arise? The title is still in the government, and no right to it has been acquired. Or, suppose the local officers should be satisfied, so as to accept payment and issue a receipt, upon proofs which, upon their face, disclose plain non-compliance with law or the regulations; is the President, by whose patent alone can the title pass, bound to issue that patent? Such instances, and one readily multiplies them on reflection, demonstrate the legislation of Congress in the creation of bureau and Department to be absurd, or that this theory is inadmissible.

In further manifestation of the legislative will, Congress has, for many years, provided a class of officers, whose duty is under the direction of the Commissioner of the General Land Office, to examine cases which have been passed by the local officers, with a view to ascertaining whether the facts warrant approval of the action of those officers by the issuance of a patent. This action has been taken year after year, with full knowledge of the claim of jurisdiction; indeed, in avowed aid and support of the exercise of that jurisdiction. If a doubt could exist of the sufficiency of previous legislation to confer it, this regular course of appropriation would itself be sufficient to endow it with all the vigor of congressional sanction.

But, aside from the long maintenance of this authority by departmental assertion, and its long recognition by Congress, the supreme court has abundantly adjudged its rightful existence in numerous cases, has defined its limits, and itself has acknowledged the duty of obedi ence to the determinations made in its proper exercise. Few questions stand more completely adjudged by that tribunal, almost every effect of the power having been in some form considered. So that it is not surprising that at last the court has been led to use the following language in Steel v. Smelting Co. (106 U. S., 450):

We have so often had occasion to speak of the Land Department, the object of its creation, and the powers it possesses in the alienation by patent of portions of the public lands, that it creates an unpleasant surprise to find that counsel, in discussing the effect to be given to the action of that department, overlook our decisions on the subject. That department, as we have repeatedly said, was established to supervise the various proceedings whereby a conveyance of the title from the United States to portions of the public domain is obtained, and to see that the requirements of differ. ent acts of Congress are fully complied with. Necessarily, therefore, it must consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale. Its judgment upon these matters is that of a special tribunal, and is unassailable except by direct proceedings for its annulment or limitation. Such has been the uniform language of this court in repeated decisions.

And see, Harkness et ux v. Underhill (1 Black, 316); Johnson v. Towsley (13 Wall., 87); Shepley v. Cowan (91 U. S., 340) ; U. S. v. Schurz (102 U. S., 401); Lee v. Johnson (116 U. S., 48).

The extent and quality of this power have been as clearly recognized as its existence has been established. The decision of the Department upon a question of fact is final and conclusive upon the courts. In Shepley against Cowan, supra, in which one party sought to maintain

his claim by showing the falsity of the proofs presented in support of the pre-emption right which the Department had adjudged in the other's favor, the court said, speaking of the action of the General Land Office:

There is no evidence of any fraud or imposition practiced upon them, or that they erred in the construction of any law applicable to the case. It is only contended that they erred in their deductions from the proofs presented; and for errors of that kind, where the parties interested had notice of the proceedings before the land department, and were permitted to contest the same, as in the present case, the courts can furnish no remedy. The officers of the land department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands, with a view to secure rights of pre-emption. If they err in the construction of the law applicable to any case, or if fraud is practiced upon them, or if they themselves are chargeable with fraudulent practices, their rulings may be reviewed and annulled by the courts when a controversy arises between private parties founded upon their decisions; but, for mere errors of judgment upon the weight of evidence in a contested case before them, the only remedy is by appeal from one officer to another of the department, and perhaps, under special circumstances, to the President, (91 U. S., 340).

And see also, Johnson v. Towsley (supra); Quinby v. Conlan (104 U. S., 420); Vance v. Burbank (101 U. S., 514); Simmons v. Wagner (101 U. S., 260); U. S. v. Minor (114 U. S., 243); Baldwin v. Stark (107 U. S., 463); Lee v. Johnson (supra).

And in further acknowledgment of the conclusive power of the land department, it has been determined that no writ of mandamus will lie nor injunction go to interfere with the exercise of that judgment which the law reposes in the Secretary or the Commissioner, while the matter is properly before either for action. Gaines v. Thompson (7 Wall., 347); Secretary v. McGarrahan (9 Wall., 298).

Nor will the courts assume to exercise any jurisdiction upon a case depending in the land office or the Department. Marquis v. Frisby, 101 U. S., 473.

And finally, the court has determined that the term of this jurisdiction expires with the issuance of a patent. Moore v. Robbins (96 U. S., 530); U. S. v. Schurz (102 U. S., 378).

Nothing further can be desired in the way of judicial determination in favor of this jurisdiction. But in many cases by the state courts, it has been upheld. In an able opinion by Chief-Justice Tripp, of Dakota, in United States v. Dudley, published in 1887, these cases have been collated and reviewed. Reference to that opinion will amply satisfy the inquirer. An opinion to the contrary by Deady, J., in Smith v. Ewing (23 Federal Reporter, 741), may be left to its contest with this weight of authority and to the clear perception of its force in another case by that same judge, reported as Aiken v. Ferry (6 Sawyer, 79).

II.

The clear establishment of the jurisdiction of the Department, and of the several propositions above set forth, leads to the easy disposition of the

second point. These cases show that the pre-emption purchaser takes by his final proofs and payment, and his certificate of purchase, only a right to a patent for the public lands in case the facts shall be found by the General Land Office and the Interior Department upon appeal to warrant the issuance of it. Whatever claim to patent he possesses by virtue of his payment and certificate is dependent upon the further 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. This being so, it is plain that the purchaser can acquire from the entryman no greater estate or right than the entryman possesses. The purchaser is chargeable with knowledge of the law, which includes knowledge of this law; and is chargeable with knowledge of the state of the title which he buys, in so far, at least, as that the legal title remains in the United States, subject to the necessary inquiry and determination by the land office and Department upon which a patent may issue. He is not then an "innocent purchaser," so far as there may exist reasons why that patent should not issue. He buys subject to the risk of the consequences of the inquiry depending in the Department. He buys a title sub judice. At the most, it is but an equitable title, the legal title being in the government. It is a familiar rule that the purchaser of an equitable title takes and holds it subject to all equities upon it in the hands of his vendor, and has no better standing than he. Boones v. Chiles (10 Peters, 177); Root v. Shields (1 Woolworth, 340).

It is argued, however, that this is inconsistent with the theory that the land so held is liable to taxation, as the supreme court has determined. But the same court has made this point plain also. It is the equitable title only which is taxable; and in case of a sale for taxes, the tax deed transfers only the right which the holder of the equitable title possessed, subject to all the equities in favor of the government, which existed against that holder. The tax deed, like the vendor's voluntary deed, operates to transfer only the vendor's equitable title. Carroll v. Safford (3 Howard, 441).

This case was referred to and its rulings affirmed in Witherspoon v. Duncan (4 Wall.,) where, after certificate had been issued by the local land officers, and before patent, the land was sold for taxes under the laws of Arkansas. The court, on page 220, say, after the certificate of entry was given, it was the duty of the entryman to see that the taxes were paid. "It is true," continued the court,

that the entry might be set aside at Washington; but this condition attaches to all entries of the public lands.

They took upon themselves the risk of confirmation, and periled their title when they suffered the lands to be sold for non-payment of taxes. It does not appear from the record why the patent was so long delayed; but the claim was finally approved on the original proofs, and the patent, when issued, related back to the original entry. The lands were, therefore, under the laws of the State, properly chargeable with taxes from the date of the first entry, in 1830.

These adjudications, so strongly supporting the plain reason of the matter, leave me in no doubt of the duty of the Department to cancel any entry which has been made contrary to law, or of lands not subject to such entry, or by a person not qualified to make such entry, or where compliance with the legal prerequisites to such entry did not take place, or where by false proofs a seeming compliance was fraudulently estab lished.

Entertaining these views, your decision is hereby affirmed.

PRACTICE-ACT OF JULY 23, 1866-STATUTE.

TAYLOR v. YATES ET AL.

In a case involving the rights of several parties, the General Land Office should pass on the claims of each, so that upon appeal to the Department, the whole matter may be finally determined.

The seventh section of the act of July 23, 1866, does not confer a right of purchase upon one who has bought a mere undivided interest in a Mexican grant without designation by particular description of the land so purchased.

The uniform construction of a statute should not be disturbed unless it is shown to be clearly wrong.

Secretary Vilas to Commissioner Stockslager, March 1, 1889.

I have considered the appeal of Mrs. Ann Taylor from the decision. of your office, dated March 28, 1887, rejecting her application to pur

of the SW.

and the E.

of Sec. 3, S. of the SE.
of the SE. of Sec. 9, W.

chase the S.
of the NE.
of the NE. and W. of the SE. of Sec. 10, T. 1 S.,
4

M., San Francisco, California.

of Sec. 4, the E.

and the W. R. 3 W., M. D.

The record shows that said application was filed February 14, 1884, under the provisions of the seventh section of the act of Congress approved July 23, 1866 (14 Stat., 218).

The land applied for under said act was in part included in the homestead and pre-emption claims of R. J. Yates, Mrs. M. Winslow, S. C. Dean, W. M. Rutherford, J. T. Van Duyn, George W. Reinhart, W. L. Yates, Antonio Joaquin, J. S. Avela, Salvador Altamarino, M. S. Davila, Pedro David and Moses Hopkins. A hearing was ordered, and, by stipulation of all parties, the cases were consolidated, and testimony was submitted by the parties in interest. The hearing was commenced before the local officers on May 2, and concluded on November 14, 1884.

Upon the evidence submitted the local officers found that on July 1, 1855, James Taylor, the husband of the applicant, bought the right, title and interest of one Vallean in the Castro sobrante grant, "to the amount of the 4th of one-twentieth of said grant, less 320 acres," and

paid therefor a valuable consideration; that said Taylor, in 1864, moved on to the tract now claimed by his wife; that the testimony of Mrs. Taylor and her daughter shows that when the purchase was made by her husband the land was inclosed by brush fences and natural boundaries on the lines as now claimed by Mrs. Taylor; that immediately after his purchase, Taylor commenced to build more substantial fences, and continued so to do for about four years, until the whole tract was inclosed with fences, except where the same were unnecessary, on account of the brush, bluffs and deep ravines; that the preponderance of the testimony shows that the fences were not completed until 1871 or 1872; that on September 23, 1880, James Taylor conveyed the land to his wife, and both resided upon the land from 1864 until about October, 1882, when Ann Taylor leased the land to William L. Yates and removed to another county.

The local officers rejected the application of Mrs. Taylor to purchase under said act, for the reason that her husband did not buy any particular tract of land, only an undivided interest in the grant. After rejecting Mrs. Taylor's application to purchase, the local officers proceeded to adjudicate the several conflicting settlement claims. From the decision of the local officers appeals were taken by Mrs. Taylor and seven of the other claimants.

On March 28, 1887, your office examined the case, and rendered a decision affirming the action of the local officers in rejecting the application of Mrs. Taylor to purchase under the seventh section of said act. Your office decision, however, states that

As the claims represented under the homestead and pre-emption laws are all dependent to a greater or less extent upon the validity of Mrs. Taylor's claim under the act of July 23, 1866, it is deemed advisable to act at present upon her claim, and upon its final determination to take up the other claims for solution.

Such practice is not to be commended. Having found that Mrs. Taylor was not entitled to purchase under said act, a decision should have been rendered by your office upon the rights of the other claim. ants, so that, upon appeal, a final determination of the whole matter could be made by the Department.

The record is voluminous, containing more than fifteen hundred pages, and as it now stands presents the anomaly of a case pending in this Department, upon the appeal of one of the parties in interest, while there are a half dozen or more appeals in the same case pending in your office undecided.

The seventh section of said act provides:

That where persons, in good faith and for a valuable consideration, have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same, as according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchasers may pur