Melville Fuller

“ But the supreme court applied the rule that where the existence of certain facts is assumed in the trial court and the trial proceeds, without objection, on that assumption, and the case is decided in reliance thereon, neither party will be heard in the court of review to question there, for the first time, the existence of the facts, and especially not where the alleged omissions might have been supplied if called to the attention of the trial court. ”

“ The cancelation of the entry of the 700 feet did not rest on any defect in the original location. On the contrary, the Land Department held the proceedings sufficient to entitle the Kohnyo's claimant to proceed to patent for this particular tract if he should so elect. It was only when the Kohnyo claimant abandoned that tract by making his election that he waived his right to patent, it and permitted the receiver's receipt to be canceled to that extent. ”

“ The attack is collateral and cannot be entertained. Steel v. St. Louis Smelting & Ref. Co. 106 U.S. 447, 27 L. ed. 226, 1 Sup. Ct. Rep. 389; St. Louis Smelting Co. v. Kemp, 104 U.S. 636, 26 L. ed. 875. True, those decisions refer to instances where the patent had issued, but the principle of freedom from collateral attack is equally applicable where final entry has been made. The final certificate issued by the receiver after the submission of final proof and payment of the purchase price, where such is required, has been repeatedly held to be for many purposes the equivalent of a patent. ”