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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 40 acres of the land mentioned in the bill and mortgage, to wit, the S. W.74 of the S. W. 14 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 4 of said southwest 14 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 40 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 purchase from the United States, and since their rights depend upon the laws of the United States concerning the sales 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., November 15, 1855. That his right to it was contested before the register and receiver by Bunn, who set up a prior pre-emption 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.
Some time 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 to the lad, 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 foundotion for Bunn's pre-emption claim. We will consider this point more fully when we come to the Davis branch of the case.
Taking this for granted for the present, 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 or 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 pre-emption, 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 vs. Bunn, 54 III. R. 48.)
Without inquiring for the present 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 Moor's case. While conceding for the present to the fullest extent, that when there is a qnestion 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 receiyer, and commissioner are created mainly for the purpose of supervising the sales of the public lands, and it is a part of their daily business to decide when a party has by purchase, by pre-emption, or by any other recognized mode, established a right to receive from the government a title to any part of the public do
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main. This decision is subject to an appeol to the secretary, if taken in time. Bnt 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 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 wonld be as reasonable to hold that any private owner of land who has conveyed ii 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 vs. Stone, 2 Wall., 535, "is the highest evidence of title, and is conclusive as 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 vs. United States, 4 Wall., 232; same case, II How., 568.)'
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 Pretident 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 othes executive officer 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, November 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 20th day of February, 1856, more than three months after Mitchell's purchase, Thomas I. Bunn appeared before the same register and receiver and assert a right by reason of a pre-emption commenced on the 8th day of November, 1855, to pay for the south of the S. W. ) and the S.
2 of the S. E. 4 of section 27, which includes both the land. of Moore and Davis in controversy in 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 Moor 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, (54 III. R., 50,) after citing some ten or twelve decisions of their own court, 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. It is a little singular that, while the question thus decided by that court was a question of federal law, and while there existed at that time many reported decisions of this court. from Garland vs. Wynn, in 20 Howard, down to Silver vs. Ladd, in 7 Wallace, on that point, none of them are referred to by the court or by counsel.
The whole question, however, has been since that time very fully reviewed and considered by this court in Johnson vs. 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 corroct 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 whch on the undisputed facts belonged to another, to give appropriate relief.
In the recent case of Shepley vs. Cowan, 91 U. S. R., 340, the doctrine is thus aptly stated by Mr. Justice Field: “The officers of the land department are specially designated by law to receive, consider and pass upon proofs presented with reference to settlements upon the public lands, with a view to secure the right of pre-emption. 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 reversed and annulled by the courts when a controversy arises btween private parties founded upon their decisions; and for mere errors of judgment up