by John Marshall Harlan

“ The bill, after setting forth the above and other facts, alleged that the action of the Land Department in regard to the entry in question was without authority of law, and that the patent to Diller was wrongfully issued.
The relief asked was a decree holding the patent of the defendant to be a cloud upon the title of the plaintiffs, adjudging that the defendant held the title in trust for them, and requiring him to convey to them whatever title he might have obtained or acquired by virtue of such patent; that the title of the plaintiffs to the land be forever quieted against the defendant ”

“ Whatever claim to patent he possesses by virtue of his payment and certificate is dependent upon the action of the Department, and its future finding of the existence of the conditions, and his compliance in fact with the prerequisites prescribed by law to the rightful acquisition of the public land he claims. ”

“ Where patents have been already issued on entries which are confirmed by the officers who are constituted the board of adjudication, the Commissioner of the General Land Office, upon the canceling of the outstanding patent, is authorized to issue a new patent, on such confirmation, to the person who made the entry, his heirs or assigns. ”

“ It is there declared that 'every such adjudication,' if approved by the board, 'shall operate only to devest the United States of the title of the lands embraced thereby.' A decision merely rejecting or canceling the entry could not, with or without the approval of the board, have the effect of devesting the United States of its title. ”

“ Rep. 666, where the matters determined by the Land Office 'are not properly before the Department, or its conclusions have been reached from a misconstruction by its officers of the law applicable to the cases before it, and it has thus denied to parties rights which, upon a correct construction, would have been conceded to them, or where misrepresentations and fraud have been practised, necessarily affecting its judgment, then the courts can, in a proper proceeding, interfere and control its determination so as to secure the just rights of parties injuriously affected.' See also Quinby v. ”

“ A demurrer to the bill having been overruled, the defendant filed both a plea and an answer. After referring to the hearing before the receiver and the register, resulting in a division of opinion between those officers, the plea recited as a defense the history of the proceedings as abovest ated, and the entry of the land and the issue of a patent to the defendant after the cancelation of Hackley's entry. The plea was overruled. In his answer the defendant questioned the good faith and sufficiency of the conveyances from Hackley to Bailey and from Bailey to the plaintiffs. ”

“ The register and receiver being divided in opinion the matter went to the Commissioner, who decided that all the land embraced in the entries before him, including the land here in question entered by Hackley, was timber land that could be entered as such under the act of June 3d, 1878; that all of the proceedings in relation to Hackley's entry were regular; that the proof submitted on the entry was sufficient; and that the government had failed to prove thatth at entry was made in the interest of Bailey or of any other person than the entryman. ”

“ Who, within the meaning of the act, are to be deemed bona fide purchasers?Co uld the appellants, against whom, in respect of these lands, no charge of fraud was made, be deemed bona fide purchasers, if it appeared to the Land Department, before a pattent issued, that the original entryman made the application to purchase 'on speculation,' and not in good faith to appropriate the lands to his own exclusive use and benefit? ”

“ For all lands covered by claims which are placed in the first class, patents shall issue to the claimants; and all the lands embraced by claims placed in the second class shall, ipso facto, revert to, and become part of, the public domain. ”

“ If he have but an equity, it is overreached by the better equity of his adversary.'
The rule thus laid down was followed by Secretary Teller in Cogswell's Case, 3 U.S. Land Dec. 23, 28. In Chrisinger's Case, 4 U.S. Land Dec. 347, 349, Secretary Lamar said: 'It is insisted by counsel, and ably argued at length, that the assignees of Chrisinger, being bona fide purchasers after entry, are entitled to intervene and have their interests protected, as they took without notice of any defect in the final proof. This proposition is not tenable. ”

“ Throughout all these proceedings appellants protested that the Land Office was without jurisdiction or authority to cancel the entries of the lands that had been transferred to them.
In the course of his opinion Secretary Smith said that there was no charge, nor was there any testimony affecting the transaction between Bailey and his transferees. He also said that his interpretation of the statute did not imply that a timber-land entryman was not authorized to sell his entry at any time that he chose after he had made his proof and received a certificate. 17 U.S. Land Dec. ”