claiming under junior patents or titles, until it is set aside or annulled by some judicial tribunal. In England this was originally done by scire facias, but a bill in chancery is found a more convenient remedy." In the case of Mowry v. Whitney, 14 Wall. 440, which was an attempt by a private party to set aside by a bill in chancery a patent for an invention, the court considered the subject rather fully, and said that "the ancient method of doing this in the English courts was by scire facias, and three classes of cases are laid down in which this may be done." The court held that in England "the scire facias to repeal a patent was brought in chancery where the patent was of record; and though, in this country, the writ of scire facias is not in use as a chancery proceeding, the nature of the chancery jurisdiction, and its mode of proceeding, have established it as the appropriate tribunal for the annulling of a grant or patent from the government;" referring to U. S. v. Stone, above cited. The court denied the right of the private party to sustain a suit to annul the patent, and said: "The general public is left to the protection of the government and its officers. * ** * The reasons for requiring official authority for such a proceeding are obvious. The fraud, if one exists, has been practiced on the government, and, as the party injured, it is the appropriate party to assert the remedy or seek relief." In U. S. v. Throckmorton, 98 U. S. 70, the court said: "In the class of cases to which this belongs, however, the practice of the English and the American courts has been to require the name of the attorney general as indorsing the suit before it will be entertained. The reason of this is obvious; namely, that, in so important a matter as impeaching the grants of the government under its seal, its highest law-officer should be consulted, and should give the support of his name and authority to the suit. He should also have control of it in every stage, so that if, at any time during its progress, he should become convinced that the proceeding is not well founded, or is oppressive, he may dismiss the bill." In Moore v. Robbins, 96 U. S. 533, the court, speaking of the issuing of patents for land by the government, said: "If a fraud, mistake, error, or wrong has been done, the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals; and, if the government is the party injured, this is the proper course."

While the cases last cited did not involve directly the power of the attorney general to institute a suit to set aside a patent of the United States, we have had before us quite recently three cases which did involve that power, brought by the United States for the express purpose of setting aside patents for land issued by the government on the ground of frauds or mistakes in their issue. In the first of these, (Moffat v. U. S., 112 U. S. 24, 5 Sup. Ct. Rep. 10,) which was prosecuted by the attorney general, who appeared in this court by the assistant attorney general to argue the case, the decree of the circuit court setting aside the patent, as having been obtained by the fraud of the officers of the land department, was affirmed. No question was made of the right of the attorney general to institute the suit, and conduct it to a successful termination. In the second case (U. S. v. Minor, 114 U. S. 241, 5 Sup. Ct. Rep. 836) a suit was brought in the circuit court for the district of California to set aside a patent for land issued by the government to Minor. The bill alleged that the patent was obtained by the fraud of Minor in making false affidavits, and procuring others to be made, before the officers of the land department, by which he obtained a patent for the land in question. Although the case was certified here by the judges sitting in that court on a division of opinion upon several points, one of which was whether a demurrer to the amended bill should be sustained, no question seems to have been made of the right of the government, by its attorney general, to institute this suit; the appeal on behalf of the United States being argued by the solicitor general, an officer under the control of the attorney general. Some question was,

however, made in the opinion in that case in regard to the right of the attorney general to bring such a suit, where the only result would have been to take the land from Minor, and give it to one Spence, who had a claim upon part of it; the court saying that "the government, in that case, would certainly have no interest in the land when recovered, as it must go to Spence without any further compensation. And it may become a grave question, in some future case of this character, how far the officers of the government can be permitted, when it has no interest in the property or in the subject of the litigation, to use its name to set aside its own patent, for which it has received full compensation, for the benefit of a rival claimant." The court said, however, that the question did not arise in that case, because Spence only had a claim to one-half of the land covered by the patent. It will be seen that the only question thus suggested did not affect the right of the attorney general, in a proper case, to institute and carry on such a suit; and the decree of the circuit court was reversed, on the ground that the case presented was one which justified relief. In the still later case of Iron Co. v. U. S., 123 U. S. 307, 8 Sup. Ct. Rep. 131, the bill was filed in the name of the United States by the attorney general to declare void and cancel 61 patents for as many distinct pieces of land, situated at different places in Las Animas county, in the state of Colorado, amounting in the aggregate to over 9,000 acres. The allegation in that case was that the patent had been obtained by the fraudulent use of fictitious names as grantees of the land, and the case was fought through with great vigor on both sides. It was thoroughly and elaborately considered; and the court said, in regard to these transactions, that they "undoubtedly constituted a fraud upon the United States sufficient in equity as against the parties perpetrating it, or those claiming under them with notice of it, to justify the cancellation of the patents issued to them;" quoting the following language from U. S. v. Minor, above cited: "Where the patent is the result of nothing but fraud and perjury, it is enough to hold that it conveys the legal title; and it would be going quite too far to say that it cannot be assailed by a proceeding in equity, and set aside as void, if the fraud is proved, and there are no innocent holders for value." If the court had entertained the opinion in these cases that there existed in the attorney general no right to institute these suits to set aside patents for lands obtained by fraud, it would have been saved the labor of a protracted investigation in each of them into the facts which were supposed to constitute the fraud; and in the two cases first mentioned the court violated its duty in sustaining the government, and setting aside the patents, if there existed in its judgment no right in the attorney general to institute such suits. We are not insensible to the enormous power, and its capacity for evil, thus reposed in that department of the government. Since the title to all of the land in more than half of the states and territories of the Union depends upon patents from the government of the United States, it is to be seen what a vast power is confided to the officer who may order the institution of suits to set aside every one of these patents; and if the doctrine that the United States in bringing such actions is not controlled by any statute of limitations, or governed by the rule concerning laches, be sound, of which we express no opinion at present, then the evil which may result would seem to be endless, as well as enormous. But it has often been said that the fact that the exercise of power may be abused is no sufficient reason for denying its existence, and, if restrictions are to be placed upon the exercise of this authority by the attorney general, it is for the legislative body which created the office to enact them. We do not think, therefore, that it can be successfully denied that there exists in the attorney general, as the head of the department of justice, the right to institute, in the name of the United States, a suit to abrogate, annul, or set aside a patent for land which has been issued by the government in a case where such an instrument, if permitted to stand, would work serious injury to the United States, and prej

udice its interests, and where it has been obtained by fraud, imposture, or mistake.


One of the difficulties attending the present case, and others of like character which have come before us, in which the authority of the attorney general to institute the suit has been questioned, is that no specific plea has been filed denying this authority, or alleging that the suit as made by the bill, or established by the evidence, does not come within the class of cases in which that officer can exercise this power. There is no plea in this case, and all that is said upon this subject in the answer is in the following language: "If said officers [meaning the president, the secretary of the interior, and the commissioner of the general land-office, who were such at the time this action was begun] had consulted the records, they would have been easily informed of the truth; but the said attorney general is now informed and moved and instigated by the same parties who made the contest in the land department before the issuing of the said patent, and M. G. Cobb, the same attorney who drew the bill herein, and instigated the suit, and conducts the same, was the attorney of said contestants in said proceedings, and has represented said parties as such attorney and counsel from the filing of said objections by said Stearns and Montalva down to the present time. But we are of opinion that since the right of the government of the United States to institute such a suit depends upon the same general principles which would authorize a private citizen to apply to a court of justice for relief against an instrument obtained from him by fraud or deceit, or any of those other practices which are admitted to justify a court in granting relief, the government must show that, like the private individual, it has such an interest in the relief sought as entitles it to move in the matter. If it be a question of property, a case must be made in which the court can afford a remedy in regard to that property; if it be a question of fraud which would render the instrument void, the fraud must operate to the prejudice of the United States; and if it is apparent that the suit is brought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought, and is under no obligation to the party who will be benefited to sustain an action for his use,—in short, if there does not appear any obligation on the part of the United States to the public, or to any individual, or any interest of its own, it can no more sustain such an action than any private person could under similar circumstances. In all the decisions to which we have just referred it is either expressed or implied that this interest or duty of the United States must exist as the foundation of the right of action. Of course, this interest must be made to appear in the progress of the proceedings, either by pleading or evidence; and if there is a want of it, and the fact is manifest that the suit has actually been brought for the benefit of some third person, and that no obligation to the general public exists which requires the United States to bring it, then the suit must fail. In the case before us the bill itself leaves a fair implication that, if this patent is set aside, the title to the property will revert to the United States, together with the beneficial interest in it. It is argued in the brief that this is not true; that in fact the government is but the instrument of one Baker, who married the widow of Abel Stearns; and that Stearns contested the correctness of this survey with others before the land department very actively and energetically, because he had such an interest in the land covered by it that, if it was defeated, he would become the equitable or beneficial owner of the land. This view is supported by some pretty strong testimony, and by the fact that Baker was the man at whose instance the action was begun. When the attorney general required that a bond should be given to save the United States harmless with regard to the costs of these proceedings, Baker was the man who furnished the security, and signed the bond himself. The condition inserted in that obligation recited “that whereas the attorney general of the United States of America has this day filed, at the request of the above

named R. S. Baker, a bill in equity in the name of and on behalf of the United States of America against the San Jacinto Tin Company, ** * now, therefore, if the said Baker shall well and truly save the United States of America harmless from all costs and expenses which may be incurred by or against them in the prosecution of said suit to its final determination, and pay or cause to be paid on demand all such costs and expenses as may necessarily be incurred in such prosecution, then this obligation to be void." Taking all these circumstances together, it raises a very strong implication that Baker expected that, if the patent was set aside, his right to the land covered by it, or to a large part of it, would become paramount. But we are not so entirely satisfied of the want of interest of the United States in the whole or a part of the land which is covered by this patent as to justify us in saying that the bill in the present case ought to be dismissed on that ground.

Coming to the merits of the case, which turn exclusively on the question of fraud in the location of the survey of the grant to the original claimant, we are to observe that the issue is by the pleadings themselves, as well as by the explicit statement of counsel for appellant, limited to actual fraud in the execution of that survey. There is no denial of the validity of the original grant, nor of its confirmation by the land commission, as well as on appeal by the district court of the United States for California and by this court. The justice of a claim for 11 square leagues of land within the surplus, technically called "sobrante," of the San Jacinto tract, is not questioned; nor does the decree which is to be carried out by this survey limit the location of the land otherwise than that it shall not be more than 11 leagues, and that it shall be within the out-boundaries of this surplus. There is a statement in the decree that the measurement of the land thereby confirmed is to be commenced from the line of the Estudillo grant as fixed by the act of judicial possession to him, to which reference is made. We consider this last description as nothing more than a statement that the land of Estudillo previously granted within the boundaries of the tract called "San Jacinto" shall be one of the boundaries of the claim thus confirmed, and that the survey must not cover the grant to Estudillo. Reference is also made to a map contained in the expediente among the papers before the court. The question presented would naturally divide itself into two parts, if there had been any allegation of an unintentional or accidental mistake in the location of the grant; but the plaintiffs in this case place themselves outside of the benefit of this claim of mistake, except as it may be so gross as to aid the belief of an intentional fraud on the part of those who made it. The main issue, therefore, in the case, is on the question of actual fraud committed by those who made and established the survey. The principal foundation on which this fraud is rested by counsel is that all the officers of the government below the secretary of the interior who had anything to do with the making, considering, confirming, or ratifying of this survey were interested in the claim; that the motive of the fraud was to include within the survey certain lands which were then known to contain mineral ores, believed to be immensely valuable; and that for this purpose the survey was distorted and wrenched from its proper place in order to cover these mineral deposits. As will be shown hereafter most of the persons charged with having such interest, and with being in position to influence the location of the land by the surveyor, never had any interest in it at all until after the survey was made and confirmed, and the patent issued to the claimant. If this be true, of course they were under no temptation to do wrong, and the fraudulent motive attributed to them could have had no existence.

Mr. Edward Conway, who had previously bought the property and received the conveyance of the title from the claimant before the patent issued, asserts in his testimony that at the time the survey was made and was pending before the land-office he was the only owner of the property, and that no one had any interest, equitable or otherwise, in it but himself. After this he organ

ized a corporation, to which the title of the property was conveyed, which undertook to work the tin mines found upon it, and most of these persons so liberally charged with fraud in the survey are those who became stockholders therein. The main instrument of this fraud, according to the theory of plaintiff's counsel, was Conway, who, it is charged, owned the whole or at least the predominating interest in the grant at the time the survey was made. At that time he was chief clerk in the office of the surveyor general of the United States for California, and during the period when it was under consideration therein, as well as in the general land-office, and before the secretary of the interior. It is charged that he was often the acting surveyor general, and that this survey was made under his control and direction while he was thus interested as owner of the claim. It is also charged that George H. Thompson, a deputy-surveyor, acting under the surveyor general and said Conway, intrusted with the duty of making this particular survey, was also interested in the claim with Conway, as well as one Hancock, at some time a clerk in the surveyor general's office. It is asserted, further, that the survey was not actually made upon the ground, but, as a matter of fact, in the office of the surveyor general by said Conway, Thompson, and Hancock, solely for the purpose of surreptitiously securing letters patent upon the land described and included in the survey and plat, the motive in mislocating said land being that these parties believed that the land so surveyed contained valuable lodes of tin and other mineral ores. The deposition of Conway was taken during the progress of the suit. He was then 60 years old. He states in that deposition that at the time it was given he had no interest whatever in the San Jacinto Tin Company, or in the lands which were the subject of controversy; that he had long since parted with his shares in the stock of that company, some of which were sold for assessments which he was unable to pay. He gives a history of his connection with the claim, and with the land-office during its pendency before it, and also states the connection that other parties sustained to this transaction who are asserted to have been interested in it during that time. It seems to be a fair and candid statement of all the facts about which he was interrogated. He contradicts himself nowhere during a long examination and cross-examination, and he is not any where successfully contradicted by other testimony in the case. He appears to have been sincerely anxious to tell the whole truth, and, if his statement is to be believed, he had no interest to do otherwise.

Mr. Conway states that during the years 1864, 1865, and 1866 he was chief clerk in the office of the United States surveyor general for California, in San Francisco; that he entered that office in the fall of 1857, resigned in December, 1866, and again entered it on January 1, 1868, and remained there until December, 1869; his longest service being as chief clerk, although he commenced at a lower grade. He served under surveyors general Mandeville, Beale, and Upson, and during the entire terms of the two latter with the exception of the year stated. He testifies that the approval of surveys could only be made by the commissioner of the general land-office, who was furnished with the field-notes and plats which were certified to be correct by the surveyor general, who also made a report of his action for the approval or disapproval of that officer; that the first connection he had with the sobrante San Jacinto Viejo y Nuevo was in 1863; that he then told Surveyor General Beale that he wished to resign his place as chief clerk, as he had offers of other business, among which was one from Mr. Hancock, then a major in the army of the United States, who informed him that he had control of this sobrante, and also of the Rancho San Jacinto Nuevo,-that is, of the metals that were in those ranchos,—and he wished him to take charge of the business. Throughout the whole of this story the early connection of Hancock and Conway with the sobrante claim seems to have been under a right purchased by Hancock from Mrs. Aguirre of the mineral products thereof, without any claim to a

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