"
I
n the Supreme Court of the District of Columbia, this"
"
fourteenth day of November, 1879"
"THE UNITED STATES
ex relatione"
"THOMAS MCBRIDE"
"
vs. At law. No. 21,200"
"CARL SCHURZ, Secretary of the"
"Department of the Interior"
"Be it remembered that on the hearing of this cause before the
Supreme Court of the District of Columbia, sitting in general term,
on the twenty-eighth day of October, 1879, it was conceded by both
parties that all the allegations of the original petition were
true, except the one that the premises named in the petition were
in 1862 subject to preemption filing or homestead entry."
"It was also conceded that the case relating to said premises,
set out in the answer of respondent, had been appealed from the
decision of the Commissioner of the General Land Office to the
Secretary of the Interior, and was pending before the said
Secretary at the time the demand for said patent was made on him,
as set forth in the said original petition of relator, and for some
days thereafter, and that at the time of said demand and for some
days thereafter, the said patent was, with the papers in said case,
as an exhibit in said case, in the office of the Secretary of the
Interior, and was not in the office of the Commissioner of the
General Land Office."
"It was also conceded that the incorporated Town of Grantsville,
set forth in the answer of the respondent, was in fact the
incorporated City of Grantsville, and that it was incorporated by
the Territorial Legislature of Utah on the twelfth day of January,
1876, and that said act should be treated as referred to and made a
part of this case."
"All other matters in said case stood upon the original and
supplemental petition, the answer of respondent, and the
replication thereto. There was no other or further proof or
evidence offered by either party."
"One of the rules of this Court is as follows: "
Page 102 U. S. 382
"33. The joinder in issue may be --"
" The plaintiff joins issue upon the defendant's first
plea."
" The defendant joins issue upon the plaintiff's replication to
the first plea."
"And this form of joinder shall be deemed to be a denial of the
substance of the pleading to which it relates, and an issue
thereon."
"And thereupon the said court, upon the tenth day of November,
1879, upon the evidence and pleading aforesaid, gave judgment for
the said respondent."
"The foregoing facts are stipulated to be a full and true
statement of this case, and made part of the record therein."
"Nov. 14, 1879."
"W. H. SMITH"
"
Att'y for Plff."
"U. J. BAXTER"
"
Of Counsel for Respondent"
"Whereupon the court orders the said stipulation to be made of
record in the case."
Instead of an alternative writ of mandamus, a rule upon the
Secretary to show cause was granted by the court. The case was
heard upon the pleadings and the above agreed statement, and the
rule discharged.
Thereupon the United States on the relation of McBride sued out
this writ, and assigns for error that the court below erred in
refusing to issue a mandamus in conformity to the prayer of the
petition.
Page 102 U. S. 392
MR. JUSTICE MILLER, after stating the case, delivered the
opinion of the Court.
Some question was made, on the argument in this Court, as to the
effect of the answer as evidence, and the practice in the Court of
King's Bench, in England, had been referred to as making the return
to the writ conclusive, or at least evidence, of all it states. We
are relieved of any difficulty on this point by the stipulation of
the parties.
No writ of mandamus, alternative or otherwise, was issued. There
was therefore no technical return, and in strictness the rule
applicable to such a writ does not apply. If, however, it could be
held that the answer to the rule to show cause stands in the place
of a return to a writ of mandamus, the parties have voluntarily
made their own issues, and stipulated as to the evidence which
shall be considered by the court.
By this stipulation the allegations of the original petition,
except one which is specified, are to be taken as true. Certain
other facts are then set out. It is then added that all other
matters stand upon the original and supplemental petitions, the
answer, and replication, and that there was no other or further
proof offered by either party. As the replication distinctly put in
issue every paragraph of the answer, as no evidence was offered in
support of the answer, and as the rule of the court is
Page 102 U. S. 393
recited which makes the replication in this case a denial of the
substance of the pleading to which it relates, we must exclude the
supplemental petition and the answer of the respondent as evidence,
and decide the case on the allegations of the original petition and
the facts stipulated in the agreed case.
We are met at the threshold of this inquiry by a denial of the
authority of the Supreme Court of the District of Columbia to issue
a writ of mandamus, as an original process.
The argument is that the jurisdiction of that court over this
class of subjects is governed by sec. 760 of the Revised Statutes
relating to the District of Columbia. That section enacts that "The
Supreme Court shall possess the same power and exercise the same
jurisdiction as the circuit courts of the United States." As this
Court decided in
McIntire v.
Wood, 7 Cranch 504, and
McClung v.
Silliman, 6 Wheat. 598, that the circuit courts of
the United States possessed no such power, the argument would be
perfect if no other powers on that subject existed in the Supreme
Court of the District than what is conferred by the above
section.
This court, in
Kendall v. United
States, 12 Pet. 524, had under consideration the
Act of Feb. 27, 1801, organizing originally the courts of this
District. It was held that the clause of the act declaring the laws
of Maryland to be in force at that date in the part of the District
ceded by her invested the circuit court, as it was then called,
with this very power, because it was a common law jurisdiction, and
the common law on that subject was then in force in Maryland. This
proposition has been repeatedly upheld by the court since that
time, and up to the date of the revision it was no longer an open
question that in a proper case the court had authority to issue the
writ.
It is now said, however, that this section being enacted as of
the first day of December, 1873, defines the jurisdiction of the
Supreme Court of the District as governed by the powers of the
circuit courts of the United States over the same subject at that
date, at which time it is clear these latter courts had no such
power, and that, as the revision repealed all other laws on the
same subject, the act concerning the law of Maryland no longer
applied to the case.
Page 102 U. S. 394
This leaves out of the process of reasoning the ninety second
section of the revision, which declares again that
"The laws of the State of Maryland not inconsistent with this
title as the same existed on the twenty seventh day of July, 1801,
except as since modified or repealed by Congress or by authority
thereof or until so modified or repealed, continue in force within
the District."
Thus, the argument is precisely the same as it was in
Kendall v. United States, for it was urged there, as here,
that as the act creating the court measured its jurisdiction by
that of the circuit courts of the United States, which had no such
jurisdiction, there could be none in the former; to which the court
replied, the provision which continued in force the laws of
Maryland.
The revision has merely separated the different sections of the
Act of Feb. 27, 1801, and placed part of it in sec. 760 and part of
it in sec. 92. Neither provision is repealed, and we think that
both of them are retained, with the construction placed on them by
this Court in
Kendall v. United States and the subsequent
cases. But this question would seem to be set at rest by the act of
1877, "to perfect the revision of the Statutes of the United
States, and of the statutes relating to the District of Columbia."
The act amends sec. 763 of the Revised Statutes, relating to the
District of Columbia, by enacting that
"Said courts shall have cognizance of all crimes and offenses
committed within said District, and of all cases in law and equity
between parties, both or either of which shall be resident or be
found within said District, and also of all actions or suits of a
civil nature at common law or in equity, in which the United States
shall be plaintiffs or complaints."
19 Stat. 253.
We are of opinion that the authority to issue writs of mandamus
in cases in which the parties are by the common law entitled to
them is vested in the Supreme Court of the District of
Columbia.
We proceed to inquire whether the relator has made such a
case.
If the relator was entitled to the possession of the patent as
his property, and it was the plain duty of the Secretary to deliver
it to when demanded, then, under all the authorities,
Page 102 U. S. 395
and especially the decisions of this Court, he is entitled to
the remedy he asks. From the case of
Marbury v.
Madison, 1 Cranch 137, down to the present time,
such has been the settled doctrine of this Court. And though it may
be said that the opinion of Mr. Chief Justice Marshall in that case
was not necessary to the decision made, which was that this Court
had no original jurisdiction in that case, the principles of the
opinion have since been repeatedly recognized and acted upon in
this Court and the case cited with approval in its definition of
the circumstances under which persons holding public offices will
be compelled to perform certain duties which are merely
ministerial.
Kendall v. United
States, 12 Pet. 524;
Decatur v.
Paulding, 14 Pet.. 497;
Kendall v.
Stokes et al., 3 How. 87;
Commissioner of Patents v.
Whiteley, 4 Wall. 522.
The next objection to issuing the writ which we are called to
consider is that the Secretary, in deciding whether he would
deliver the patent to McBride or not, was called upon to exercise a
judgment and discretion on the case presented to him which were not
merely ministerial, but which were rather judicial in their
character, and in regard to which many matters were to be
considered -- such as the validity of the title conferred by the
patent, the circumstances under which it was signed, sealed, and
recorded, and the conflicting rights of other parties to the lands
covered by it. In short, that this execution of the patent
concluded nothing, and the authority of the Secretary and the
Commissioner of the General Land Office to deal with the whole
subject, including the relator's right to the lands, remained
unaffected by the patent. Whether this be so or not must depend
upon the authority conferred by Congress upon those officers, and
the effect of the patent in the stage which it had reached when the
demand for its possession was made by McBride.
The Constitution of the United States declares that Congress
shall have power to dispose of and make all needful rules and
regulations respecting the territory and other property belonging
to the United States. Under this provision, the sale of the public
lands was placed by statute under the control of the Secretary of
the Interior. To aid him in the performance of this duty, a bureau
was created, at the head of which
Page 102 U. S. 396
is the Commissioner of the General Land Office, with many
subordinates. To them, as a special tribunal, Congress confided the
execution of the laws which regulate the surveying, the selling,
and the general care of these lands.
Congress has also enacted a system of laws by which rights to
these lands may be acquired, and the title of the government
conveyed to the citizen. This Court has with a strong hand upheld
the doctrine that so long as the legal title to these lands
remained in the United States and the proceedings for acquiring it
were as yet
in fieri, the courts would not interfere to
control the exercise of the power thus vested in that tribunal. To
that doctrine we still adhere.
But we have also held that when, by the action of these officers
and of the President of the United States in issuing a patent to a
citizen, the title to the lands has passed from the government, the
question as to the real ownership of them is open in the proper
courts to all the considerations appropriate to the case. And this
is so whether the suit is by the United States to set aside the
patent and recover back the title so conveyed, as in
United States v.
Stone, 2 Wall. 525, or by an individual to cause
the title conveyed by the patent to be held in trust for him by the
patentee on account of equitable circumstances which entitle the
complainant to such relief.
Johnson v.
Towsley, 13 id. 72, and other cases.
In the case before us, it is said that the instrument called a
patent, which purports in the name of the United States to convey
to McBride the lands in controversy, is not effectual for that
purpose for want of delivery. That though signed, sealed,
countersigned, and recorded, and then sent to the register of the
land office at Salt Lake City for delivery to him, it never was so
delivered, and has always remained under the control of the
officers of the Land Department, and that the instrument is invalid
as a deed of conveyance for want of delivery to the grantee. If it
were conceded that delivery of the patent is essential to the
transfer of title to the grantee, and that such delivery is
required as is necessary in a conveyance from man to man, it would
be a question of some difficulty to decide whether such delivery
took place in this case. The well known principle by which the
intention of the grantor in
Page 102 U. S. 397
a deed to make an act which falls far short of manual delivery,
to stand for delivery, when so designed, might well be applied to
the act of the Commissioner in transmitting the patent by mail to
the local office for the purpose of delivery, while on the other
hand it is argued with much force that the instrument never
actually passed from the land office or the control of its
officers. We do not think the decision of this point necessary to
the case before us.
We are of opinion that when, upon the decision of the proper
office that the citizen has become entitled to a patent for a
portion of the public lands, such a patent made out in that office
is signed by the President, sealed with the seal of the General
Land Office, countersigned by the recorder of the land office, and
duly recorded in the record book kept for that purpose, it becomes
a solemn public act of the government of the United States, and
needs no further delivery or other authentication to make it
perfect and valid. In such case, the title to the land conveyed
passes by matter of record to the grantee, and the delivery which
is required when a deed is made by a private individual is not
necessary to give effect to the granting clause of the
instrument.
The authorities on this subject are numerous and uniform. They
have their origin in the decisions of the English courts upon the
grants of the crown evidenced by instruments called there, as here,
patents.
Blackstone describes four modes of alienation or transfer of
title to real estate, which he calls common assurance, the first of
which is by matter
in pais or deed; the second by matter
of record, or an assurance transacted only in the king's public
courts of record; the third by special custom; and the fourth by
devise in a last will or testament.
In the chapter devoted to alienation by deed, he enumerates
among the requisites to its validity the act of delivery. Book 2,
c. 20. But in chapter 21, devoted to alienation by matter of
record, nothing is said about delivery as necessary to pass the
title, and under this head he includes the King's grants. These, he
says, are all made matter of public record, and are contained in
charters or letters patent. He then recites the processes by which
patents are prepared and perfected, the
Page 102 U. S. 398
various officers through whose hands they pass, and the manner
of affixing the seal to them, and their final enrollment. They are
then perfect grants, and no mention is made of delivery as a
prerequisite to their validity. After this, they can only be
revoked or annulled by
scire facias or other judicial
proceeding. The importance attached to the delivery of the deed in
modern conveyancing arises largely from the fact that the deed has
taken the place of the ancient livery of seisin in feudal times,
when, in order to give effect to the enfeoffment of the new tenant,
the act of delivering possession in a public and notorious manner
was the essential evidence of the investiture of the title to the
land. This became gradually diminished in importance until the
manual delivery of a piece of the turf, and many other symbolical
acts, became sufficient. When all this passed away, and the
creation and transfer of estates in land by a written instrument,
called the act or deed of the party, became the usual mode, the
instrument was at first delivered on the land in lieu of livery of
seisin. Shepherd's Touchstone, 54; Co.Litt. 266
b;
Washburn, Real Property, book 3, 308. Finally, any delivery of the
deed, or any act which the party intended to stand for such
delivery, became effectual to pass the title.
Church v.
Gilman, 15 Wend. (N.Y.) 656;
Butler v. Baker, 3 Co.
25
b;
Warren v. Swelt, 31 N.H. 332;
Hatch v.
Hatch, 9 Mass. 307.
But in regard to the transfer of title by matter of record,
whether this record were a judgment or decree in a court of
justice, as fines and recoveries, or the record made in the proper
office (generally in the Court of Chancery by the Lord Chancellor)
of the King's grant, called enrollment, no livery of seisin was
necessary nor any delivery of the document sealed with the King's
seal, for when this seal was affixed to the instrument and the
enrollment of it was made, no higher evidence could be had, nor was
any other evidence necessary of this act or deed of the King.
Hence, Mr. Cruise, in his Digest of the English Law of Real
Property, says:
"The King's letters patent need no delivery, nor his patents
under the great seal of the Duchy of Lancaster, for they are
sufficiently authenticated and completed by the annexing of the
respective seals to them."
Title xxxiv. sec. 1, par. 3.
Page 102 U. S. 399
In
Marbury v. Madison, to which we have already
referred, the Court, likening the commission of the justice of the
peace, which was signed and sealed by the President and left in the
hands of the Secretary of State, to a patent for lands, uses this
language:
"By the act passed in 1796 authorizing the sale of lands above
the mouth of the Kentucky River (vol. iii. p. 229), the purchaser,
on paying his purchase money, becomes completely entitled to the
property purchased, and on producing to the Secretary of State the
receipt of the Treasurer, upon a certificate required by the law,
the President of the United States is authorized to grant him a
patent. It is further enacted that all patents shall be
countersigned by the Secretary of State and recorded in his office.
If the Secretary of State should choose to withhold this patent,
or, the patent being lost, should refuse a copy of it, can it be
imagined that the law furnishes to the injured party no remedy? It
is not believed that any person whatever would attempt to maintain
such a proposition."
In another part of the opinion it is said:
"In all cases of letters patent, certain solemnities are
required by law, which solemnities are the evidences of the
validity of the instrument. A formal delivery to the person is not
among them. In cases of commissions, the sign manual of the
President and the seal of the United States are those
solemnities."
The same principle is found in the opinion of the Court,
delivered by Mr. Justice Story, in
Green v.
Liter, 8 Cranch 229.
Many decisions of State courts of the highest character to the
same effect are cited in the brief of counsel for the relator in
this case, among which may be mentioned
Ex parte Kuhtman,
3 Rich. (S.C.) Ch. 257;
Donner v. Palmer, 31 Cal. 500. The
subject is very fully and ably discussed by Mr. Justice Field in
the case of
Leroy v. Jamison, 3 Sawyer 369.
It is also said that there was no acceptance of this patent by
the grantee, and for that reason it is ineffectual to convey title.
It is not necessary to enter into much discussion on this subject,
because the acceptance of a deed may be presumed under
circumstances far short of what was admitted to exist in this
case.
The doctrine on this point is well stated by Attorney
General
Page 102 U. S. 400
Crittenden, in the case of Pierre Mutelle, in 1841, as found in
3 Op.Att.Gen. 654, which was a case like the present, in regard to
the duty of the Secretary to deliver the patent then lying in the
office.
"My opinion," said he,
"is that the title to the land
did pass to Pierre Mutelle at
the date of the patent to him, though that patent still remains in
the land office without any actual tradition of it to anyone.
The patent was issued by authority and direction of law, and upon
general principles,
where the patentee does not expressly
dissent, his assent and acceptance are to be presumed from the
beneficial nature of the grant. But it is hardly necessary to
resort to such presumptions, because, in this and in all such
cases, the acts required to be done by the claimant, and actually
done by him in the preparation of his claim for patenting, are
equivalent to a positive demand of the patent and amount to an
acceptance of it. The patent, in the meaning of the act referred
to,
is granted to the patentee from its date, though he may
never actually see or receive it, and is valid and effectual
to pass the title to the land."
"All legal muniments of title belong to him who owns the land, .
. . but as the patent is a recorded evidence of title, always
accessible, no material prejudice can result to the true owner from
a stranger getting possession of it."
The long pursuit of this claim by McBride, his repeated demand
for the patent after it had been perfected, and his persistent
effort to obtain possession of it are ample proof of his acceptance
of the grant of which it is the evidence.
It is argued with much plausibility that the relator was not
entitled to the land by the laws of the United States because it
was not subject to homestead entry, and that the patent is
therefore void, and the law will not require the Secretary to do a
vain thing by delivering it, which may at the same time embarrass
the rights of others in regard to the same land.
We are not prepared to say that if the patent is absolutely
void, so that no right could possibly accrue to the plaintiff under
it, the suggestion would not be a sound one.
But the distinction between a void and a voidable instrument,
though sometimes a very nice one, is still a well recognized
distinction
Page 102 U. S. 401
on which valuable rights often depend. And the case before us is
one to which we think it is clearly applicable. To the officers of
the Land Department, among whom we include the Secretary of the
Interior, is confided, as we have already said, the administration
of the laws concerning the sale of the public domain. The land in
the present case had been surveyed, and, under their control, the
land in that District generally had been opened to preemption,
homestead entry, and sale. The question whether any particular
tract, belonging to the government, was open to sale, preemption,
or homestead right is in every instance a question of law as
applied to the facts for the determination of those officers. Their
decision of such question and of conflicting claims to the same
land by different parties is judicial in its character.
It is clear that the right and the duty of deciding all such
questions belong to those officers, and the statutes have provided
for original and appellate hearings in that department before the
successive officers of higher grade up to the Secretary. They have,
therefore, jurisdiction of such cases, and provision is made for
the correction of errors in the exercise of that jurisdiction. When
their decision of such a question is finally made and recorded in
the shape of the patent, how can it be said that the instrument is
absolutely void for such errors as these? If a patent should issue
for land in the State of Massachusetts, where the government never
had any, it would be absolutely void. If it should issue for land
once owned by the government, but long before sold and conveyed by
patent to another who held possession, it might be held void in a
court of law on the production of the senior patent. But such is
not the case before us. Here the question is whether this land had
been withdrawn from the control of the Land Department by certain
acts of other persons, which include it within the limits of an
incorporated town. The whole question is one of disputed law and
disputed facts. It was a question for the land officers to consider
and decide before they determined to issue McBride's patent. It was
within their jurisdiction to do so. If they decided erroneously,
the patent may be voidable, but not absolutely void.
The mode of avoiding it, if voidable, is not by arbitrarily
Page 102 U. S. 402
withholding it, but by judicial proceedings to set it aside or
correct it if only partly wrong. It was within the province of
those officers to sell the land and to decide to whom and for what
price it should be sold, and when, in accordance with their
decision, it was sold, the money paid for it, and the grant carried
into effect by a duly executed patent, that instrument carried with
it the title of the United States to the land.
From the very nature of the functions performed by these
officers, and from the fact that a transfer of the title from the
United States to another owner follows their favorable action, it
must result that at some stage or other of the proceedings, their
authority in the matter ceases.
It is equally clear that this period is, at the latest,
precisely when the last act in the series essential to the transfer
of title has been performed. Whenever this takes place, the land
has ceased to be the land of the government; or, to speak in
technical language, the legal title has passed from the government,
and the power of these officers to deal with it has also passed
away. The fact that the evidence of this transfer of title remains
in the possession of the land officers cannot restore the title to
the United States or defeat that of the grantee, any more than the
burning up of a man's title deeds destroys his title.
What is this final act which closes the transaction?
In
Marbury v. Madison, supra, this Court was of opinion
that when the commission of an officer was signed by the President
and the seal of the United States affixed to it, the commission was
complete, and the officer entitled to its possession could enforce
its delivery by the writ of mandamus. In regard to patents for
land, it may be somewhat different, and it is not necessary in this
case to go quite so far.
But we may well consider that in all nations, as far as we know,
where grants of the property of the government or of the crown are
made by written instruments, provision is made for a record of
these instruments in some public government office. Our experience
in regard to Mexican, Spanish, and French grants of parts of the
public domain purchased by us from those governments teaches us
that such is the uniform law
Page 102 U. S. 403
of those countries. We have already shown that under the English
law, all letters patent are enrolled, and that this is the last act
in the process of issuing a patent which is essential to its
validity.
We are safe in saying that every state of the Union has similar
provisions in reference to its grants of land, and it has been the
effort of most of them to compel public record of all conveyances
of land by individuals or corporations.
The acts of Congress provide for the record of all patents for
land in an office, and in books kept for that purpose. An officer,
called the Recorder, is appointed to make and to keep these
records. He is required to record every patent before it is issued,
and to countersign the instrument to be delivered to the grantee.
This, then, is the final record of the transaction -- the legally
prescribed act which completes what Blackstone calls "title by
record," and when this is done, the grantee is invested with that
title.
We do not say that there may not be rare cases where all this
has been done and yet the officer in possession of the patent be
not compellable to deliver it to the grantee. If, for instance, the
secretary whom the President is authorized by law to appoint to
sign his name to the patent should do so when he has been forbidden
by the President, or if, by some mere clerical mistake, the
intention of the officer performing an essential part in the
execution of the patent has been frustrated. It is not necessary to
decide on all the hypothetical cases that could be imagined.
But we are of opinion that when all that we have mentioned has
been consciously and purposely done by each officer engaged in it,
and where these officers have been acting in a matter within the
scope of their duties, the legal title to the land passes to the
grantee, and with it the right to the possession of the patent.
No further authority to consider the patentee's case remains in
the land office. No right to consider whether he ought in equity,
or on new information, to have the title or receive the patent.
There remains the duty, simply ministerial, to deliver the patent
to the owner -- a duty which, within all the definitions, can be
enforced by the writ of mandamus.
Page 102 U. S. 404
It is not always that the ill consequences of a principle should
control a court in deciding what the established law on a
particular subject is, and in the delicate matter of controlling
the action of a high officer of the executive branch of the
government, it would certainly not alone be sufficient to justify
judicial interposition. But it may tend to reconcile us to such
action as we feel forced to take, under settled doctrines of the
courts, to see that any other course would lead to irremediable
injustice.
If the relator in this case cannot obtain his patent, he is
wholly without remedy. He cannot sue the United States, in whom is
the title in the absence of the patent, for the United States can
be sued in no other court than the Court of Claims, and we have
decided that that court has no jurisdiction in such a case.
Bonner v. United
States, 9 Wall. 156. There is no one else to sue,
for the title is either in the relator or the United States. It may
be many years before the City of Grantsville, the party now
claiming against him, will get a patent, and it may never do
so.
The relator is therefore utterly without remedy, if the land be
rightfully his, until he can obtain possession of this evidence of
his title.
On the other hand, when he obtains this possession, if there be
any equitable reason why, as against the government, he should not
have it -- if it has been issued without authority of law, or by
mistake of facts, or by fraud of the grantee -- the United States
can, by a bill in chancery, have a decree annulling the patent, or
possibly a writ of
scire facias. If another party (as the
city of Grantsville) is, for any of the reasons cognizable in a
court of equity, entitled, as against the relator, to have the
title which the patent conveys to him, a court of chancery can give
similar relief to the city as soon as the patent comes into his
possession, or perhaps before. So that it is plain that by
nonaction of the Land Department, the legal rights of the parties
may remain indefinitely undecided, and those of the relator
seriously embarrassed or totally defeated, while the delivery of
the patent, under the writ of mandamus, opens to all the parties
the portals of the courts where their rights can be judicially
determined.
Page 102 U. S. 405
We are of opinion that the relator in the case, as presented to
us, is entitled to the possession of the patent which he demanded,
and that the writ of mandamus by the Supreme Court of the District
of Columbia is the appropriate remedy to enforce that right. The
judgment of that court will be reversed, and the case remanded with
instructions to issue the writ; and it is
So ordered.
MR. CHIEF JUSTICE WAITE, with whom concurred MR. JUSTICE SWAYNE,
dissenting.
I am unable to agree to this judgment. There are very few, if
any, of the general principles of law so well stated in the opinion
of the Court to which I do not give my assent. My objection is to
the application which is made of them to the facts of this
case.
In the stipulation of the parties, it is
"conceded that the case relating to said premises, set out in
the answer of the respondent, had been appealed from the decision
of the Commissioner of the General Land Office to the Secretary of
the Interior, and was pending before the said Secretary at the time
the demand for the patent was made on him, as set forth in the
original petition of relator, and for some days thereafter, and
that at the time of such demand, and for some days thereafter, the
said patent was, with the papers in said case, as an exhibit in
said case, in the office of the Secretary of the Interior, and was
not in the General Land Office."
This is, as I think, an admission that the case set out in the
answer was pending, and permits us to look into the answer and
ascertain what that case was. The facts on which the case rests may
not be admitted, but the existence of the case as set out is.
Looking, then, to the answer, we find that case to have been as
follows:
On the 24th of February, 1877, the corporate authorities of the
City of Grantsville made an application for the cancellation of the
entry of McBride on the lands in controversy. This application was
forwarded to the Commissioner of the General Land Office for final
adjudication and decision under the law and the established rules
and practice of the department, and it came to a final decision by
the Commissioner of the General Land Office Feb. 7, 1879. On the
8th
Page 102 U. S. 406
of April, 1879, McBride appealed to the Secretary of the
Interior. In his appeal he claimed, 1st, that the decision of the
Commissioner was contrary to the preponderance of the evidence as
shown in the record of the case, and, 2d, that the decision is
contrary to the law of the case.
In the original petition for this mandamus it is stated that the
patent was dated Sept. 26, 1877. It thus appears distinctly that
when the patent was signed, sealed, and recorded, there was a
contest authorized by law pending in the department between McBride
and the corporate authorities of Grantsville as to who had the
better right, under the laws of Congress, to the land. It is not
pretended that any formal decision was made by any of the
department officers charged with that duty that the patent should
issue. Under these circumstances, it may fairly be inferred,
irrespective of the positive averments to that effect in the
answer, that the patent was improvidently issued through the
neglect of some of the clerks having charge of the business details
of the office. In my opinion, it was the imperative duty of the
Commissioner of the Land Office, when these facts were brought to
his attention, to direct that the delivery of the patent be
withheld.
I agree that, when the right to a patent has become complete,
the execution and delivery of the patent itself are the mere
ministerial acts of the officers charged with that duty, and I
further agree that when the right to a patent has been determined
and the patent has actually been signed, sealed, countersigned, and
recorded, no actual delivery is necessary to pass the title. When
the last formalities of the law prescribed for the due execution of
a patent have been complied with, the grant is complete, if it has
before that time been determined in some appropriate way that the
right to the patent exists. Ordinarily the due execution of the
patent will be evidence of such a determination. But certainly, as
between the United States and the patentee, such evidence will not
be conclusive. Different questions may arise if the rights of third
persons intervene, but as between the original parties, until the
patent ought to issue, it may in my opinion be recalled at any time
before it gets out of the actual possession of the United States.
In reality, it can convey only what the officers of the United
Page 102 U. S. 407
States have the lawful right to grant, and if it can convey
nothing, the Secretary of the Interior ought not to be required by
mandamus to do a vain thing.
The contest here was as to the right of McBride to his homestead
entry. Confessedly the land is within the incorporated City of
Grantsville, and his entry was not made at the land office until
after the town was incorporated, although he settled on the land
long before. It was a question, therefore, whether, under the
circumstances, he had the right to his entry. That question was
pending before the department in the ordinary course of proceedings
when the patent was executed. It involved the investigation of
facts. This is apparent both from the case as set forth in the
petition and the appeal papers which McBride himself filed. That
the facts were disputed, too, is apparent from the statement in the
appeal that the decision of the Commissioner was contrary to the
preponderance of the evidence. The patent ought not to have been
executed if the entry was unlawful. Whether it was lawful or not
was, at the time, the question at issue between McBride and the
authorities of Grantsville in the contest then pending in the
department. The law makes provision for such contests, and we have
over and over again held that in the absence of fraud, the decision
of the officers on the facts is final.
Johnson v.
Towsley, 13 Wall. 72. As the right of McBride to a
patent depended on the result of that contest, will the execution
of the patent have the effect of a judgment on the facts before the
hearing is concluded?
I will not pursue the subject further. Enough has already been
said to show the grounds of my dissent. In my opinion, to direct
the Secretary to deliver the patent is to give McBride execution in
his pending suit before judgment rendered, and may lead to
inextricable confusion.
NOTE -- A motion was subsequently made to modify the order that
each party should pay his own costs, and to render judgment against
the defendant for costs.
MR. JUSTICE MILLER delivered the opinion of the Court.
Our first impression was that as the defendant was sued in
regard to the manner in which he had discharged certain official
duties as Secretary of the Interior, in which no intentional wrong
was charged or proven against him, it
Page 102 U. S. 408
would be unjust to make him pay the costs of the proceeding out
of his own pocket.
But a careful examination of the authorities leaves us no option
but to follow the rule that the prevailing party shall recover of
the unsuccessful one the legal costs which he has expended in
obtaining his rights.
In
Kendall v. United
States, 12 Pet. 524, the leading case establishing
the right of a citizen to the use of the writ of mandamus to compel
a public officer to perform a duty merely ministerial, the relator
recovered his costs. The duty in that as in the present case was
one enjoined upon a cabinet officer which he refused to perform. It
is obvious that he thought he was right in refusing to do the act
demanded of him, yet this Court, as shown by the report of the
case, rendered judgment for costs against him.
In
United States v.
Boutwell, 17 Wall. 604, which was the case of a
writ of mandamus against the defendant as Secretary of the Treasury
and which the court held to be abated by his retirement from
office, it was said:
"It is the personal default of the defendant that warrants the
impetration of the writ, and if a peremptory writ of mandamus be
awarded, the costs must fall upon the defendant."
And it is argued that as it would be unjust to make the
successor in office of the delinquent secretary pay the cost of
defending the action of his predecessor, the writ must of necessity
abate.
We cannot, in the face of these cases, refuse the order for
costs, however much we might wish it were otherwise. There may be a
contingent or other fund of the department out of which they can be
paid. If there is none, Congress may provide for it or enact
generally that when the officers of the government are sued with
reference to the manner in which they have performed or failed to
perform their official duties, they, as in revenue seizures and
similar cases, shall be relieved from the expense of the suit if
they have acted with good motives and upon reasonable grounds.
The relator must have judgment for his costs.