1. The statutory provisions prescribing the manner in which a
patent of the United States for land shall be executed are
mandatory. No equivalent for any of the required formalities is
allowed, but each of the integral acts to be performed is essential
to the perfection and validity of such an instrument. If,
therefore, it is not actually countersigned by the recorder of the
General Land Office in person or, in his absence, by the principal
clerk of private land claims as acting recorder, it is not executed
according to law and does not pass the title of the United
States.
2. The record in the volume kept for that purpose at the General
Land Office at Washington of a patent which has been executed in
the manner which the law directs is evidence of the same dignity
and is subject to the same defenses as the patent itself. If the
instrument, as the same appears of record, was not so executed and
was therefore insufficient on its face to transfer the title of the
United States, the record raises no presumption that a patent duly
executed was delivered to and accepted by the grantee.
3. The Act of March 3, 1843, 5 Stat. 627, in relation to
exemplifications of records, does not dispense with the provisions
of law touching the signing and countersigning. The record, to
prove a valid patent, must still show that they were complied with.
The names need not be fully inserted in the record, but it must
appear in some form that they were actually signed to the patent
when it was issued.
4. The failure to record a patent does not defeat the grant.
This was ejectment by William McGarrahan in the District Court
of the Twentieth Judicial District of California in and for Santa
Clara County against the New Idria Mining Company to recover
possession of certain lands in that state known as the Rancho
Panoche Grande. He claimed them under a patent therefor which he
alleged had been issued by the United States to Vicente P. Gomez,
his grantor, under the act of Congress to
Page 96 U. S. 317
ascertain and settle the private land claims in the State of
California, approved March 3, 1851, 9 Stat. 631. The patent was not
produced upon the trial, but the plaintiff put in evidence a
certified copy of an instrument as the same was recorded in a
volume kept at the General Land Office at Washington for the
recording of patents of the United States for confirmed Mexican
land grants in California, being volume 4 of such records, upon
pages 312-321 inclusive. The concluding portion of that copy is as
follows:
"In testimony whereof, I, Abraham Lincoln, President of the
United States, have caused these letters to be made patent, and the
seal of the General Land Office to be hereunto affixed."
"Given under my hand at the City of Washington, this fourteenth
day of March, in the year of our Lord one thousand eight hundred
and sixty three, and of the independence of the United States the
eighty seventh."
"[L. S.] By the President: ABRAHAM LINCOLN"
"By W. O. STODDARD"
"
Secretary"
"
Acting Recorder of the General Land Office"
As the only question decided by this court is whether the
exemplification admitted on the trial of the cause shows upon its
face the execution of a patent sufficient in law to pass the title
of the United States, no reference is made to the other points
which arose in the court below and were elaborately discussed by
counsel here.
The district court rendered judgment for the defendant, which
was affirmed by the supreme court. McGarrahan then sued out this
writ of error.
Page 96 U. S. 318
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The federal question in this case is, whether the record in the
volume kept at the General Land Office at Washington for the
recording of patents of the United States issued upon California
confirmed Mexican grants, relied upon by McGarrahan as evidence of
his title, proves a conveyance by the United States of the land in
controversy to Vicente P. Gomez, his grantor. In his behalf it is
contended that the record is itself the grant, or, if not, that it
proves the issue to Gomez of a patent which does grant the legal
title to the property described.
Page 96 U. S. 319
That the record is not itself the grant of title is evident. The
thirteenth section of the act "to ascertain and settle the private
land claims in the State of California" (9 Stat. 631) provides,
that,
"For all claims finally confirmed, . . . a patent shall issue to
the claimant upon his presenting to the General Land Office an
authentic copy of such confirmation and a plat of the survey,"
&c. By sec. 8 of the "act for the establishment of a general
land office in the Department of the Treasury," 2
id. 717,
it is enacted that
"All patents issuing from the said office shall be issued in the
name of the United States and under the seal of said office and be
signed by the President of the United States and countersigned by
the commissioner of said office, and shall be recorded in said
office in books to be kept for the purpose."
Thus the patent executed in the prescribed form which issues
from the General Land Office is made the instrument of passing
title out of the United States. The record of this patent is
evidence of the grant, but not the grant itself. It is evidence of
equal dignity with the patent, because, like the patent, it shows
that a patent containing the grant has been issued.
The record called for by the act of Congress is made by copying
the patent to be issued into the book kept for that purpose. The
effect of the record, therefore, is to show that an instrument such
as is there copied has actually been prepared for issue from the
General Land Office. If the instrument as recorded is sufficient on
its face to pass the title, it is to be presumed that the grant has
actually been made; but if it is not sufficient, no such
presumption arises. In short, the record, for the purposes of
evidence, stands in the same position and has the same effect as
the instrument of which it purports to be a copy. The same defenses
can be made against the record as could be made against the
instrument recorded. The public records of the executive
departments of the government are not, like those kept pursuant to
ordinary registration laws, intended for notice, but for
preservation of the evidence of the transactions of the
department.
This brings us to inquire whether this record shows upon its
face the execution of a patent sufficient in law to transfer the
title of the premises in controversy from the United States.
Page 96 U. S. 320
And here it may not be improper to note that although the case
shows that in July, 1870, before this suit was commenced, the
Commissioner of the General Land Office and the recorder caused to
be entered upon the face of the record, over their official
signatures, a statement to the effect that the instrument in
question was never in fact executed or delivered, McGarrahan rests
his whole case upon the record and the evidence it furnishes. This
he has the undoubted right to do, but if he does, he must stand or
fall by what it proves. It is his own fault if, having a valid
patent in his possession, he fails to produce it.
By the first section of the "Act to reorganize the General Land
Office," 5 Stat. 107, it was provided that the executive duties
relating
"to private claims of land and the issuing of patents for all
grants of land under the authority of the government of the United
States shall be subject to the supervision and control of the
Commissioner of the General Land Office, under the direction of the
President of the United States,"
and by the fourth section,
"That there shall be appointed by the President, by and with the
consent of the Senate, a Recorder of the General Land Office, whose
duty it shall be, in pursuance of instructions from the
Commissioner, to certify and affix the seal of the General Land
Office to all patents for public lands, and he shall attend to the
correct engrossing and recording and transmission of such patents.
He shall prepare alphabetical indexes of the names of patentees and
of persons entitled to patents. . . ."
By the sixth section, it was further provided that
"It shall be lawful for the President of the United States, by
and with the advice and consent of the Senate, to appoint a
secretary, . . . whose duty it shall be, under the direction of the
President, to sign, in his name and for him, all patents for lands
sold or granted under the authority of the United States."
By the second section of the Act of March 3, 1841,
id.,
416, the duty of countersigning patents was transferred from the
commissioner of the General Land Office to the recorder. Thus it
appears that a patent for lands must be signed in the name of the
President either by himself or by his duly appointed secretary,
sealed with the seal of the General Land Office, and countersigned
by the recorder. Until all these things have been done, the United
States has not
Page 96 U. S. 321
executed a patent for a grant of lands. Each and every one of
the integral parts of the execution is essential to the perfection
of the patent. They are of equal importance under the law, and one
cannot be dispensed with more than another. Neither is directory,
but all are mandatory. The question is not what, in the absence of
statutory regulations, would constitute a valid grant, but what the
statute requires. Not what other statutes may prescribe, but what
this does. Neither the signing nor the sealing nor the
countersigning can be omitted, any more than the signing or the
sealing or the acknowledgment by a grantor, or the attestation by
witnesses, when by statute such forms are prescribed for the due
execution of deeds by private parties for the conveyance of lands.
It has never been doubted that in such cases the omission of any of
the statutory requirements invalidates the deed. The legal title to
lands cannot be conveyed except in the form provided by law.
But if either of the requisites to the due execution of a patent
may be considered as directory, the countersigning by the recorder
should not be permitted to occupy that position. The President may
sign by his secretary, but the recorder must sign himself. He
countersigns -- that is to say, signs opposite to and after -- the
President, by way of authentication. Being specially charged with
the duty of attending to the issue of patents, it is peculiarly
appropriate that his attestation should be the last act to be
performed in the perfection of the instrument, and that he should
do it personally.
The record in this case shows an instrument in the form of a
patent, signed in the name of the President and sealed. The place
for the signature of the acting recorder is left blank. The name of
the President is signed by his secretary. The claim which is made
that Stoddard, the secretary, also countersigned as acting recorder
is not sustained by the evidence. His signature appears only as
secretary, and there is nothing whatever to indicate that he
attempted to act as recorder. Besides, the law provides, 5 Stat.
111, sec. 8,
"That whenever the office of recorder shall become vacant, or in
case of the sickness or absence of the recorder, the duties of his
office shall be performed ad interim by the principal clerk on
private land claims."
It certainly is not to be presumed that the same person will
hold
Page 96 U. S. 322
at the same time the offices of secretary to the President for
signing patents and of principal clerk on private land claims. And
if it were, his signature as secretary will not be treated as his
signature as recorder
ad interim or acting recorder. He
must sign both as secretary and as recorder.
The case is therefore one in which the record shows upon its
face an instrument prepared for a patent but not countersigned by
the recorder. If a patent thus defectively executed had itself been
introduced in evidence, it would not have shown a grant actually
perfected. But it is said that the record of the paper is evidence
of the fact that the recorder recognized its completeness, and is
equivalent to its countersignature. The law is not satisfied with
the simple recognition of the validity of a patent by an officer of
the government. To be valid, a patent must be actually executed.
Before it can operate as a grant, the last formalities of the law
prescribed for its execution must be complied with. No provision is
made for an equivalent of these formalities. Even an actual
delivery of the patent by the recorder in person would not supply
the place of his countersignature, any more than the delivery of a
paper by a private person without being signed would make it his
deed. But the record of a patent would not be necessarily as much a
recognition of its validity as a personal delivery by the recorder,
because he only attends to the recording, and is not required to do
it in person. The only way in which he can lawfully and effectually
recognize the validity of a patent is by personally countersigning
it.
Again it is said that the Act of March 3, 1843, 5 Stat. 627,
remedies the defect because it provides
"That literal exemplifications of any such records which may
have been or may be granted in virtue of the provisions of the
seventh section of the act . . . entitled 'An Act to reorganize the
General Land Office' shall be deemed and held to be of the same
validity in all proceedings, whether at law or in equity, wherein
such exemplifications are adduced in evidence, as if the names of
the officers signing and countersigning the same had been fully
inserted in such record."
This act does not, however, dispense with the signing and
countersigning. The record, to prove a valid patent, must still
show that these provisions of the law were complied with. The
Page 96 U. S. 323
names need not be fully inserted in the record, but it must
appear in some form that the names were actually signed to the
patent when it issued. If they are partially inserted in the
record, it will be presumed that they fully appeared in the patent;
but no such presumption will be raised if no signature is shown by
the record. Here, no signature does appear, and consequently none
will be presumed.
The failure to record the patent does not defeat the grant. It
only takes from the party one of the means of making his proof. If
he can produce the patent itself, and that is executed with all the
formalities required by the law, he can still maintain his rights
under it. He is not, therefore, necessarily deprived of his title
because of a defective record. He is in no worse condition with the
signatures omitted than he would have been if the description of
his land had been erroneously copied or other mistakes had been
made which rendered the record useless for the purposes of
evidence. A perfect record of a perfect patent proves the grant;
but a perfect record of an imperfect patent, or an imperfect record
of a perfect patent, has no such effect. In such a case, if a
perfect patent has in fact issued, it must be proved in some other
way than by the record. It is undoubtedly true that when a right to
a patent is complete and the last formalities of the law in respect
to its execution and issue have been complied with by the officers
of the government charged with that duty, the record will be
treated as presumptive evidence of its delivery to and acceptance
by the grantee. But until the patent is complete, it cannot
properly be recorded, and consequently an incomplete record raises
no such presumption.
Again it is said that the record of an instrument which the law
requires to be recorded is prima facie evidence of the validity of
the instrument. That is undoubtedly true if the instrument recorded
is apparently valid. The presumption arising from the record is
that whatever appears to have been done actually was done. If the
record shows a perfect instrument, the presumption is in favor of
its validity; but if it shows an imperfect instrument, a
corresponding presumption follows. Here the instrument recorded
appears to have been incomplete, and consequently it must be
presumed to be invalid. This presumption
Page 96 U. S. 324
will continue until overcome by proof that the instrument as
executed and delivered was valid.
We are of the opinion that because this record does not show a
patent countersigned by the recorder, it is not sufficient to prove
title in the party under whom McGarrahan claims. This makes it
unnecessary to consider any of the other questions which have been
argued, and the judgment is
Affirmed.
MR. JUSTICE FIELD and MR. JUSTICE HARLAN took no part in the
decision of this cause.