. The plaintiff also introduced a deed of conveyance from
the Central Pacific Railroad Company to himself, and, after further
evidence as to the use and occupation of the land, its value, and
that the amount in controversy was over $10,000, rested.
The defendants thereupon, in order to show that the patent to
the railroad company was issued without authority of law and
therefore void, offered evidence to show
"That on, to-wit, April 10 A.D. 1839, the Mexican government
granted to Jose Noriega and Robert Livermore a certain tract of
land known by the name 'Las Pocitas,' and which embraced all the
land within the following boundaries,
viz., bounded on the
north by the Loinas de las Cuevas on the east by the Sierra de
Buenos Ayres, on the south by the dividing line of the
establishment of San Jose, and on the west by the rancho of Don
Jose Dolores Pacheco, containing in all two square leagues,
provided that quantity be contained within the said boundaries, and
if less than that quantity be found to be contained therein, then
that less quantity, and all of said described tract of land."
"That the Departmental Assembly of the Mexican Nation confirmed
said grant to said Noriega and Livermore on, to-wit, May 22,
1840."
"That on, to-wit, February 27, 1852, said Noriega and Livermore
petitioned the board of land commissioners appointed under the
provisions of the Act of Congress approved March 3, 1851, entitled
'An act to ascertain and settle the private land claims in the
State of California,' to have said grant confirmed, and on, to-wit,
the 14th day of February, A.D. 1854, the said board of land
commissioners confirmed the same
Page 125 U. S. 622
to said Noriega and Livermore, their heirs and assigns, and the
decree of confirmation, so made to said Mexican grant, by said
board of land commissioners described the boundaries thereof to be
on the north by the Lomas de las Cuevas, on the east by the Sierra
de Buenos Ayres, on the south by the dividing line of the
establishment of San Jose, and on the west by the rancho of Don
Jose Dolores Pacheco, provided that within the same no greater
quantity than two square leagues were found to be contained, and if
a less quantity should be found therein, then that less quantity
was confirmed, and all of said described tract of land."
"That the United States District Court for the Northern District
of California, on appeal to it from said decree of the board of
land commissioners, duly confirmed said Mexican grant on, to-wit,
February 18, A.D. 1859, to the same extent, and by the same
description, and under the same conditions, as said board of land
commissioners had done, and the Supreme Court of the United States
at the December term, A.D. 1860, affirmed the said decree of said
United States district court, and every part thereof."
"That during the year 1865, an official survey of the lands so
confirmed to said Noriega and Livermore was made by or under the
directions of the Surveyor General of the United States for the
State of California, and which was duly approved by said surveyor
general in the year A.D. 1866, and which survey included the half
section of land described in the complaint herein. That said survey
was set aside by the Secretary of the Interior in the year A.D.
1868, and a new survey ordered to be made of said Mexican grant,
within the boundaries set forth in said decrees, which should
contain but two square leagues of land, or thereabouts."
"That in March, 1869, the United States Surveyor General for
California caused the said Mexican grant to be surveyed and
designated in accordance with the claims thereof, and within the
boundaries set forth in said decrees of confirmation, the amount so
segregated consisting of about two square leagues, in accordance
with the said order of the Secretary of the Interior, and said
survey was approved by said surveyor
Page 125 U. S. 623
general on, to-wit, May 11, 1870, and the said survey was
approved by the Commissioner of the General Land Office on, to-wit,
March 1, 1871, and said survey was finally approved by the
Secretary of the Interior on to-wit, June 6, 1871, and on said
last-named date the surplus (or sobrante) of the land embraced
within the boundaries contained in said grant and in said decrees
became freed and discharged from the claims and reservation of said
Mexican grant, and became public land of the United States, and a
part of the public domain thereof."
"That the entire half section of land described in the complaint
herein is located and embraced within the boundaries stated and
tract described in and confirmed by the said decree of the board of
land commissioners of the United States district court and of the
Supreme Court of the United States, but it was not included within
the tract so surveyed in March, 1869, and finally approved on June
6, A.D. 1871, as aforesaid, as the final survey of said Mexican
grant, and said half section of land described in the complaint
herein was held and claimed as a part and parcel of said Mexican
grant, and was reserved as such continually from the 10th day of
April, A.D. 1839, down to the 6th day of June, A.D. 1871, and on
said last-named day it became for the first time public land of the
United States."
"That the line of the road of said Western Pacific Railroad
Company of California was definitely fixed, under the provisions of
said act of Congress, on, to-wit, the 30th day of January, 1865,
under and within the intent and meaning of the provisions of the
Act of Congress of July 1, 1862, entitled 'An act to aid in the
construction of a railroad and telegraph line from the Missouri
River to the Pacific Ocean,' and the act amendatory thereof and
supplemental thereto, and that on the 31st day of January, 1865,
the lands within the limits designated by said acts of Congress as
being granted to said railroad company were withdrawn from
preemption, private entry, and sale under the provisions of said
acts, and that no part of the lands described in the complaint has
been taken or used for any depot, shop, switch, turn-out, or
roadbed of
Page 125 U. S. 624
said railroad or of said railroad company. That said railroad
was completed prior to the year 1870."
The plaintiff objected to the proof thus offered to be made by
the defendants, and to other proof not material to the point now
under consideration, on the ground
"that the United States patent cannot be collaterally attacked
in this action; that it can be attacked by bill in equity only;
that the said United States patent, and the recitals therein
contained, are conclusive evidence in this action that the legal
title of the lands therein described was granted and transferred by
the United States to the grantee named in said patent, and, taken
in connection with the deed from the railroad company to the
plaintiff, is conclusive evidence of the plaintiff's right to
recover."
The court sustained the objection and refused to allow said
proof or any part of it to be made, to which the defendants
excepted. The court then charged the jury that
"The patent title to this land to the Central Pacific Railroad
Company is conclusive in this case. It cannot be attacked in a
collateral manner. If it can be attacked at all, it is only by a
direct proceeding for the purpose of vacating the patent, and,
without further remark upon this one way or the other, it may be
sufficient to say that I charge you the law is that so far as this
case is concerned, the patent from the government to the railroad
company -- the first patent introduced here -- is conclusive of the
rights of the parties in this case."
To this charge the defendants excepted, and the case before us
turns upon the correctness of the ruling of the court on the
proposition that in this action at law, none of the evidence
offered by the defendants could be received to impeach the validity
of the patent, and that such an issue as that attempted to be
raised by the defendants could only be made by a suit in equity to
set it aside.
There is no question as to the principle that where the officers
of the government have issued a patent in due from of law, which on
its face is sufficient to convey the title to the land described in
it, such patent is to be treated as valid in actions at law, as
distinguished from suits in equity, subject,
Page 125 U. S. 625
however at all times to the inquiry whether such officers had
the lawful authority to make a conveyance of the title. But if
those officers acted without authority, if the land which they
purported to convey had never been within their control or had been
withdrawn from that control at the time they undertook to exercise
such authority, then their act was void -- void for want of power
in them to act on the subject matter of the patent -- not merely
voidable; in which latter case, if the circumstances justified such
a decree, a direct proceeding, with proper averments and evidence,
would be required to establish that it was voidable, and should
therefore be avoided. The distinction is a manifest one, although
the circumstances that enter into it are not always easily defined.
It is nevertheless a clear distinction, established by law, and it
has been often asserted in this Court that even a patent from the
government of the United States, issued with all the forms of law,
may be shown to be void by extrinsic evidence if it be such
evidence as by its nature is capable of showing a want of authority
for its issue.
The decisions of this Court on this subject are so full and
decisive that a reference to a few of them is all that is
necessary.
Polk's Lessee v.
Wendall, 9 Cranch 87;
New
Orleans v. United States, 10 Pet. 730;
Wilcox v. Jackson, dem.
McConnell, 13 Pet. 509;
Stoddard v.
Chambers, 2 How. 317;
Easton
v. Salisbury, 21 How. 428;
Reichart
v. Felps, 6 Wall. 160;
Best
v. Polk, 18 Wall. 117;
Leavenworth Railroad v.
United States, 92 U. S. 733;
Newhall v. Sanger, 92 U. S. 761;
Sherman v. Buick, 93 U. S. 209;
Smelting Co. v. Kemp, 104 U. S. 636;
Steel v. Smelting Co., 106 U. S. 447;
Kansas Pacific Railway Co. v. Dunmeyer, 113
U. S. 642;
Reynolds v. Iron Silver Mining Co.,
116 U. S.
689.
The case of
Polk's Lessee v. Wendall is perhaps the
earliest one in this Court where this subject received full
consideration. That was an action of ejectment in the Circuit Court
of the United States for the Western District of Tennessee. On the
trial, the plaintiff, who was also the plaintiff in error,
introduced and relied upon a patent from the State of North
Carolina, of the date of April 17, 1800, which included the land in
controversy.
Page 125 U. S. 626
The defendant then offered in evidence a patent issued by the
same state, dated August 28, 1795, which also included the land in
dispute. The reading of this prior patent was objected to, but, the
objections being overruled, the patent was read in evidence.
Testimony was then offered to impeach it, and it is upon this
branch of the subject that the opinion of the Court, delivered by
Chief Justice Marshall, is pertinent. After considering the many
guards which the statutes provide to secure the regularity of
grants and the incipient rights of individuals, as well as to
protect the state from imposition, he expresses the view, in
language the substance of which has been often since repeated, that
in general, a court of equity appears to be a tribunal better
adapted to the object of examining into objections to a patent
which affect its validity than a court of law. He then says:
"In general, a court of equity is the more eligible tribunal for
these questions, and they ought to be excluded from a court of law.
But there are cases in which a grant is absolutely void, as where
the state has no title to the thing granted or where the officer
had no authority to issue the grant. In such cases, the validity of
the grant is necessarily examinable at law."
In that case, the Court held that it could be shown as a defense
to the patent that the entries on which it was granted were never
made, and that the warrants were forgeries, in which case no right
accrued under the act of 1777, and, no purchase of the land having
been made from the state, the grant was void by the express words
of the law, and that in rejecting the testimony of this point, the
circuit court erred. The judgment was therefore reversed.
The case of
Wilcox v. Jackson was an action of
ejectment brought against Wilcox, the commanding officer at Fort
Dearborn, to recover possession of land held by him in that
character. This land was entered under a preemption claim by one
Beaubean, who paid the purchase money and procured the register's
receipt therefor. He afterwards sold and conveyed his interest to
the lessor of the plaintiff. The question was whether the
register's certificate, which seems to have been treated as
sufficient evidence of title if it was valid, could be
Page 125 U. S. 627
impeached by testimony that the land was not subject to entry.
In the opinion of the Supreme Court on this subject, the language
used in
Elliott v.
Peirsol, 1 Pet. 340, is quoted with approval:
"Where a court has jurisdiction, it has a right to decide every
question which occurs in the cause, and whether its decision be
correct or otherwise, its judgment, until reversed, is regarded as
binding in every other court. But if it act without authority, its
judgments and orders are regarded as nullities. They are not
voidable, but simply void."
The court then proceeds:
"Now to apply this. Even assuming that the decision of the
register and receiver, in the absence of frauds, would be
conclusive as to the facts of the applicant's then being in
possession, and his cultivation during the preceding year, because
these questions are directly submitted to them, yet if they
undertake to grant preemptions in land in which the law declares
that they shall not be granted, then they are acting upon a subject
matter clearly not within their jurisdiction -- as much so as if a
court whose jurisdiction was declared not to extend beyond a given
sum should attempt to take cognizance of a case beyond that
sum."
In
Stoddard v. Chambers, which was an action of
ejectment, an attempt was made to show that the defendant's patent
was void. This Court said in that case:
"The location of Coontz was made in 1818, and his survey in
1818. At these dates, there can be no question that all land
claimed under a French or Spanish title, which claim had been filed
with the recorder of land titles, as the plaintiff's claim had
been, were reserved from sale by the acts of Congress above stated.
This reservation was continued up to the 26th of May, 1829, when it
ceased until it was revived by the Act of 9th July, 1832, and was
continued until the final confirmation of the plaintiff's title by
the act of 1836. The defendant's patent was issued the 16th of
July, 1832. So that it appears that when the defendant's claim was
entered, surveyed, and patented, the land covered by it, so far as
the location interferes with the plaintiff's survey, was not 'a
part of the public land authorized to be sold.' On the above facts,
the important question
Page 125 U. S. 628
arises whether the defendant's title is not void. That this is a
question as well examinable at law as in chancery will not be
controverted. That the elder legal title must prevail in the action
of ejectment is undoubted. But the inquiry here is whether the
defendant has any title as against the plaintiff's, and there seems
to be no difficulty in answering the question that he has not. His
location was made on lands not liable to be thus appropriated, but
expressly reserved, and this was the case when his patent was
issued. . . . No title can be held valid which has been acquired
against law, and such is the character of the defendant's title so
far as it trenches on the plaintiff's. . . . The issuing of a
patent is a ministerial act, which must be performed according to
law. A patent is utterly void and inoperative which is issued for
land that had been previously patented to another individual. . . .
The patent of the defendant, having been for land reserved from
such appropriation, is void, and also the survey of Coontz, so far
as either conflicts with the plaintiff's title."
These principles were recognized in and governed the decision of
the Court in
Easton v. Salisbury. In
Reichart v.
Felps, which was an action of ejectment, the plaintiff claimed
under two patents, of the dates of 1838 and 1853, which the Court
says "exhibit conclusive evidence of title if the land had not been
previously granted, reserved, or appropriated." This was permitted
to be proved by the patent of Gov. St. Clair dated February 12,
1799, duly registered in 1804, with a survey made in 1798. This was
held to be conclusive evidence that the land was so reserved, and
defeated the patents of 1838 and 1853.
In
Best v. Polk, the plaintiff, in support of his title
in an action of ejectment, produced a patent from the United States
dated March 13, 1847, which seemed in all respects to be regular,
granting the section of land described to James Brown in fee, who
conveyed to Polk. The defendant, Best, being in possession,
attempted to defeat this patent by showing that the land in
question was reserved under the treaties of 1832 and 1834 with the
Chickasaw Nation of Indians, which authorized members of the tribe
who desired to do so, and heads
Page 125 U. S. 629
of families, to locate lands which, when so located, were to be
reserved from sale or other disposition by the United States. The
defendant undertook to show that the land on which he was settled,
which was the subject of controversy, had been properly located by
an Indian, and was therefore not liable to sale at the time that
Brown purchased it of the Land Officers. The court below rejected
the evidence because of certain deficiencies in the certificate
made by one Edmondson, a register of the Land Office at Pontotoc,
who certified that the land in question was located as a reserve by
a Chickasaw Indian under the treaty in July, 1839. This Court
reversed the judgment rendered in favor of plaintiff in the court
below, holding that the certificate was sufficient and that it
showed that under the treaty, and by the action of the Indian in
settling upon it and procuring a certificate of that fact from the
proper officer, the land had become reserved in the language of the
treaty, and that the patent under which the plaintiff claimed was
therefore void, citing also
Polk's Lessee v. Wendall and
Bagnell v.
Broderick, 13 Pet. 436.
In the case of
Reynolds v. Iron Silver Mining Co.,
116 U. S. 687,
decided last year, which was an action to recover possession of
part of a vein or lode of mineral deposit, plaintiff relied on a
patent for a placer mine, and the contested vein was within the
lines of its superficial area extended perpendicularly. The statute
on which this patent was issued declared that it should not confer
any right to veins known to exist within it at the time the grant
was made. Defendants offered evidence to show that the vein in
controversy was known to the patentee to exist at the time of his
application for the patent.
The circuit court charged the jury that because the defendants
had shown no right whatever to the vein, but were in possession as
naked trespassers, they could not, in defense of that possession,
show this defect in plaintiff's title; but this Court (the Chief
Justice dissenting) held that this ruling erroneous and that, as in
all other actions of ejectment, plaintiff must recover on the
strength of his own title, and not on the weakness of
defendants'.
Page 125 U. S. 630
With the principles so well established by these decisions of
the right in an action at law to prove by competent extrinsic
evidence that a patent of the United States is void for want of
power in the officers to issue it, and the facts which show that
want of power, we come to the case of
Newhall v. Sanger,
92 U. S. 761, which
established the proposition that land covered by a Mexican claim
was not public land within the meaning of the act of Congress
making the grant to the railroads, but was reserved from the
granting clause of those statutes.
In
Leavenworth, Lawrence &c. Railroad v. United
States, 92 U. S. 733,
decided at the same time with
Newhall v. Sanger, the
opinions in both cases being delivered by Mr. Justice Davis, the
question of the right to show this want of authority was also very
fully discussed. That was a case in which the railroad company had
brought suit in equity to establish its title to tracts of land
lying within the Osage country, in Kansas, which had been certified
to the governor of that state as part of the grant made by Congress
to aid in the construction of certain railroads. This was done by
the supposed authority of the Act of March 3, 1863, 12 Stat. 772,
granting every alternate section of land in the State of Kansas,
designated by odd numbers, for ten sections in width on each side
of said road and of each of its branches.
It also contained the usual reservation that in case it should
appear, when the line or route of said railroad and branches was
definitely fixed, that the United States had sold any of the land
granted, or that the right of preemption or homestead settlement
had attached to the same, then the right was given to select other
lands, and it provided that any and all lands theretofore reserved
to the United States by the acts of Congress, or in any other
manner by competent authority, for the purpose of aiding in any
object of internal improvement or for any other purpose whatever,
"be, and the same are hereby, reserved to the United States from
the operation of the act."
The route of the road in that case was located through lands
which had belonged to the Osage Indians, and to which their title
was not extinguished until September 29, 1865. This Court held that
notwithstanding the generality of the granting
Page 125 U. S. 631
clause, it was not intended by that statute to grant anything
but
public lands of the United States at the date of the
grant, and that the reservation clause was sufficient to except
these lands, then in the possession of the Indians, out of the
grant, even if the general language could be construed to include
them. The court said:
"A special exception of this land was not necessary in these
grants because the policy which dictated them confined them to land
which Congress could rightfully bestow without disturbing existing
relations and producing vexatious conflicts. The legislation which
reserved it for any purpose excluded it from disposal as the public
lands are usually disposed of."
In the case of
Newhall v. Sanger, the object of the
suit was to determine the ownership of a quarter section of land in
California. The patent under which the appellee claimed was issued
in 1870 under the act of 1862 granting lands to railroad companies
for the purpose of constructing a railroad to the Pacific Ocean. 12
Stat. 4898, 492. One of the companies was the Western Pacific
Railroad Company, to which was granted every alternate section of
public land, designated by odd numbers, within ten miles on each
side of its road, not sold, reserved, or otherwise disposed of by
the United States, and to which a homestead or preemption claim may
not have attached at the time the line of the road was definitely
fixed. The act also declared, as in other cases, that it should not
defeat or impair any preemption, homestead, swamp land, or other
lawful claim nor include any government reservation or mineral
lands or the improvements of any
bona fide settler. The
appellant asserted title under a patent of the United States of
later date which recited that the land was within the exterior
limits of a Mexican grant called "Moquelamos," and that a patent
had by mistake been issued to the company. It was conceded that the
land in controversy fell within the limits of the railroad grant as
enlarged by the amendatory act of 1864, 13 Stat. 358, the same act
now under consideration, "and the question arises," said the
Court,
"whether lands within the boundaries of an alleged Mexican or
Spanish grant which was then
sub judice are public within
the meaning of the acts of Congress
Page 125 U. S. 632
under which the patent whereon the appellee's title rests was
issued to the railroad company."
It will be seen that this is the precise question presented in
the case under consideration, and the Court, referring to the
preceding case of
Leavenworth, Lawrence &c. Railroad v.
United States and reciting the fact that in that case they
confined a grant of every alternate section of "
land" to
such whereto the complete title was absolutely vested in the United
States, proceeds:
"The acts which govern this case are more explicit, and leave
less room for construction. The words 'public lands' are habitually
used in our legislation to describe such as are subject to sale or
other disposal under general laws. That they were so employed in
this instance is evident from the fact that to them alone could the
order withdrawing lands from preemption, private entry, and sale
apply."
The Court then goes on to show that the status of lands included
in a Spanish or Mexican claim pending before tribunals charged with
the duty of adjudicating it was such that the right of private
property could not be impaired by a change of sovereignty, and that
such lands were not included in the phrase "public lands" of these
specific railroad grants, and that until such claims were finally
decided to be invalid, they were not restored to the body of public
lands subject to be granted.
Those Mexican claims were often described, or attempted to be
described, by specific boundaries. They were often claims for a
definite quantity of land within much larger outboundaries, and
they were frequently described by the name of a place or ranch. To
the extent of the claim when the grant was for land with specific
boundaries or known by a particular name, and to the extent of the
quantity claimed within outboundaries containing a greater area,
they are excluded from the grant to the railroad company. Indeed,
this exclusion did not depend upon the validity of the claim
asserted or its final establishment, but upon the fact that there
existed a claim of a right under a grant by the Mexican government,
which was yet undetermined, and to which therefore the phrase
"public lands" could not attach, and which the statute did not
include, although it might be found within the limits prescribed on
each side of the road when located.
Page 125 U. S. 633
It is objected that the testimony offered in the present case,
and rejected by the court below, to prove the facts concerning the
Mexican grant which would defeat the patent to the railroad company
is parol, and that even conceding the right to assail the patent in
an action at law founded on the title conveyed by it, this cannot
be done by parol testimony. But without deciding in this case how
far such testimony can be received in an action at law for that
purpose, it is sufficient to say that the evidence rejected by the
court below in the present case is entirely documentary, and matter
of record, being the written evidence of the grant by the Mexican
government of its confirmation by the Land Commission of
California, of the affirmance of the award of that commission by
the district court of the United States, and by this Court, and of
the record of the two surveys made by the surveyor of the United
States, the latter confirmed by the Commissioner of the General
Land Office, showing the location and confirmation of the Mexican
grant and the dates at which all those transactions occurred. We do
not doubt that this evidence was admissible for the purpose for
which it was offered, and if any oral testimony were necessary to
identify the land in controversy as coming within the Mexican grant
and the surveys of the Land Office under the decisions of the
courts, we do not think it would be inadmissible, although it is
not clear that any such was necessary or was offered.
For the radical error of the court in rejecting this evidence
and in the instructions given to the jury on the same point,
The judgment is reversed and the case remanded to the
circuit court for a new trial.
MR. CHIEF JUSTICE WAITE, dissenting.
I feel compelled to withhold my assent to this judgment. The
ground of my dissent is not that, in a proper case, the validity of
a patent of the United States for the conveyance of lands may not
be attacked in a suit at law by proving that it was issued without
the requisite authority, but that this is not a proper case for the
application of that rule. To show that I
Page 125 U. S. 634
recognize the existence of the right to make such proof, if the
person who offers it is in a position to do so, it is only
necessary to refer to
Simmons v. Wagner, 101 U.
S. 260, where, as the organ of the court, I announced
its decision that one in possession under a certificate issued by a
proper officer in the regular course of his official duty, showing
that he had bought and paid for the land, might successfully defend
an action of ejectment brought against him by the holder of a
patent issued upon an entry by another party made long after his
rights accrued, and this because, after the purchase under which he
was in possession, the land was no longer a part of the public
domain, and the officers of the United States had no authority in
law to sell it a second time.
In my opinion, however, such proof can only be made by one who
holds a right at law or in equity which is prior in time to that of
the patentee, or by one who claims under the United States by a
subsequent grant, or some authorized recognition of title. Unless I
have misinterpreted the cases on this subject, that has always been
the doctrine of this Court.
In
Polk's Lessee v.
Wendall, 9 Cranch 87, the controversy was between
two persons, one holding under a patent issued by the State of
North Carolina dated August 28, 1795, and the other under another
patent for the same land, issued by the same state, dated April 17,
1800, and the question was whether, as against the second patent
the first was good. In
Wilcox v.
Jackson, 13 Pet. 498, the defendant was an officer
of the United States in possession of a military post under the
authority of the government, and the plaintiff was the holder of
certificates of the register and receiver of the proper land
office, showing that he had bought and paid for the land under a
preemption entry. The officer in possession, holding under and for
the United States, was allowed to prove that at the time of the
entry and purchase, the land had been reserved from the mass of
public lands, and that its sale by the officers of the government
was unauthorized and void. In
Stoddard v.
Chambers, 2 How. 284, the controversy was between
one claiming under a Spanish grant and a patentee under the
location of a New Madrid certificate. The confirmation of the
Page 125 U. S. 635
grant was not made until after the location, but, as the right
of the grantee was prior in time to that of the New Madrid
claimant, he was permitted to show that the land was reserved from
sale, and consequently the location of the certificate was
unauthorized, and the patent thereunder invalid. In
Easton v.
Salisbury, 21 How. 426, the question arose upon
substantially the same facts and was decided in the same way. In
Reichart v.
Felps, 6 Wall. 160, the holder of a French
settler's claim, recognized in the grant by Virginia to the United
States of the Northwest Territory and confirmed or patented by
Governor St. Clair under the Act of June 20, 1788, was permitted to
contest the validity of patents issued by the United States for the
same land, one in 1838 and one in 1853, on the ground that the land
had "been previously granted, reserved from sale, or appropriated,"
and therefore the patents were inoperative and void. In
Best v. Polk,
18 Wall. 112, the parties were the holder of a title under a treaty
of the United States with the Chickasaw Nation of Indians and a
junior patentee. The holder of the elder title was permitted to
show that, when the claim was made under which the subsequent
patent as issued, the land had been "previously granted, reserved
from sale, or appropriated," and consequently no title could be
acquired under it. In
Newhall v. Sanger, 92 U. S.
761, one side claimed under a patent issued upon the
same railroad grant that is involved in the present suit, and the
other under a subsequent patent, which recited that "the land was
within the exterior limits of a Mexican grant called Moquelamos,
and that a patent had, by mistake, been issued to the [railroad]
company." Such a junior patentee was allowed in that suit to
contest the validity of the elder patent to the company. The case
of
Leavenworth, Lawrence & Galveston Railroad v. United
States, 92 U. S. 733, was a
suit brought by the United States against the railroad company to
quiet its title to lands claimed by the company under a land grant.
That of
Kansas Pacific Railway v. Dunmeyer, 113 U.
S. 629, so much relied on, presented the question as
between the claimant under a railroad grant and the holder of a
patent from the United States issued on a homestead entry made
subsequently.
Sherman
Page 125 U. S. 636
v. Buick, 93 U. S. 209, was
between the holder of a patent of the United States and the holder
of a patent from the State of California, claiming under a prior
grant from the United States of the same land for school purposes.
The Smelting Company Cases, 104 U.
S. 636 and
106 U. S. 106 U.S.
447, were between those claiming under a patent for a placer mining
claim and certain occupants of lots in the townsite of Leadville
which had been reserved from sale prior to the location of the
claim. In
Reynolds v. Iron Silver Mining Company,
116 U. S. 687, the
question was not one of admitting proof to invalidate a patent, but
as to the legal effect of a patent for a placer mining claim, and
it was held not to include veins or lodes within the boundaries of
the claim as located on the surface, and extended vertically
downwards, if known to exist when the patent was issued. In
Wright v. Roseberry, 121 U. S. 488,
decided at the last term, one party held under a conveyance by the
State of California of a tract of land which the state claimed
under the grant by the United States of swamp and overflowed lands,
and the other under a patent from the United States issued upon a
preemption entry. Many more cases of a similar character might be
cited, but it is needless to pursue them further. They establish
beyond all question that if one holds under an older title, or if
he is in a position under a junior claim to represent the title of
the government, he may attack the validity of a patent in a suit at
law on the ground that it was issued without proper authority.
On the other hand, it seems to me equally well settled that if
he who seeks to contest the patent is a volunteer, a mere intruder,
he will not be heard. Thus, in
Hoofnagle v.
Anderson, 7 Wheat. 212, the contest was between the
holders of two Virginia military land warrants who had made their
entries on the same tract of land. One entered and got his patent
eighteen months before the other located his warrant. At the trial,
the holder of the junior warrant sought to show that the former
grant was "obtained contrary to law, being founded on a warrant
which was issued by fraud or mistake," but Chief Justice Marshall,
in delivering the opinion of the Court, said:
"The title of the respondent to the particular tract
included
Page 125 U. S. 637
in his patent was complete before that of the appellants
commenced. It is not doubted that a patent appropriates land. Any
defects in the preliminary steps which are required by law are
cured by the patent. It is a title from its date, and has always
been held conclusive against all those whose rights did not
commence previous to its emanation. Courts of equity have
considered an entry as the commencement of title, and have
sustained a valid entry against a patent founded on a prior
defective entry, if issued after such valid entry was made. But
they have gone no further. They have never sustained an entry made
after the date of the patent. They have always rejected such
claims. The reason is obvious. A patent appropriates the land it
covers, and that land, being no longer vacant, is no longer subject
to location. If the patent has been issued irregularly, the
government may provide means for repealing it, but no individual
has a right to annul it, to consider the land as still vacant and
appropriate it to himself."
Pp.
20 U. S. 214.
This seems to me to be the true rule, and one way the government
may adopt to annul a patent which has been issued without authority
of law is to grant the land to another, and thus clothe the new
grantee with its own power to test the validity of the former
proceedings to divest it of title. Such a grantee will thus be made
to represent the United States by authority, and he may sue for the
land. With such a title or something equivalent to it, the courts
may properly, as has been done heretofore, allow him to assert his
own title -- that is, the title of the government -- against one
which was apparently granted before. Such an attack on the title
would be direct, not collateral, as authority to proceed had been
given by the government for that purpose.
In
Cooper v.
Roberts, 18 How 173, the suit was brought by one
holding title under a patent of the State of Michigan conveying a
tract of what was claimed to be school land against one who had got
into possession under a lease by the Secretary of War for mining
purposes. The title of the state was adjudged to be good as against
the United States and the defendant in possession. The defendant
then objected to the plaintiff's right of recovery because
"the officers of the state
Page 125 U. S. 638
violated the statutes of Michigan in selling the lands, after
they were known, or might have been known, to contain
minerals."
As to this, Mr. Justice Campbell, speaking for the Court, p.
59 U. S. 182,
said:
"Without a nice inquiry into these statutes to ascertain whether
they reserve such lands from sale, or into the disputed fact
whether they were known or might have been known to contain
minerals, we are of opinion that the defendant is not in a
condition to raise the question on this issue. The officers of the
State of Michigan, embracing the chief magistrate of the state, and
who have the charge and superintendence of this property, certify
this sale to have been made pursuant to law, and have clothed the
purchaser with the most solemn evidence of title. The defendant
does not claim in privity with Michigan, but holds an adverse
right, and is a trespasser upon the land to which her title is
attached. Michigan has not complained of the sale, and retains, so
far as this case shows, the price paid for it. Under these
circumstances, we must regard the patent as conclusive of the fact
of a valid and regular sale on this issue."
So in
Field v.
Seabury, 19 How. 323, the same rule appears. There
it was said that the question whether a grant from a sovereignty or
by legislative authority was obtained by fraud was exclusively
between the sovereignty making the grant and the grantee. It seems
to me clear that the same rule applies plies to questions of
illegality. The case of
Spencer v.
Lapsley, 20 How. 264, is equally significant.
There, the question was as to the validity of a Mexican grant, and
the Court refused to investigate the fairness of the grant at the
instance of one who had "entered without a color of title," and in
so doing said, again speaking through Mr. Justice Campbell:
"Neither the State of Coahuila and Texas nor the Republic of
Texas nor the State of Texas has taken measures to cancel this
grant, nor have they conferred on the defendant any commission to
vindicate them from wrong. He is a volunteer. The doctrines of the
Court do not favor such a litigant."
The last case in this Court to which I will refer in the present
connection is
Ehrhardt v. Hogaboom, 115 U. S.
67. There, the suit was brought by one claiming title
under a patent of the
Page 125 U. S. 639
United States issued to a preemption settler against one who
contended the patent was void because the lands were at the time of
the preemption entry, swamp and overflowed lands which passed to
the State of California under an act of Congress passed in 1850. As
a defense to the action, the defendant offered to prove the
character of the land, but we held this offer was properly denied
because he was, as to the land in dispute,
"a simple intruder, without claim or color of title. He was
therefore in no position to call in question the validity of the
patent of the United States . . . and require the plaintiff to
vindicate the action of the officers of the Land Department in
issuing it."
In some of the state courts, the same ruling has been made.
Thus, in
Crommelin v. Minter, 9 Ala. 594, before the
Supreme Court of Alabama in 1846, it was decided that
"A patent fraudulently obtained, or which has issued in
violation of law, is void, and does not authorize a recovery
against a party in possession under color of title. But a mere
intruder cannot insist on the invalidity of the patent."
And so in
Doll v. Meador, 16 Cal. 295, it was held by
the Supreme Court of California in 1860 that
"A patent not void upon its face cannot be questioned, either
collaterally or directly, by persons who do not show themselves to
be in privity with a common or paramount source of title,"
and the court, in delivering its opinion, was careful to say,
"the point here is as to the status of the party who can raise any
question as to its [the patent's] validity when it is regular on
its face."
I cannot but believe this is the true doctrine. If the
government is satisfied with what has been done, all others must
be, and it will be deemed in law to be satisfied unless it proceeds
itself to correct the error or authorizes some one else to do
so.
It only remains to consider what position Doolan and McCue
occupy in this litigation. The land was patented to the Central
Pacific Railroad Company, February 28, 1874, and the railroad
company conveyed to Carr, the plaintiff below, June 10, 1874. No
attempt has been made by the United States, so far as this record
discloses, to annul the patent. On the 10th of November, 1882,
Doolan and McCue each entered on 160
Page 125 U. S. 640
acres of the land under a claim of preemption settlement. Each
of them then made and subscribed a declaratory statement of his
intention to claim and preempt the land on which he had settled
under the laws of the United States, and presented it to the
register of the proper Land Office, but he refused to receive it on
the ground of the existence of the patent to the railroad company.
This is all the claim of title which they have, but the decisions
are uniform to the effect that what had thus been done conferred on
them no rights as against the United States. Certainly it gave them
no right to represent the United States in a suit to avoid the
patent which had been issued.
In
Frisbie v.
Whitney, 9 Wall. 187, it appeared that in March,
1862, this Court decided that what had been supposed to be a valid
Mexican grant of the Soscol Ranch was void for want of authority in
the Mexican government to make it. At the time of this decision,
Frisbie was in possession of the quarter-section involved in the
suit under the Mexican title. Whitney afterwards took forcible
possession of the same quarter-section, and claimed to hold it as a
settler under the preemption laws of the United States. He applied
to the proper land officers to make his declaration under the
statute, but they refused to receive it. On the 3d of March, 1863,
Congress passed an act, c. 116, 12 Stat. 808, by which the
bona
fide purchasers under the Mexican title were allowed to buy
the lands from the United States. Frisbie availed himself of this
statute, and got his patent. Whitney then sued him for a conveyance
of the legal title because of the alleged superior equity which he,
Whitney, had acquired by his preemption settlement. This Court,
however, decided that a settlement on the public lands of the
United States, no matter how long continued, conferred no right
against the government, and, it was added,
"the land continues subject to the absolute disposing power of
Congress until the settler has made the required proof of
settlement and improvement, and has paid the requisite purchase
money."
For this reason, the title of Frisbie was sustained, and the
bill dismissed.
Yosemite Valley
Case, 15 Wall. 77, is to the same effect.
Page 125 U. S. 641
It has also been held that a right of preemption can never be
acquired by intrusion upon the actual possession of another.
Trenouth v. San Francisco, 100 U.
S. 251;
Atherton v. Fowler, 96 U. S.
513. In the present case, Carr alleges that he was in
possession when the entry was made by Doolan and McCue, and this is
not denied except by saying that Carr was not ousted at any time
while he was the owner of the land.
As these parties have received from the government no
recognition of their preemption entries therefor, and have not paid
the purchase money, they stand before the law as mere volunteers
and intruders on the possession of the patentees. They do not and
cannot represent the title of the United States as against the
patent, and are not entitled to be heard in opposition to it. As to
them in their present situation, the land was as much segregated
from the public domain by the issue of the patent as it would have
been if there were no dispute about the authority for its
issue.
To show that Congress has been accustomed to treat such
preemption settlers as mere intruders, and entitled to no
consideration by the government, it is only necessary to refer to
the act for the relief of purchasers of parts of the Soscol Ranch,
just cited, and the Act passed March 3, 1887, c. 376, 24 Stat. 556,
which directs the Secretary of the Interior immediately to adjust,
in accordance with the decisions of this Court, each of the land
grants made by Congress to aid in the construction of railroads and
theretofore unadjusted, and to demand from the several companies a
relinquishment of their title to all lands that had been
erroneously certified or patented. It there provides, ยง 4, that if
any of the lands so erroneously certified or patented, with a few
specified exceptions, have
"been sold by the grantee company to citizens of the United
States, or to persons who have declared their intention to become
such citizens, the person or persons so purchasing in good faith,
his heirs or assigns, shall be entitled to the land so purchased
upon making proof of the fact of such purchase at the proper land
office within such time and under such rules as may be prescribed
by the Secretary of the Interior after the grants respectively
shall have been adjusted and patents
Page 125 U. S. 642
of the United States shall issue therefor, and shall relate back
to the date of the original certification or patenting, and the
Secretary of the Interior, on behalf of the United States, shall
demand payment from the company which has so disposed of such lands
of an amount equal to the government price of similar lands, and in
case of neglect or refusal of such company to make payment, as
hereafter specified, within ninety days after the demand shall have
been made, the Attorney General shall cause suit or suits to be
brought against such company for the said amount."
I cannot believe that one whose claim to rights, under the laws
of the United States, is thus ignored by Congress in what was
decided in
Frisbie v. Whitney, ubi supra, to be valid
legislation can avail himself of a want of authority in the
officers of the government to issue a patent which is valid on its
face to protect himself against eviction from the patented land on
which he has entered as a trespasser, and without any color of
title.