1. A patent for public land, when issued by the Land Department,
acting within the scope of its authority, and delivered to and
accepted by the grantee, passes the legal title to the land. All
control of the Executive Department of the government over the
title thereafter ceases.
2. If there be any lawful reason why the patent should be
cancelled or rescinded, the appropriate remedy is by a bill in
chancery, brought by the United States, but no executive officer is
authorized to reconsider the facts on which it was issued and to
recall or rescind it or to issue one to another party for the same
tract.
3. But when fraud or mistake or misconstruction of the law of
the case exists, the United States, or any contesting claimant for
the land, may have relief in a court of equity.
4. Under sec. l4 of the Act of 1841, 5 Stat. 457, and the Act of
March 3, 1853, 10
id. 244, no preemption claim was of any
avail against a purchaser of the land at the public sales ordered
by the proclamation of the President unless, before they commenced,
the claimant had proved up his settlement and paid for the
land.
5. The decision of the Secretary of the Interior against a
purchaser at the public sales in favor of a preemption claimant who
had failed to make the required proof and payment was erroneous as
a misconception of the law, and the equitable title should be
decreed to belong to the purchaser
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This case is brought before us by a writ of error to the Supreme
Court of the State of Illinois.
In its inception, it was a bill in the Circuit Court for De Witt
County to foreclose a mortgage given by Thomas I. Bunn to his
brother Lewis Bunn, on the south half of the southeast quarter and
the south half of the southwest quarter of section 27, township 19,
range 3 east, in said county. In the progress of the case, the bill
was amended so as to allege that C. H. Moore and David Davis set up
some claim to the land; and they were made defendants, and
answered.
Moore said that he was the rightful owner of forty acres of the
land mentioned in the bill and mortgage, to-wit, the southwest
Page 96 U. S. 531
quarter of the southwest quarter of said section, and had the
patent of the United States giving him the title to it.
Davis answered that he was the rightful owner of the southeast
quarter of said southwest quarter of section 27. He alleges that
John P. Mitchell bought the land at the public sale of lands
ordered by the President for that district, and paid for it, and
had the receipt of the register and receiver, and that it was
afterwards sold under a valid judgment and execution against
Mitchell, and the title of said Mitchell came by due course of
conveyance to him, said Davis.
It will thus be seen that while Moore and Davis each assert
title to a different forty acres of the land covered by Bunn's
mortgage to his brother, neither of them claim under or in privity
with Bunn's title, but adversely to it.
But as both parties assert a right to the land under purchases
from the United States, and since their rights depend upon the laws
of the United States concerning the sale of its public lands, there
is a question of which this Court must take cognizance.
As regards Moore's branch of the case, it seems to us free from
difficulty.
The evidence shows that the forty acres which he claims was
struck off to him at a cent or two over $2.50 per acre, at a public
land sale, by the officers of the land district at Danville, Ill.,
Nov. 15, 1855; that his right to it was contested before the
register and receiver by Bunn, who set up a prior preemption right.
Those officers decided in favor of Bunn, whereupon Moore appealed
to the Commissioner of the General Land Office, who reversed the
decision of the register and receiver, and on this decision a
patent for the land was issued to Moore, who has it now in his
possession.
Sometime after this patent was delivered to Moore, Bunn appealed
from the decision of the Commissioner to the Secretary of the
Interior, who reversed the Commissioner's decision and confirmed
that of the register and receiver and directed the patent to Moore
to be recalled and one to issue to Bunn. But Moore refused to
return his patent, and the Land Department did not venture to issue
another for the same land, and so there is no question but that
Moore is vested now with the legal title
Page 96 U. S. 532
to the land, and was long before this suit was commenced. Nor is
there, in looking at the testimony taken before the register and
receiver and that taken in the present suit, any just foundation
for Bunn's preemption claim. We will consider this point more fully
when we come to the Davis branch of the case.
Taking this for granted, it follows that Moore, who has the
legal title, is in a suit in chancery decreed to give it up in
favor of one who has neither a legal nor an equitable title to the
land.
The Supreme Court of Illinois, before whom it was not pretended
that Bunn had proved his right to a preemption, in their opinion in
this case place the decree by which they held Bunn's title
paramount to that of Moore on the ground that to the officers of
the Land Department, including the Secretary of the Interior, the
acts of Congress had confided the determination of this class of
cases, and the decision of the Secretary in favor of Bunn, being
the latest and the final authoritative decision of the tribunal
having jurisdiction of the contest, the courts are bound by it, and
must give effect to it.
Robbins v. Bunn, 54 Ill. 48.
Without now inquiring into the nature and extent of the doctrine
referred to by the Illinois court, it is very clear to us that it
has no application to Moore's case. While conceding for the
present, to the fullest extent, that when there is a question of
contested right between private parties to receive from the United
States a patent for any part of the public land, it belongs to the
head of the Land Department to decide that question, it is equally
clear that when the patent has been awarded to one of the
contestants and has been issued, delivered, and accepted, all right
to control the title or to decide on the right to the title has
passed from the land office. Not only has it passed from the land
office, but it has passed from the Executive Department of the
government. A moment's consideration will show that this must, in
the nature of things, be so. We are speaking now of a case in which
the officers of the department have acted within the scope of their
authority. The offices of register and receiver and Commissioner
are created mainly for the purpose of supervising the sales of the
public
Page 96 U. S. 533
lands, and it is a part of their daily business to decide when a
party has by purchase, by preemption, or by any other recognized
mode established a right to receive from the government a title to
any part of the public domain. This decision is subject to an
appeal to the Secretary, if taken in time. But if no such appeal be
taken, and the patent issued under the seal of the United States,
and signed by the President, is delivered to and accepted by the
party, the title of the government passes with this delivery. With
the title passes away all authority or control of the Executive
Department over the land and over the title which it has conveyed.
It would be as reasonable to hold that any private owner of land
who has conveyed it to another can, of his own volition, recall,
cancel, or annul the instrument which he has made and delivered. If
fraud, mistake, error, or wrong has been done, the courts of
justice present the only remedy. These courts are as open to the
United States to sue for the cancellation of the deed or
reconveyance of the land as to individuals, and if the government
is the party injured, this is the proper course.
"A patent," says the Court in
United
States v. Stone, 2 Wall. 525,
"is the highest evidence of title and is conclusive against the
government and all claiming under junior patents or titles until it
is set aside or annulled by some judicial tribunal. In England,
this was originally done by
scire facias, but a bill in
chancery is found a more convenient remedy."
See also Hughes v. United
States, 4 Wall. 232;
S.C. 52 U. S. 11 How.
552.
If an individual setting up claim to the land has been injured,
he may, under circumstances presently to be considered, have his
remedy against the party who has wrongfully obtained the title
which should have gone to him.
But in all this there is no place for the further control of the
Executive Department over the title. The functions of that
department necessarily cease when the title has passed from the
government. And the title does so pass in every instance where,
under the decisions of the officers having authority in the matter,
a conveyance, generally called a patent, has been signed by the
President and sealed and delivered to and accepted by the grantee.
It is a matter of course that after this is done, neither the
Secretary nor any other executive officer
Page 96 U. S. 534
can entertain an appeal. He is absolutely without authority. If
this were not so, the titles derived from the United States,
instead of being the safe and assured evidence of ownership which
they are generally supposed to be, would be always subject to the
fluctuating, and in many cases unreliable, action of the land
office. No man could buy of the grantee with safety, because he
could only convey subject to the right of the officers of the
government to annul his title.
If such a power exists, when does it cease? There is no statute
of limitations against the government, and if this right to
reconsider and annul a patent after it has once become perfect
exists in the Executive Department, it can be exercised at any
time, however remote. It is needless to pursue the subject further.
The existence of any such power in the Land Department is utterly
inconsistent with the universal principle on which the right of
private property is founded.
The order of the Secretary of the Interior, therefore, in
Moore's case, was made without authority and is utterly void, and
he has a title perfect both at law and in equity.
The question presented by the forty acres claimed by Davis is a
very different one. Here, although the government has twice sold
the land to different persons and received the money, it has issued
no patent to either, and the legal title remains in the United
States. It is not denied, however, that to one or the other of the
parties now before the Court this title equitably belongs, and it
is the purpose of the present suit to decide that question.
The evidence shows that on the same day that Moore bought at the
public land sale the forty acres we have just been considering,
Mitchell bought in like manner the forty acres now claimed by
Davis, to-wit, Nov. 15, 1855. He paid the sum at which it was
struck off to him at public outcry, and received the usual
certificate of purchase from the register and receiver. On the
twentieth day of February, 1856, more than three months after
Mitchell's purchase, Thomas I. Bunn appeared before the same
register and receiver and asserted a right, by reason of a
preemption commenced on the eighth day of November, 1855, to pay
for the south half of the southwest quarter and the south half of
the southeast quarter of section 27, which includes both the land
of Moore and Davis in controversy in
Page 96 U. S. 535
this suit, and to receive their certificates of purchase. They
accepted his money and granted his certificate. A contest between
Bunn, on the one side, and Moore and Mitchell, on the other, as to
whether Bunn had made the necessary settlement was decided by those
officers in favor of Bunn, and on appeal, as we have already shown,
to the Commissioner, this was reversed, and finally the Secretary
of the Interior, reversing the Commissioner, decided in favor of
Bunn. But no patent was issued to Mitchell after the Commissioner's
decision, as there was to Moore, and the Secretary therefore had
the authority undoubtedly to decide finally for the Land Department
who was entitled to the patent. And though no patent has been
issued, that decision remains the authoritative judgment of the
department as to who has the equitable right to the land.
The Supreme Court of Illinois, in their opinion in this case,
come to the conclusion that this final decision of the Secretary is
not only conclusive on the department, but that it also excludes
all inquiry by courts of justice into the right of the matter
between the parties.
The whole question, however, has been since that time very fully
reviewed and considered by this Court in
Johnson v.
Towsley, 13 Wall. 72. The doctrine announced in
that case, and repeated in several cases since, is this:
That the decision of the officers of the Land Department, made
within the scope of their authority on questions of this kind, is
in general conclusive everywhere, except when reconsidered by way
of appeal within that department, and that as to the facts on which
their decision is based, in the absence of fraud or mistake, that
decision is conclusive even in courts of justice, when the title
afterwards comes in question. But that in this class of cases, as
in all others, there exists in the courts of equity the
jurisdiction to correct mistakes, to relieve against frauds and
impositions, and in cases where it is clear that those officers
have, by a mistake of the law, given to one man the land which on
the undisputed facts belonged to another, to give appropriate
relief.
In the recent case of
Shepley v. Cowan, 91 U.
S. 340, the doctrine is thus aptly stated by MR. JUSTICE
FIELD:
"The officers of the Land Department are specially
designated
Page 96 U. S. 536
by law to receive, consider, and pass upon proofs presented with
respect to settlements upon the public lands with a view to secure
rights of preemption. If they err in the construction of the law
applicable to any case, or if fraud is practiced upon them or they
themselves are chargeable with fraudulent practices, their rulings
may be reviewed and annulled by the courts when a controversy
arises between private parties founded upon their decisions, but
for mere errors of judgment upon the weight of evidence in a
contested case before them, the only remedy is by appeal from one
officer to another of the department."
Applying to the case before us these principles, which are so
well established and so well understood in this Court as to need no
further argument, we are of opinion, if we take as proved the
sufficiency of the occupation and improvement of Bunn as of the
date which he alleged, his claim is fatally defective in another
respect in which the officers of the Land Department were mistaken
as to the law which governed the rights of the parties, or entirely
overlooked it.
In the recent case of
Atherton v. Fowler, supra, p.
96 U. S. 513, we
had occasion to review the general policy and course of the
government in disposing of the public lands, and we stated that it
had formerly been, if it is not now, a rule of primary importance
to secure to the government the highest price which the land would
bring by offering it publicly at competitive sales, before a right
to any part of it could be established by private sale or by
preemption. In the enforcement of this policy, the Act of Sept. 14,
1841, which for the first time established the general principle of
preemption and which has remained the basis of that right to this
day, while it allowed persons to make settlements on the public
lands as soon as the surveys were completed and filed in the local
offices, affixed to such a settlement two conditions as affecting
the right to a preemption. One of these was that the settler should
give notice to the land office of the district, within thirty days
after settlement, of his intention to exercise the right of
preemption, and the other we will give in the language of the
fourteenth section of that act:
"This act shall not delay the sale of any of the public lands of
the United States beyond the time which has been or may be
appointed by the proclamation of the President, nor shall any of
the provisions
Page 96 U. S. 537
of this act be available to any person who shall fail to make
the proof of payment and file the affidavit required, before the
commencement of the sale aforesaid."
5 Stat. 457.
There can be no misconstruction of this provision, nor any doubt
that it was the intention of Congress that none of the liberal
provisions of that act should stand in the way of a sale at auction
of any of the public lands of a given district where the purchase
had not been completed by the payment of the price before the
commencement of the sales ordered by the President's proclamation.
We do not decide, because we have not found it necessary to do so,
whether this provision is applicable under all the preemption laws
passed since the act of 1841, though part of it is found in the
Revised Statutes, sec. 2282, as part of the existing law. But we
have so far examined all those laws enacted prior to November,
1855, the date of Mitchell's purchase, as to feel sure it was in
full operation at that time. The Act of March 3, 1853, extending
the right of preemption to the alternate sections, which the
government policy reserved in its numerous grants to railroads and
other works of internal improvement, required the preemptor to pay
for them at $2.50 per acre before they should be offered for sale
at public auction. 10 Stat. 244. This was only two years and a half
before these lands were sold to Mitchell, and they were parts of an
alternate section reserved in a railroad grant. That statute, in
its terms, was limited to persons who had already settled on such
alternate sections, and it may be doubted whether any right of
preemption by a settlement made afterwards existed under the law.
But it is unnecessary to decide that point, as it is beyond dispute
that it required in any event that the money should be paid before
the land was offered for sale at public auction.
The record of this case shows that while Bunn's preemption claim
comes directly within the provision of both statutes, they were
utterly disregarded in the decision of the Secretary of the
Interior, on which alone his case has any foundation.
We have no evidence in this record at what time the President's
proclamation was issued, or when the sales under it began at which
Mitchell purchased. These proclamations are not published in the
statutes as public laws, and this one is not
Page 96 U. S. 538
mentioned in the record. But we know that the public lands are
never offered at public auction until after a proclamation fixing
the day when and the place where the sales begin. The record shows
that both Moore and Mitchell bought and paid for the respective
forty-acre pieces now in contest at public auction. That they were
struck off to them a few cents in price above the minimum of $2.50,
below which these alternate sections could not be sold, and that
this was on the fifteenth day of November, 1855. These public sales
were going on then on that day, and how much longer is not known,
but it might have been a week, or two weeks, as these sales often
continue open longer than that.
Bunn states in his application, made three months after this,
that his settlement began on the 8th of November, 1855. It is not
apparent from this record that he ever gave the notice of his
intention to preempt the land by filing what is called a
declaration of that intention in the record accompanying the copy
of such a declaration in the record accompanying the affidavit of
settlement, cultivation, and qualification required of a preemptor,
which last paper was made and sworn to Feb. 20, 1856, when he
proved up his claim, and paid for and received his certificate.
There is nothing to show when the declaration of intention was
filed in the office.
Waiving this, however, which is a little obscure in the record,
it is very clear that Bunn "failed to make proof of payment, and
failed to file the affidavit of settlement required, before the
commencement of the sale" at which Mitchell bought. The statute
declares that none of the provisions of the act shall be available
to any person who fails to do this. The affidavit and payment of
Bunn were made three months after the land sales had commenced, and
after these lands had been sold.
The section also declares that the act shall not delay the sale
of any public land beyond the time which has been or may be
appointed by the proclamation of the President. To refuse
Mitchell's bid on account of any supposed settlement, even if it
had been brought to the attention of the officers, would have been
to delay the sale beyond the time appointed, and would therefore
have been in violation of the very statute under which Bunn asserts
his right.
Page 96 U. S. 539
Whatever Bunn may have done on the 8th of November and up to the
15th of that month in the way of occupation, settlement,
improvement, and even notice, could not withdraw the land from sale
at public auction unless he had also paid or offered to pay the
price before the sale commenced.
It seems quite probable that such attempt at settlement as he
did make was made while the land sales were going on, or a few days
before they began, with the purpose of preventing the sale, in
ignorance of the provision of the statute which made such attempt
ineffectual.
At all events, we are entirely satisfied that the lands in
controversy were subject to sale at public auction at the time
Moore and Mitchell bid for and bought them; that the sale so made
was by law a valid one, vesting in them the equitable title, with
right to receive the patents; and that the subsequent proceedings
of Bunn to enter the land as a preemptor were unlawful and
void.
It was the duty of the court in Illinois, sitting as a court of
equity, to have declared that the mortgage made by Bunn, so far as
these lands are concerned, created no lien on them because he had
no right, legal or equitable, to them.
The decree of the Supreme Court of that state must be reversed
and the cause remanded to that court for further proceedings in
accordance with this opinion, and it is
So ordered.