David Josiah Brewer

“ But it is well settled that when the government proceeds to set aside its patent, not for the sake of establishing its own right to the property, but in the interest of some person who has an equitable claim thereto, or to whom the government owes the duty of protecting his interests, it is subjected to the same defenses of laches, limitation, and want of equity that would attach to a like suit by an individual. ”

“ We conclude, therefore, that the defense of laches, which in its nature is a defense conceding the existence of an earlier legal or equitable right, and affirming that the delay in enforcing it is sufficient to deny relief, is the assertion of an independent defense. It proceeds upon the concession that there was, under the laws of the United States, a prior right, and, conceding that, says that the delay in respect to its assertion prevents its present recognition. ”

“ But be this as it may, whenever the invalidity of a patent does not appear upon the face of the instrument, or by matters of which the courts will take judicial notice, and the land is apparently within the jurisdiction of the land department as ordinary public land of the United States, then it would seem to be technically more accurate to say that the patent was voidable and not void. Even in cases where it has been called void the right of the United States to maintain a bill to set aside the patent has been sustained. ”

“ Rep. 628, and it was held that the title of a lotowner holding a deed from the probate judge who had entered the lands under the townsite act could not be defeated because after the issue of the patent there was a subsequent discovery of minerals and an issue of a patent therefor to the discoverer, the court saying, on p. ”