Samuel Freeman Miller

“ To show that I recognize the existence of the right to make such proof, if the person who offers it is in a position to do so, it is only necessary to refer to Simmons v. Wagner, 101 U.S. 260, where, as the organ of the court, I announced its decision that one in possession under a certificate issued by a proper officer in the regular course of his official duty, showing that he had bought and paid for the land, might successfully defend an action of ejectment brought against him by the holder of a patent issued upon an entry by another party made long after his rights accrued ”

“ In the present case, Carr alleges that he was in possession when the entry was made by Doolan and McCue, and this is not denied except by saying that Carr was not ousted at any time while he was the owner of the land. As these parties have received from the government no recognition of their pre-emption entries therefor, and have not paid the purchase money, they stand before the law as mere volunteers and intruders on the possession of the patentees. They do not and cannot represent the title of the United States as against the patent, and are not entitled to be heard in opposition to it. ”

“ They establish beyond all question that, if one holds under an older title, or if he is in a position under a junior claim to represent the title of the government, he may attack the validity of a patent in a suit at law on the ground that it was issued without proper authority. ”

“ At the trial the holder of the junior warrant sought to show that the former grant was 'obtained contrary to law, being founded on a warrant which was issued by fraud or mistake;' but Chief Justice MARSHALL, in delivering the opinion of the court, said: 'The title of the respondent to the particular tract included in his patent was complete before that of the appellants commenced. It is not doubted that a patent appropriates land. Any defects in the preliminary steps which are required by law are cured by the patent. ”

“ Meador, 16 Cal. 295, it was held by the supreme court of California, in 1860, that 'a patent, not void upon its face, cannot be questioned, either collaterally or directly, by persons who do not show themselves to be in privity with a common or paramount source of title;' and the court, in delivering its opinion, was careful to say, 'the point here is as to the status of the party who can raise any question as to its [the patent's] validity when it is regular on its face.' I cannot but believe this is the true doctrine. If the government is satisfied with what has been done, all others must be ”

“ The patent under which the appellee claimed was issued in 1870, under the act of 1862 granting lands to railroad companies for the purpose of constructing a railroad to the Pacific ocean. 12 U.S. St. at Large, 492. One of the companies was the Western Pacific Railroad Company, to which was granted every alternate section of public land, designated by odd numbers, within 10 miles on each side of its road, not sold, reserved, or otherwise disposed of by the United States, and to which a homestead or pre-emption claim may not have attached at the time the line of the road was definitely fixed. ”

“ U.S., and reciting the fact that in that case they confined a grant of every alternate section of 'land' to such whereto the complete title was absolutely vested in the United States, proceeds: 'The acts which govern this case are more explicit, and leave less room for construction. The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws. ”

“ A patent is utterly void and inoperative which is issued for land that had been previously patented to another individual. * * * The patent of the defendant, having been for land reserved from such appropriatin , is void, and also the survey of Coontz, so far as either conflicts with the plaintiff's title.' These principles were recognized in and governed the decision of the court in Easton v. ”

“ Peirsol, 1 Pet. 340, is quoted with approval: 'Where a court has jurisdiction it has a right to decide every question which occurs in the cause; and, whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But, if it act without authority, its judgments and orders are regarded as unllities. ”

“ On the other hand, it seems to me equally well settled that if he who seeks to contest the patent is a volunteer, a mere intruder, he will not be heard. Thus, in Hoofnagle v. Anderson, 7 Wheat. 212, the contest was between the holders of two Virginia military land-warrants, who had made their entries on the same tract of land. One entered and got his patent 18 months before the other located his warrant. ”

“ The court then charged the jury that 'the patent title to this land to the Central Pacific Railroad Company is conclusive in this case. It cannot be attacked in a collateral manner. If it can be attacked at all, it is only by a direct proceeding for the purpose of vacating the patent ”

“ Chambers, which was an action of ejectment, an attempt was made to show that the defendant's patent was void. This court said in that case: 'The location of Coontz was made in 1818, and his survey in 1818. At these dates there can be no question that all land claimed under a French or Spanish title, which claim had been filed with the recorder of land titles, as the plaintiff's claim had been, were reserved from sale by the acts of congress above stated. ”

“ That said railroad was completed prior to the year 1870. The plaintiff objected to the proof thus offered to be made by the defendants, and to other proof not material to the point now under consideration, on the ground 'that the United States patent cannot be collaterally attacked in this action; that it can be attacked by bill in equity only ”

“ That the departmental assembly of the Mexican nation confirmed said grant to said Noriega and Livermore on, to-wit, May 22, 1840. That on, to-wit, February 27, 1852, said Noriega and Livermore petitioned the board of land commissioners appointed under the provisions of the act of congress approved March 3, 1851, entitled 'An act to ascertain and settle the private land claims in the state of California,' to have said grant confirmed ”