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The grant is regarded as a compact body of land, having itself a general figure indicated by the desiño, and the two confirmed claims are components of the body. The aggregate of the two confirmations cannot be greater than the entire original grant; nor are the parts found severed from each other, but must be continuous.

The Rodriguez claim must therefore be suspended till we can proceed with Castro's claim; or if the claimants prefer it, and abandon the surveys that have been made, it will be proper to order a re-survey of both claims, conformably to the decisions in the two cases, and to the laws and general regulations pertaining to the location of private land claims in California.

Shortly after your report was submitted, the attorney, Mr. Hepburn, was verbally advised of my opinion in these cases as now expressed, and it was deemed probable that he would have some further communication to make, but I have received none, and as some three months have elapsed since, I now return the papers in the matter to your office. Very respectfully your obedient servant,

J. THOMPSON, Secretary. Commissioner of the General Land Office.

TITLE XIII.

Land Patents.

RESCISSION OF LAND PATENTS. No. 663. The proper mode of proceeding to vacate an erroneous Land Patent is by

bill in equity ; the regularity of proceeding by scire facias in this country is doubted. In England, letters patent are of record on the law side of the Chancery Court; wherefore there is a propriety there for a writ of scire facias to vacate a patent, that does not exist in the United States.

(Case of Jackson v. Lawton, 10 Johnson, 23, contra.) A bill or information will lie in Chancery to set aside a patent that has

issued improperly; and being the surest mode, it is recommended to the Land Office. (Seward's Lessee v. Hicks, í Har. & M Henry, 24; Lord Proprietor v. Jennings, ibid., 92 ; Bagrell v. Broderick, 13 Pet.

436.) A second patent for the same land should not issue until the first patent shall have been judicially avoided.

OFFICE OF THE ATTORNEY-GENERAL,

November 26, 1842. Sir:-I have had the honor to receive your letter of the 22d inst., enclosing a communication from the Commissioner of the General Land Office,

Though a public grant raises the presumption that every pre-requisite has been complied with, the jury could not safely be instructed that no fraud in a public officer could invalidate it.-Patterson V. Jenks, 2 Peters, 216; 8 Condensed Reports, 92.

A patent in the name of a deceased person conveys no title; but by the Act of 2d March, 1807, (2 Stats. at Large, 424,) land so patented in the Virginia Military Land District, was withdrawn from location; and by the Act of May 21, 1836, the defect was cured, and the title vested in the heirs of the deceased patentee.Galloway v. Finley, 12 Peters, 26; 12 Cond. Reps. 724.

A patent is a complete appropriation of the land it describes; and at law, no defect in the preliminary steps can be tried.-Stringer's Lessee y. Young, 3 Peters, 320; Boardman v. Reed's Lessees, 6 Peters, 328; 10 Cond. Reps. 135.

The entire description in a patent must be reasonably construed, to ascertain the identity of the land. If a call is erroneous and repugnant, and enough remains after rejecting it, to identify the land, the patent is not void.--16.

A patent issued to one whose claim under a Spanish title in Missouri had been confirmed by a Board of Commissioners, pursuant to an act of Congress, is conclusive evidence that the grantee was the lawful owner of the title thus confirmed, and that he had the best Spanish title to that tract of land.—Landes v. Brant, 10 Howard, 348; 18 Cond. Reps. 418.

Whatever may be the equities in third persons, the patentee has the legal title ; and a State law cannot confer on the equitable owner the right to maintain an action requesting my opinion on the following questions, arising in the case of the conflicting claims of Robert Johnson and Giles Carter: “1. Whether the Land Office would be justified in issuing a patent on the pre-emption entry of Robert Johnson, reciting therein the issue and delivery, by mistake, of the patent to Giles Carter, (which includes a portion of the land embraced by Johnson's pre-emption entry,) leaving the question of title to be settled by them in their local courts upon the two patents so issued; or, 2. Whether it will be necessary first, by scire facias, or bill in Chancery, to procure the vacation of the erroneous patent to Carter prior to issuing one to Johnson.

Notwithstanding the opinions of Mr. Wirt, (Opinions of Attorneys-General, 334 and 575,) I feel some difficulty about the course recommended by him to be pursued by the Land Office in a case of patents issued under such a mistake as that in question. If the patent has not been delivered, I am not disposed to deny that it may be withheld on the discovery of

of ejectment against the patentee.-Bagnell v. Broderick, 13 Peters, 436 ; 13 Cond. Reps. 325.

An act of Congress confirming a title, makes a legal title without a patent.–Grignon's Lessee v. Astor, 2 Howard, 319; 15 Cond. Reps. 125.

An act of Congress confirming titles, excepted cases where the land had been previously located by any other person than the confirmee, under any law of the United States, or had been surveyed and sold by the United States. Held, that a location made on land reserved from sale by an act of Congress, or a patent obtained for land so reserved, was not within the exception, and the title of the confirmee was made perfect by the act of confirmation, and without any patent, as against the prior patent, which was simply void; and this valid legal title enured at once to the benefit of an assignee of the confirmee.-Stoddard v. Chambers, 2 Howard, 284; 15 Cond. Reps. 119.

Where there are two confirmations by Congress, of the same land in Missouri, the elder confirmation gives the better title ; and the jury are not at liberty, in an action of ejectment, to find that the survey and patent did not correspoud with the confirmation.-- Willot et al. v. Sandford, 19 Howard, 79.

Where the Receiver gave a receipt in the name of John Bell, and the Register made two certificates of purchase, one in the name of John Bell and the other in the name of James Bell, the circumstances of the case show that the latter was an error which was properly corrected by the Commissioner of the General Land Office, in the exercise of bis supervisory authority; and he had a right to do this, although a patent had been issued to James Bell, which had been reclaimed from the Register's office, and returned to the General Land Office to be cancelled.--Bell v. Flearne et al., 19 Howard, 225.

In an action at law, the patent from the United States for part of the public lands, is conclusive. If those who claim adversely to the patent can show that it was erroneously issued, relief must be sought on the equity side of the Circuit Court.Bagnell v. Broderick, 13 Peters, 436; 13 Cond. Reps. 235.

Mere possession of public land will confer no title as against a grantee under the United States.—Burgess v. Gray, 16 Howard, 48; 21 Cond. Reps. 25.

An equitable Spanish title not confirmed by the United States, cannot prevail against a legal title acquired from the United States.- United States v. King, 3 Howard, 773; 15 Cond. Reps. 640.

So long as the government held the title to the land demanded, there could be no adverse possession to cause the Statute of Limitations to run.—Lindsey v. Miller, 6 Peters, 666; 10 Cond. Reps. 304.

If the defendant have the prior patent for the land, the plaintiff can prevail in equity only by showing prior valid entries.-Hunt v. Wickliffe, 2 Peters, 201; 8 Cond. Reps. 85.

A patent makes a valid title as against a subsequent entry.-Hoofnagle v. Anderson, 7 Wheaton, 212; 5 Cond. Reps. 248.

fraud or error. But where the act of issuing it is complete, and the patentee will not give it up to be cancelled, it is, in my opinion, a good title at law until judicially avoided. Then the question is, how is that to be done? Mr. Wirt lays it down that it may be effected either by a scire facias or by bill in equity. This is the uniform language of American lawyers, and on a former occasion I signified my assent to it. (See the well considered case of Jackson v. Lawton, 10 Johns. 23.) On a more mature consideration of the subject, I am led to entertain some doubts, notwithstanding these weighty dicta, whether scire facias, even in equity, is precisely regular in this country. The reason why it lies in chancery in England is, that letters patent are of record on the law side of that court. In a leading case on this point, (The King v. Butler, 3 Lev. 223,) this is expressly ruled; and it is added, that where the matter is forfeiture of a patent, or other thing, in another court, there must be an office found in that

A patent from the United States does not affect a pre-existing title in a third person.--New Orleans v. De Armas, 9 Peters, 223; 11 Cond. Reps. 338.

Where a patent is founded on an assignment of a certificate of a military right, a court of equity may inquire into an alleged fraud in that assignment, and if found fraudulent, decree the holder of the legal title to be a trustee for the equitable owner. -Brush v. Ware, 15 Peters, 93; 14 Cond. Reps. 34.

The act of a Register in issuing a warrant under such a certificate, is ministerial, not judicial.-16.

The plaintiff ia ejectment must in all cases prove a legal title to the premises in himself, at the time of the demise laid in the declaration; and evidence of an equitable title will not be sufficient for a recovery.-Fenn v. Holme, 21 Howard, 481.

Hence the holder of a New Madrid certificate, upon which no patent had been issued, and whilst it was yet uncertain whether or not the proposed location of it was reserved under older surveys, could not recover in ejectment. The legal title was in the government.--16.

In Opinion of July 20, 1848, (vol. 5, p. 7,) Attorney General Toucey says, “In the case of Ross v. Borland, 1 Peters, 656, the Supreme Court held a junior patent to prevail against an elder one on two grounds. 1st. That the junior patent, which issued upon a certificate of a donation claim prior in date to the other patent, would overreach it by the local law, which was admissible. 2d. That the junior patent issued on the certificate of a board of commissioners, west of Pearl river, whose decisions were final; in other words, the second patent issued upon legal authority, the first did not, and therefore the second must prevail. More recently, in the case of Brown v. Clements, 3 Howard, 650, it was directly adjudged by the Supreme Court that the second patent prevailed over the first where the first was not legally issued.”

After referring to other cases, Attorney-General Toucey continues : “ It is evidently, therefore, the view of the Supreme Court, that a patent issued without authority of law, or against law, is not voidable merely but void, and being therefore a nullity, and as though it did not exist, it leaves the duty unimpaired to convey the title to the rightful owner.”

In the concluding clause of Attorney-General Clifford's “Opinion” of April 7, 1847, (vol. 4, p. 558,) addressed to the Secretary of the Treasury, he says: “If, however, he, Mr. (Arnold,) shall be advised by his counsel that it is necessary, you might authorize him to use the name of the United States, as was suggested by this Office in the case of William Russell, on the 26th March, 1842. That, however, is a matter resting in your discretion, which ought not to be exercised except in a clear case."

An elder patent, unless issued without authority of law, is conclusive against a junior patent, and the land would pass by it, the second being inoperative.--Jackson v. Lawson, 10 Johns. 24.

Where, upon the application of a settler on public land in Iowa for a patent for his entered location, it was made to appear, that after having executed a deed of a portion of the land to another person, he made the affidavit required by law, that no person, other than himself, had any interest therein, and that he had made no contract, &c.; and that such grantee had obtained a patent for his land under the Act

other court before the scire facias. (See also the argument for the crown, in The King v. Vernon, 3 Lev. 281, and the opinion of the judges, 387.)

I know no case in which this rule has been expressly denied to be law in this country, though there are, as I have said, many dicta that appear inferentially inconsistent with it; though, even in the case in 10 Johns., the opinion of the court seems to be that the scire facias must be brought in chancery, evidently founding itself upon the English authorities, yet overlooking the distinction between the two sides of the chancellor's court. (1 Mad. Ch. P. 4.) It is certain, however, that a bill or information will lie in chancery to set aside a patent that has issued improperly; and this, as being the surest course, I recommend to the Land Office. (Seward's Lessee v. Hicks, 1 Har. & M‘Henry, 24; Lord Proprietor v. Jennings, ib., 92; Bagnell v. Broderick, 13 Pet. 436; and the case above cited.)

A bill may be filed in the name of the United States, or even of the

pro

of 4th September, 1841, and claimed to hold it, notwithstanding the settler's deed to him had been decreed by a court of chancery, having jurisdiction, to have been obtained by duress, and for such reason to be void; held, that a second patent for the same land ought not to be issued whilst the first remains outstanding.-(Opinion of Attorney-General, April 7, 1847, vol. 4, p. 558.)

It is not the duty of the government to institute proceedings to vacate the first patent, as it is in nowise responsible for the act which embarrassed the settler's preemption, and caused the existing difficulty.-16.

The applicant should seek relief in the Court of Chancery, which has full jurisdiction of the case, and ample power to administer the remedy to which he shall be entitled.-16.

He may, however, be permitted to use the name of the United States in his ceedings, if the Secretary of the Treasury shall deem it discreet to authorize it.- 1b.

A patent issued by mistake may be corrected before delivery. If delivered, and the patentee refuse to surrender it for cancellation, the President may issue a new one, reciting the error committed in the former as the cause.—(Opinion, November 13, 1826, vol. 2, p. 41.)

Where a patent was issued by mistake, for a whole instead of a quarter-section of land, and the patentee sold the same; held, that the vendee be immediately notified of the mistake, and that both be made parties to a suit for the cancelling of the patent.--(Opinion, June 7, 1827, vol. 2, p. 53.)

A patent may properly issue to pre-emptors, notwithstanding others, to ordinary purchasers, may have been issued for the same land, and remain outstanding.(Opinion, July 29, 1848, vol. 5, p. 7.)

As against pre-emptors who have complied with the conditions of the law, the executive department has no right to convey to others; and whenever it does so the grants are void.-16.

Patents erroneously issued, or rendered invalid by an act of Congress confirming adverse titles, must be cancelled, or judicially avoided, before another can be issued for the same land, even to confirmees.-(Opinion, March 15, 1843, vol. 4, p. 149.)

After one patent has issued for lands, the executive department is functus officio in respect to such lands, until its former act is judicially set aside.-16.

The issuing of new patents, whilst others are outstanding, will lead to infinite mischief and confusion, by the blending of executive and judicial functions in a manner unknown to the laws and the Constitution.-16,

If two patents be issued by the United States for the same land, and the first in date be obtained fraudulently or against law, it does not carry the legal title. A patent issued for lands reserved from sale is void.- Wright v. Rutgers, 14 Missouri Reports, 585; Stodard v. Chambers, 2 Howard, United States, 284.

The holder of an unpatented location cannot dispossess one holding under a patent from the United States by any common law proceeding, but he may institute a pro

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