party concerned; and the suit be conducted either by the district attorney, or the solicitor of the pre-emptioner, to set aside the patent, or hold the patentee as a trustee, on the ground that, under the pre-emption acts, an equitable title had previously vested in the latter pre-emptioner; and that, according to the course of the Land Office, the issuing a patent to another was an unauthorized act, procured to be done by surprise. Such a suit, as between individuals, supposes the equity to be all on the side of the complainants. Should, therefore, the legal title conveyed by the patent be supported by an equity, (e. g., purchase without notice for valuable consideration,) the suit might possibly fail. This must be looked into by those who shall be called on to institute the suit. The case of Seward's Lessee v. Hicks, however, is authority for proceeding even against a vendee in

ceeding in chancery, for the purpose of rescinding a patent improperly granted.— (Opinion, August 31, 1819, vol. 1, p. 300.)

The general standard of remuneration, where the title fails, is the purchase-money and interest; the improvements to be paid for by the successful party.-Ib.

Land patents issued by mistake, for lands to which other persons have pre-emption rights, may be returned and cancelled, or repealed by scire facias or bill in chancery, at the instance of the United States, or of the pre-emptioners in the name of the United States.-(Opinion, January 27, 1821, vol. 1, p. 458.)

The Recorder of the General Land Office only has power to attest and seal patents for public lands, the former law in this respect having been repealed by the Act of July 4, 1836.—(Opinion, July 25, 1836, vol. 3, p. 140.)

All patents emanating from the General Land Office, whether of lands sold, or of lands in respect to which private claims are recognized by Acts of Congress, must be certified or countersigned by the Recorder.-(Opinion, December 23, 1836, vol. 3, p. 167.)

Ordinary sales of lands afterwards confirmed to a Spanish claimant, must yield to the confirmed claim.-(Opinion, August 8, 1838, vol. 3, p. 354.)

It is a sufficient compliance with the provisions of the Act of July 4, 1836, for the engrossing clerks to write the name of the President to patents, and for the Secretary thereafter to attest them by his signature.-(Opinion, February 27, 1841, vol. 3, p. 623.)

All the duties respecting the execution of patents are ministerial, and may be performed either by the clerks or by the Secretary.—Ib.

The counter-signature of the Recorder of land patents, and seal of the office thereto attached, constitute a sufficient authentication of a patent for land.-(Opinion, April 10, 1841, vol. 3, p. 630.)

On a certificate to A. and company, assigned by A. alone, a patent may issue to A.'s assignees; and his partners must seek relief, if they are entitled to any, in the courts. (Opinion, October 20, 1842, vol. 4, p. 96.)

It is not competent or proper for the Commissioner of the General Land Office to make alterations in the dates of patents for lands, after the delivery thereof to the grantees. (Opinion, June 18; 1844, vol. 4, p. 329.)

Whether patents, irregularly issued, shall have effect from their date or time of delivery may be determined by parol testimony.—Ib.

Patents granted by the United States for lands confirmed by the commissioners to adjudicate private land claims, do not confer title save as against the United States. —(Opinion, February 14, 1856, vol. 7, p. 636.)

The legal effect of confirmation dates back to the time of the cession of California to the United States, and decides that the land confirmed was not public domain at that time.-Ib.

The rights or claims of third parties remain to be determined by the proper courts. -lb.

such a case; and, on general principles, a distinction is to be taken between a grant of the sovereign and a sale made by an individual. The rule laid down by the Supreme Court (Taylor v. Browne, 5 Cr. 234,) is, that the locator of a warrant undertakes himself to find waste and unappropriated land; and his patent issues upon his own information to the Government, and at his own risk. He cannot be considered as a purchaser for valuable consideration without notice. This may be generalized. (See the case of The King v. Vernon, as to a grant obtained by surprise from the king.) On these precedents and the general rules relating to grants. by the sovereign, I think it the better opinion that such a patent ought to be set aside, unless it happened to be supported by some very strong extraneous equity. Mr. Wirt's opinion seems clear in the affirmative; and

Such patents do not carry, nor do they reserve any right as to mines, all which remains to be determined by the laws of California.-(Opinion, February 14, 1856, vol. 7, p. 636.)

Mines of the precious metals belong to the eminent domain of the political sovereignty, as well by the laws of Spain as by the common law of England, and the public law of the United States.-1b.

Where the local law will authorize it, a patent may issue to the purchaser of land at a sheriff's sale.-(Opinion, August 15, 1816, vol. 1, p. 191.)

Land patents may and ought to be withheld where the confirmations have been obtained by fraud. If actually issued, the courts will cancel them.-(Opinion, Nov. 25, 1841, vol. 1, p. 699.)

The issuing of a patent is not so purely a ministerial act as to follow a patent certificate as a matter of course.-(Opinion, October 10, 1825, vol. 2, p. 15.)

Patents should not issue for lands inadvertently sold.—(Opinion, October 22, 1828, vol. 2, p. 186.)

The Commissioner is bound to issue the patent to the original beneficiary, his heirs or assigns, and must, therefore, have satisfactory evidence of assignment before he issues to assigns.-(Opinion, October 13, 1839, vol. 2, p. 276.)

The execution of a patent for land to a soldier in the War of 1812, by the Commissioner of the General Land Office, passes the title, although the same had not been delivered to the patentee.-(Opinion, September 7, 1841, vol. 3, p. 653.)

It is a matter of discretion with the Department as to whom the patent should be delivered.-Ib.

A patent cannot issue to one of two purchasers of a quarter-section of land, or for any unspecified portion of the same. Where such conditions exist as will permit a partition of the land held in common, a patent may be issued to the purchaser entitled after the division.—(Opinion, April 16, 1844, vol. 4, p. 319.)

Pre-emptors for back lands in Louisiana, under the Act of 3d March, 1811, continued by that of 11th May, 1820, which reserved such lands from sale for three years, who made the entry, gave the notice and paid for the same as therein provided, are entitled to patents, although others may have obtained patents for the same land pursuant to private entry.-(Opinion, July 29, 1848, vol. 5, p. 7.)

No patent can be issued by the Commissioner of Public Lands, to any private land claimant in the State of California, until after final decree in the case.-(Opinion, September 18, 1855, vol. 7, p. 491.)

Where lands are confirmed by the Commissioner, described as being " comprehended between" certain limits, but confirmed "to the extent and quantity of four square leagues and for no more, provided, that so much be contained within the boundaries called for by the grant;" held, that the patent cannot issue for more than four square leagues of land, whatever may be the quantity within the bounds designated. (Opinion, April 24, 1856, vol. 7, p. 681.)

A patent.issued under a mistake, in consequence of a Virginia military land warrant being located on lands which had been previously and regularly located by others, is null and void.-(Opinion, June 10, 1857, vol. 1, p. 159.)

in the case of Bagnell v. Broderick, the language of the court is very strong and comprehensive.

I have the honor to be, sir, your obedient servant,
H. S. LEGARE.

Hon. W. Forward, Secretary of the Treasury.

No. 664.

A patent will not be issued to a private purchaser for land to which a valid prior Pre-emption right existed.

DEPARTMENT OF THE INTERIOR,
October 7, 1858.

In the case of William C. Bissell v. Isaiah Ferris, from the Springfield, Illinois, Land Office, which was submitted to this Department by your let

Where the Register at Kaksaskia had issued two certificates for the same land, to two different persons, held that the first had preference.-(Opinion, August 8, 1816, vol. 1, p. 191.)

Patents are unnecessary to complete title to an unsold portion of the confirmed claim. A grant may be as effectually made by law, as by a patent issued in pursuance of law. (Opinion, August 6, 1838, vol. 3, p. 350.)

An Act of Congress confirming land titles of two or more individuals, or granting land, must be taken altogether, and if there be not land enough to answer all the grants, and there be a conflict of claims, it must be reconciled by reference to the report of the commissioners on which the Act was founded; and if two parts of the same Act cannot be reconciled, the latter provisions must prevail.-(Opinion, May 28, 1842, vol. 4, p. 40.)

Intruders on public lands without title, subsequent to Act of March 3, 1807, may be removed under the provisions of the Act of that date, without three months' previous notice. If the marshal fail to effect such removal, upon trial, the president may employ military force.-(Opinion, April 4, 1815, vol. 1, p. 180.)

Intruding settlers on the public lands, may be removed by military force, under Act of March 3, 1807. The United States have, also, all the common law and chancery remedies of individuals, under similar circumstances, for protection and redress. (Opinion, May 27, 1824, vol. 1, p. 471.)

The President may direct the marshal to remove intruders from lands, the title to which has not passed out of the United States.-(Opinion, June 25, 1821, vol. 1, p. 475.)

A patent cannot issue to one of the two purchasers of a quarter section of land, or for any unspecified portion of the same. Where such conditions exist, as will permit a partition of the land held in common, a patent may be issued to the purchaser entitled, after the division.-(Opinion, April 16, 1844, vol. 4, p. 319.)

Although a patent may be void because it was not issued by authority of law, or by an officer duly authorized, yet such patent cannot be impeached by one resting on a naked possession.-Sarpy v. Papin, 7 Missouri Reports, 503.

Where a patent is issued by an authorized officer, the law presumes that all the pre-requisites necessary to its issue were complied with, and irregularity in the conduct of the officer can be inquired into only, upon direct proceedings on the part of the Government.-Allison v. Hunter, 9 Missouri Reports, 741; Barry v. Gamble, 8 Missouri Reports, 88.

The fee of lands sold by the United States, remains in the Government, until transferred by patent, which is a better legal title than a prior entry.-Carman v. Johnson, 20 Missouri Reports, 108.

A patent issued to a fictitious person, is a nullity.-Thomas v. Wyatt, 25 Missouri Reports, 24; Thomas v. Boener, 25 Missouri Reports, 27.

ter of the 18th ultimo, it is shown that said Ferris acquired a right of preemption to the land in controversy, prior to the entry of said land by the party from whom said Bissell purchased. Your decision, approving the action of the Register and Receiver in permitting the entry of said Ferris, is hereby affirmed, and the patent will accordingly be issued to him. I herewith return the papers in the case.

Commissioner of the General Land Office.

J. THOMPSON, Secretary.

An exemplification of a patent certified by the Commissioner of the General Land Office, may be received in evidence, without proof of the loss of the original.— Barton v. Murrain, 27 Missouri Reports, 235.

In Illinois, a patent cannot be impeached by parol evidence, in an action of ejectment.-Bruner v. Manlon, 1 S. 156.

If the officers of the Government give the patent to a party not entitled to it, he is the trustee for the true owner, if the Government give title to a second person, after having granted previously to the first, the court will respect the title of the first grantee.-Stark v. Mather, 1 Walker, Miss. Reps. 181.

Where a certificate called for two sections of land, the holder of it will not be limited to twelve hundred and eighty acres; if the sections contain more, he will be entitled to all the land embraced, within their boundaries, as established by survey. -Fulton v. M'Afee, 5 Howard, Miss. Reps. 751.

Patents.-General rules relative to their delivery.

The general rule is, that the duplicate receipts in all cases must be surrendered before the delivery of the patent; but where the duplicate is fraudulently withheld from the owner, the following course may be pursued: Let the purchaser, after filing an affidavit of the facts, send a notice to the wrongful holder of the duplicate, demanding its return, and stating that he will make immediate application for the delivery of the patent to him. Then let a notice to this effect be published by the bona fide owner once a week, for four weeks, in the newspaper of the district having the largest circulation, of the wrongful detention of his duplicate, and his purpose to apply for the patent in his own name. Upon his filing in the District office a certified copy of such notice and publication, the patent may be delivered, unless good cause should be shown to the District officers why this should not be done; and in that case, they will stay proceedings and call for instructions.-(Commissioner's letter to Register and Receiver, Faribault, August 26, 1857.)

No. 665.

TITLE XIV.

Repayment of Purchase-Money.

Circular.

GENERAL LAND OFFICE,
August 31, 1830.

Gentlemen:-Numerous applications to correct errors in entries of the public lands having been forwarded to this Office without being properly supported by testimony, it is deemed advisable to collect and present in one view all the legislative enactments, of a general character upon the subject, with such explanatory remarks as are deemed necessary.

The acts authorizing corrections of errors in entries are the following, viz: (See Nos, 11, 14, 17, 19.)

These laws are plain and particular in their requirements, but few points being left to the elucidation of official instructions; and a careful attention to them will be sufficient, in most cases, to ensure correctness in acting under them. It may not, however, be improper to remark

1. That the Act of 1819, is intended to afford relief to those persons whose errors in entries have been occasioned by the original incorrect marking by the surveyor, or by the subsequent change or obliteration of those marks, or else by any other error originating either with the surveyor or the land officers. The application of the party should be made under oath, stating particularly the nature and cause of the error, and should be supported by the best corroborative testimony that can be procured. The case is then to be reported, with the testimony, and your opinion thereon, to this Office, for the decision of the Secretary of the Treasury.

2. The supplementary Act of May, 1824, extends the provisions of the Act of 1819, so as to embrace cases where the error was not occasioned by any act of the surveyor or land officers; and provides, that in all cases of error in the entry of a tract of not more than one half section, where the

Instances where there is a deficiency in the quantity of land purchased, and where an entry has been made of land to which another had a pre-emption right, are cases falling within the terms of the Act of 12th January, 1825, and call for repayment.(Opinion of Attorney-General, August 4, 1843, vol. 4, p. 227.)

But in cases of error arising from miscalculations of the amount to be paid, where the money paid has not been returned by the Receiver, the excess should not be paid from the Treasury; but the error should be corrected by the Receiver. Where, however, the excess or over-payment shall have found its way into the Treasury, it cannot be withdrawn, except in strict fulfilment of the requisitions of law, which the “administrative power" cannot control.-1b.

It would not do for the Department to refund money which has erroneously found its way into the Treasury, simply on the ground that it is just that it should be repaid, for the reason that it would require the Department to disregard a most wholesome and salutary restraint, upon the due and strict observance of which the most important interests depend.-(Opinion, September 29, 1843, vol. 4, p. 253.)

An assignee of a pre-emptor is not entitled to a return of the purchase-money.(Commissioner's letter to Register and Receiver, Brownsville, Minnesota, December 10, 1855.)