Where a patent for land is issued by the officers of the United
States, the presumption is that it is valid and passes the legal
title. But this may be rebutted by proof that the officers had no
authority to issue it on account of the land's not being subject to
entry and grant.
The Act of March 3, 1817, which was passed to carry into effect
the Treaty of August 9, 1814, with the Creek Indians, provided in
the 6th section that no land reserved to a Creek warrior should be
offered for sale by the register of the land office unless
specially directed by the Secretary of the Treasury.
The Secretary was authorized to decide whether or not the Indian
had abandoned the land. If abandoned, it became forfeited to the
United States.
Hence, where such a reservation was offered for sale and a
patent issued for it, the presumption is that the Secretary had
decided the fact of abandonment and issued the order for the
sale.
The case is stated in the opinion of the Court.
MR. JUSTICE CATRON delivered the opinion of the Court.
The material facts of this case are as follows:
On the 12th April, 1820, a certificate, No. 28, issued from the
land office of the United States to Tallasse Fixico, a friendly
chief of the Creeks, appropriating to his use and occupancy
fraction 24, T. 18, R. 18, east of Coosa River, in pursuance of the
Act of congress of 3 March, 1817, passed to carry into effect the
Treaty of Fort Jackson, of August 9, 1814, with the Creek
Indians.
The reserve, Tallasse Fixico, was in possession of the land, and
while in possession, in 1828, he sold it, for a valuable
consideration, to George Taylor, to whom he gave a deed and the
possession of the land at the time of sale.
The said Taylor, while in possession, in July, 1834, sold to C.
Crommelin, the defendant in error, a portion of the land, about
forty acres. The purchaser received deeds for the same at the time
of sale, dated 12 and 14 July, 1834, and immediately or a short
time thereafter entered into possession, and has continued in
possession until the present time.
On the 4th June, 1839, Isham Bilberry and Samuel Lee obtained
from the land office at Cahawba a preemption certificate, No.
35,014, in their favor, under the preemption act of
Page 59 U. S. 88
1834, for southeast fractional quarter of sec. 24, T. 18, R. 18,
being a part of Tallasse Fixico's reservation, and embracing the
land in possession of the defendant in error, and which is the land
sued for, namely the forty acres purchased by him from Taylor.
On the same day, namely 4 June, 1839, Bilberry and Lee assigned
the preemption certificate to the plaintiffs in error, Hiram F.
Saltmarsh, William T. Minter, and Ashley Parker, in whose favor a
patent was subsequently issued.
The state court charged the jury
"That if they found the defendant held for a series of years,
and continued to hold possession under deeds from Taylor, and that
Taylor held possession under Tallasse Fixico, and that the
plaintiffs were never in possession that then the defendant held
under color of title and was in a condition to contest the validity
of the patent."
"2. That the certificate of possession which issued to Tallasse
Fixico, was an appropriation of the land by the government of the
United States to a particular purpose, and that if Tallasse Fixico,
in 1828 or 1829, did abandon said land, it was not subject to entry
under the preemption laws. That the patent under which the
plaintiffs claimed title was issued under the preemption laws of
the United States; that the land conveyed by said patent was not
subject to entry under preemption, and that therefore said patent
had issued contrary to law, and was void."
To this charge the plaintiffs excepted.
A verdict and judgment were rendered for the defendant, and the
plaintiffs took up the cause to the Supreme Court of Alabama, where
the judgment was affirmed, to bring up which judgment a writ of
error was prosecuted out of this Court.
The state court in effect pronounced the patent under which the
plaintiffs claimed title to be void for want of authority in the
officers of the United States to issue it, on the supposition that
the land was reserved from sale when it was entered and granted.
The presumption is that the patent is valid, and passed the legal
title, and furthermore it is
prima facie evidence of
itself that all the incipient steps had been regularly taken before
the title was perfected by the patent. It has been so held by this
Court in many instances, commencing with the case of
Polk v.
Wendell, 9 Cranch 98-99.
But if the executive officers had no authority to issue the
patent because the land was not subject to entry and grant, then it
is void and the want of power may be proved by a defendant at law,
13 U. S. 9 Cranch
99. And the question here is whether the defendant has proved the
want of authority.
The 6th section of the act of 1817 provides that no land
Page 59 U. S. 89
reserved to a Creek warrior should be offered for sale by the
register of the land office unless specially directed by the
Secretary of the Treasury. Both by the treaty and the act of
congress it was declared that if the Indian abandoned the reserved
land, it became forfeited to the United States. The fact of
abandonment the Secretary was authorized to decide, and if he did
so find, he might then order the land to be sold as other public
lands. The rule being that the patent is evidence that all previous
steps had been regularly taken to justify making of the patent, and
one of the necessary previous steps here being an order from the
Secretary to the register to offer the land for sale, because the
warrior had abandoned it, we are bound to presume that the order
was given. That such is the effect, as evidence, of the patent
produced by the plaintiffs was adjudged in the case of
Bagnell v.
Broderick, 13 Pet. 450, and is not open to
controversy anywhere, and the state court was mistaken in holding
otherwise.
The defendant being in possession without any title from the
United States, we deem it unnecessary to discuss the effect of the
parol proof introduced in the state circuit court to defeat the
patent.
It is therefore ordered that the judgment of the Supreme
Court of Alabama be reversed.
* MR. JUSTICE CAMPBELL did not sit in this cause.