Samuel Freeman Miller

“ But certainly, as between the United States and the patentee, such evidence will not be conclusive. Different questions may arise if the rights of third persons intervene; but, as between the original parties, until the patent ought to issue, it may, in my opinion, be recalled at any time before it gets out of the actual possession of the United States. In reality, it can convey only what the officers of the United States have the lawful right to grant; and, if it can convey nothing, the Secretary of the Interior ought not to be required by mandamus to do a vain thing. ”

“ To this we answer, First, that the destruction of a deed, after it has worked a transfer of title, does not reinvest the estate in the grantor. Secondly, that the assumption of a power not conferred by law finds no justification in the fact that a mischief may be thereby suppressed, or a private right maintained, even conceding that the power may in some hands be wisely exercised to secure what is believed to be a lawful end. If in the administration of the land system further powers should be vested in the Secretary of the Interior, Congress alone can confer them. ”

“ So that it is plain that by non-action of the Land Department the legal rights of the parties may remain indefinitely undecided, and those of the relator seriously embarrassed or totally defeated, while the delivery of the patent, under the writ of mandamus, opens to all the parties the portals of the courts where their rights can be judicially determined. ”

“ The patent was issued by authority and direction of law, and upon general principles, where the patentee does not expressly dissent, his assent and acceptance are to be presumed from the beneficial nature of the grant. But it is hardly necessary to resort to such presumptions, because, in this and in all such cases, the acts required to be done by the claimant, and actually done by him in the preparation of his claim for patenting, are equivalent to a positive demand of the patent and amount to an acceptance of it. ”

“ If it were conceded that delivery of the patent is essential to the transfer of title to the grantee, and that such dlivery is required as is necessary in a conveyance from man to man, it would be a question of some difficulty to decide whether such delivery took place in this case. The well-known principle by which the intention of the grantor in a deed to make an act which falls far short of manual delivery, to stand for delivery, when so designed, might well be applied to the act of the commissioner in transmitting the patent by mail to the local office for the purpose of delivery ”

“ The importance attached to the delivery of the deed in modern conveyancing arises largely from the fact that the deed has taken the place of the ancient livery of seisin in feudal times, when, in order to give effect to the enfeoffment of the new tenant, the act of delivering possession in a public and notorious manner was the essential evidence of the investiture of the title to the land. ”

“ It has been urged that a patent is sometimes improvidently executed and recorded under a mistake of fact, or from error in law, and that public mischief and individual hardship will ensue if the Secretary has no authority to recall it before its delivery, and cause it to be cancelled and the record of it to be expunged. ”

“ McBride can take nothing by the mere execution and recording of his patent without delivery. If a mistake in the condition of the title, or a want of authority to issue it, be discovered before completing its issue by delivery, no title or right depending on such execution passed to him, and the department may treat it as void, and proceed to dispose of the land according to law. ”

“ If the relator in this case cannot obtain his patent, he is wholly without remedy. He cannot sue the United States, in whom is the title in the absence of the patent; for the United States can be sued in no other court than the Court of Claims, and we have decided that that court has no jurisdiction in such a case. ”

“ It is argued with much plausibility that the relator was not entitled to the land by the laws of the United States, because it was not subject to homestead entry, and that the patent is, therefore, void, and the law will not require the Secretary to do a vain thing by delivering it, which may at the same time embarrass the rights of others in regard to the same land. ”

“ The issue, which, it has been shown, is subsequent to the record, and can only mean delivery, is treated as the thing to be proved; all the matters of record are but instruments of evidence to establish the fact of issue. ”

“ If another party (as the city of Grantsville) is, for any of the reasons cognizable in a court of equity, entitled, as against the relator, to have the title which the patent conveys to him, a court of chancery can give similar relief to the city as soon as the patent comes into his possession, or perhaps before. ”

“ This court has with a strong hand upheld, the doctrine that so long as the legal title to these lands remained in the United States, and the proceedings for acquiring it were as yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere. ”

“ If, for instance, the secretary whom the President is authorized by law to appoint to sign his name to the patent should do so when he has been forbidden by the President, or if, by some mere clerical mistake, the intention of the officer performing an essential part in the execution of the patent has been frustrated. ”

“ This leaves out of the process of reasoning the ninety-second section of the revision, which declares again that 'the laws of the State of Maryland, not inconsistent with this title, as the same existed on the twenty-seventh day of July, 1801, except as since modified or repealed by Congress or by authority thereof, or until so modified or repealed, continue in force within the District.' Thus the argument is precisely the same as it was in Kendall v. ”