Megerle v. Ashe

By the Court, Rhodes, J. The plaintiff claims title to the premises in controversy through a patent issued to him by the United States, September 1, 1863; and the defendants claim title under a patent issued by the State of California, January 8, 1862, to Terry, the grantor of Ashe. The plaintiff having introduced his • patent rested, and thé defendants then offered in evidence the patent from the State to Terry, and in connection therewith offered to prove by independent evidence that the statement and recitals in the patent were true, which were in substance that the land had been properly selected and located by the State, as a part of the five hundred thousand acres of land granted to the State, by the Act of Congress of September 3, 1841, and that Terry was entitled to receive a patent from the State for the lands described in the patent. The premises described in the two patents were identical. The Court excluded the patent and the evidence offered in connection with it, and the defendants excepted.

In support of the ruling of the Court the plaintiff advances two propositions : “ First, that a United States patent is conclusive evidence of legal title in the patentee in an action at law as against everything except a prior patent from the same source of title; and second, that a patent of the United States cannot be attacked except for fraud or mistake, and for those only in the United States Courts.” If the first proposition cannot be maintained the consideration of the second will be unnecessary, for if the patent is not absolutely conclusive it will be deemed to have been issued without authority of law— [327]through fraud or mistake—as against a title that passed from the same source of title prior to the date of the patent. The first proposition assumes that, the title of the United States can pass only by a patent, for the learned counsel would not contend that the patent would be conclusive as against a prior title derived from the United States simply because the title did not issue in the form of a patent. This assumption stands opposed to a long series of decisions of the Supreme Court of the United States, as well as that of several of the States. In Rutherford v. Greene’s Heirs, 2 Wheat. 196, in which the title of General Greene to the twenty-five thousand acres granted to him by the Act of the Legislature of North Carolina, was in isssue, it being objected that the grant was not complete, because not attested by an instrument having the seal of the State attached. Mr. Chief Justice Marshall, in delivering the opinion of the Court, said that “ the Court would certainly have thought it unnecessary to advert to it (the objection) had not the argument been urged repeatedly, and with much earnestness, by counsel of the highest respectability.” A legislative grant is as effectual to pass the title to lands, in all respects,and for every purpose, as a grant evidenced by a patent. (Lessieur v. Price, 12 How. 59 ; Kernan v. Griffith, ante, p. 88 ; Summers v. Dickinson, 9 Cal. 554; Owen v. Jackson, 9 Cal. 322.) The patent, therefore, being of no higher grade, as evidence of title, than a legislative grant, is not conclusive as against a person claiming under a grant made by the legislative department prior to the adverse patent. It may be remarked, also, that the Act of Congress makes no provision for the issuing of a patent to the State or her grantees, and if one should be issued it would amount to no more than a further assurance.