February 2, 1884, the American Emigrant Company appealed to your office; which, July 9, 1884, affirmed the decision of the local officers, and therefore held for rejection the claim of the State of Iowa and those holding under it, under the swamp-land grant. From said decision the American Emigrant Company appeals to the Department-their appeal being based upon the following grounds:

1. The land is not subject to timber-culture entry, because not "public land."

2. Ringsdorf has no "interest" in the land and cannot contest its swampy character.

3. The land was and is swamp land.... as shown by the evidence in the case.

Referring first to the point last above mentioned: after a careful examination of the testimony, I concur in the opinion expressed in the decision of your office that the tract in question is not, and was not at the date of the swamp land act of September 28, 1850, "swamp land" within the meaning of said act.

It is competent for the government to contest the allegation of the swampy character of the land, regardless of Ringdorf's interests or application; so it is not necessary to decide whether or not it was competent for Ringsdorf to institute contest. But as it appears that Ringsdorf directed the attention of the government officers to the fact that the land in question was not swampy in character, and paid the expense of the contest, and as he has an application now on file, and not acted upon, said application will now properly come before you for action.

VOID PATENT NOT DELIVERED

WILLIAM H. McLARTY.

A patent, issued in contravention of the record, is without authority and void, and will not be delivered by the Department.

Secretary Lamar to Commissioner Sparks, April 28, 1886.

I am in receipt of your letter of the Sth instant, transmitting the papers pertaining to the issuance of patent to William H. McLarty for the E. of the SE. of Sec. 29, T. 1 N., R. 14 E., Stockton, California, requesting that proceedings be instituted to have said patent annulled, for the reason that it should have issued for only the NE. of SE. † of said section.

Accompanying your letter is also the application of John Mullan, Esq., attorney for the widow of the late William H. McLarty, for the delivery of said patent, which has been returned to your office by the local office at Stockton.

It appears from the record in this case that on October 25, 1871, McLarty made cash entry for the E. of the tract aforesaid. On Janu

ary 23, 1873, said entry was suspended, for the reason that the township plat showed that the village of Montezuma was situated upon the land in question. McLarty was thereupon required to make publication of notice to all parties concerned to show cause why the entry aforesaid should not be patented. A hearing was the result, and it was thereupon decided by the Secretary of the Interior, October 24, 1884, that the entry of McLarty for the SE. of said SE. was illegal, and said entry for that part of said tract was thereupon canceled, and McLarty was permitted to enter for the remaining portion. On July 27, 1885, your office, in issuing patent under said decision, inadvertently issued to McLarty patent for the whole tract embraced in his entry, whereas it should only have issued for the NE. of the SE. of the section aforesaid, and forwarded the same to the register and receiver at Stockton, California, to be delivered to the widow of said McLarty, but it was recalled by your office before such delivery.

The widow of said W. H. McLarty now makes application for the delivery to her of said patent, basing her application on the principle decided in the case of United States v. Schurz (102 U. S., 378).

In the case of United States v. Schurz, McBride after the five years of residence and cultivation required by law, submitted final proof, which the Commissioner found to be in all respects in full compliance with the law, and as such entitled McBride to a patent; that in accordance with such finding a patent for the tract was issued and transmitted to the local officers for delivery to McBride, but subsequently returned to the Commissioner of the General Land Cffice. The land claimed by McBride was within the incorporated limits of the town of Grantville, and without this knowledge the local officers admitted McBride's entry. McBride made final proof in 1874. In February, 1877, the town authorities of Grantville applied to make townsite entry, which was refused, because the land was covered by McBride's entry. An application was then made to have McBride's entry canceled as illegally and improvidently allowed. This application was duly forwarded to the Commissioner of the General Land Office; but prior to action thereon a patent was issued, and transmitted for delivery to McBride. Subsequently, on taking up the matter of contest, the claim of McBride was rejected and the undelivered patent canceled; and McBride applied for a writ of mandamus to compel its delivery.

On this state of facts the court held that "when the officers whose action is rendered by the laws necessary to vest the title in the claimant have decided in his favor, and the patent to him has been duly signed, sealed, countersigned, and recorded, the title of the land passes to him, and the ministerial duty of delivering the instrument can be enforced by mandamus."

It will be seen that the principle upon which this decision rests is, that the authority of the Department to issue the patent was predicated upon a decision, judicial in its character, awarding the land so patented. to McBride.

Again, the court says: "Here the question is, whether this land has been withdrawn from the control of the Land Department by certain acts of other persons, which include it within the limits of an incorporated town. The whole question is one of disputed law and disputed facts. It was a question for the land officers to consider and decide before they issued McBride's patent. It was within their jurisdiction to do so. If they decided erroneously, the patent may be voidable, but not absolutely void."

Speaking in reply to the position assumed by the government, that the land claimed by McBride not being subject to homestead entry, that the patent therefore being void, and that the law will not compel the Secretary to do a vain thing by delivering the patent, the Court says: "We are not prepared to say that if the patent is absolutely void, so that no right could possibly accrue to the plaintiff under it, the suggestion would not be a sound one. But the distinction between a void and voidable instrument, though sometimes a very nice one, is still a well recognized distinction on which valuable rights often depend."

The Chief Justice, with whom concurred Mr. Justice Swayne in dissenting from this opinion, said: "There are very few, if any, of the general principles of law so well stated, in the opinion of the court, to which I do not give my assent....I agree that when the right to a patent has become complete, the execution and delivery of the patent itself are mere ministerial acts of the officers charged with that duty; and I further agree that when the right to a patent has been determined, and the patent has actually been signed, sealed, countersigned, and recorded, no actual delivery is necessary to pass the title."

It is very evident that the majority of the court considered that the right of McBride to the land claimed had been adjudicated before the issuance of patent, while the Chief Justice regarded the question as pending before the Department when the patent was executed. The inference is therefore plain that the right of McBride to demand the delivery of the patent rested upon the decision of the officers of the Land Department awarding him the tract, and in effect deciding that it was subject to McBride's homestead entry.

When the record upon its face shows that a patent could lawfully issue for the tract claimed a patent issued thereon is not void, although it might for causes not apparent on the face of the record be voidable; but when the record does not show such authority a patent issued thereon is void.

1

In this case the record not only fails to show that McLarty was entitled to patent for the SE. of this quarter-section, but the record of the proceeding upon which alone he can claim the right to patent, shows that the right to this tract was directly adjudicated against him, in a hearing ordered to determine his right to this part of the tract. A patent issued for the entire E. of said quarter-section was wholly without authority, and therefore void, and I see no reason why the patent now in possession of the Department should not be withheld, and that

patent issue in conformity to the decision of the Department canceling the entry of McLarty for the SE. 4, and allowing his entry for the NE. of said quarter section.

You will therefore inform Mr. John Mullan, attorney for the claimant, of this decision, and issue patent in accordance with this decision when called for.

DONATION CLAIM-ACT OF 1854.

JOHN WALLACE.

Under this act settlement and residence should be contemporaneous, and the settlement must have been commenced within the time specified in said act.

Secretary Lamar to Commissioner Sparks, April 29, 1886.

I have examined the appeal of John Wallace from the decision of your office, dated November 29, 1884, holding for cancellation his donation claim, notification No. 300, certificate No. 185, for the SE. † of SE. of Sec. 29, N. of the NE. and the SE. of the NE. of Sec. 32, T. 24 N., R. 32 E., Santa Fe land district, New Mexico Territory. Said claim was held to be invalid in its inception, because the proof submitted showed that settlement and cultivation were begun on said tracts on June 1, 1874, and not within the time required by law.

The second section of the act of Congress approved July 22, 1854 (10 Stat., 308), was carefully considered by my predecessor, Secretary Teller, on November 23, 1882, in the case of Juan Rafael Garcia (1 L. D., 287), and it was held therein that said act required that residence and settlement should be contemporaneous, and that settlement upon the tract claimed as a donation must have commenced within the time limited by said act, to wit, January 1, 1858. That ruling was adhered to in the case of the Atlantic and Pacific Railroad Company (2 L, D., 522), and again on November 18, 1884, in the departmental decision in the case of Florentino Padia, and no good reason is given for overruling the same.

The decision of your office is accordingly affirmed.

PRE-EMPTION-SETTLEMENT-ABANDONMENT.
HUDSON v. DOCKING. (ON REVIEW.)

Settlement made by entering through a fence partially enclosing the land, though with the permission of the owner of such fence, but with full knowledge of the prior existing possession, improvements and recorded claim of another, is in violation of the Atherton-Fowler doctrine.

Evidence showing that the claimant has persistently asserted his right in the local courts, is admissible as against the charge of abandonment.

Secretary Lamar to Commissioner Sparks, April 29, 1886.

I have before me a motion for review of my decision of January 20, 1886, in the case of Thornton Hudson v. Richard Docking (4 L. D., 333), awarding the land in controversy to Hudson.

Docking's contest allegation was, failure to reside and cultivate as required by the pre-emption law. My said decision held that, as the land was used for grazing purposes, for which it was best adapted, Hudson had cultivated all that the law required. And it held that, although Hudson's residence was not actually continuous from date of filing until the spring of 1883, it was legally sufficient, in view of the suspensions of the plats during this period, and that his proofs of continual residence thereafter were not overthrown by the contestant.

There are five assignments of error in this motion, which I will examine in their order.

The first is a general allegation of error in the award. The accompanying argument is substantially as follows: That in view of Docking's legal entry on the land, and his adverse claim, Hudson should have been held to a strict compliance with the law in the matter of residence. To this I reply: First, that I have grave doubts about the lawfulness of Docking's entry upon the land, which was through a fence partially enclosing it; and although this was with the permission of the owner of the fence, it was with the full knowledge of Hudson's possession and improvements, and of his recorded claim. I incline to the opinion that Docking's entry was in violation of the ruling in Atherton v. Fowler (96 U. S., 513), and of the several cases in the Supreme Court enforcing it.

Secondly, I remark that the so-called "liberal" ruling upon Hudson's showing of residence concerned a period anterior to Docking's said entry, and when he had no adverse claim to the land. Hence the first assignment of error is not well taken.

The second error assigned is that said decision is contrary to the law and the facts. In the accompanying argument, the law is stated to be that "continuous compliance with all the requirements of the preemption law is essential, and failure therein will not be overlooked except under urgent circumstances, and (for) controlling reasons." Admitting this to be the law, it is plain that said decision did not depart from it, for it found urgent circumstances and a controlling reason in the fact that the government had kept the plats suspended, and prevented Hudson from proving up, for some five years. The argument before me does not deny this to be the fact, or that it offers a satisfactory reason for my ruling upon the sufficiency of Hudson's compliance with the requirements of the statute during said period. No error of either fact or law is pointed out in the findings relating to the period after the restoration of the plat. Consequently there is no showing of error in either the facts or the law upon which the decision was based. The third ground of error assigned is the admission of testimony in relation to several law suits in the local courts respecting title to this land. This testimony was admitted as evidence that Hudson had not abandoned the claim. The fact that there had been such suits was all that was used of the testimony, and it certainly was entirely competent evidence for the purpose indicated.