patent as against a subsequent patentee.3 No one can maintain an equitable right to any portion of the public land as against the patentee which would not be good against the government. And a license from the government cannot be implied from mere forbearance towards one in possession, whether he be asserting a right of possession or not.5

1 Bagnell vs. Broderick, 13 Pet. 450.

2 Yosemite Valley Case, 15 Wall. 77.

Wilcox vs. Jackson, 13 Pet. 516; Irwin vs. Marshall, 20 How. 558; Fenn vs. Holme, 21 How. 481; Lindsey vs. Miller, 6 Pet. 672; Gibson vs. Chouteau, 13 Wall. 72.

4 Boggs vs. Merced M. Co., 14 Cal. 279.

5 Ibid. Fremont vs. Seals, 18 Cal. 433; Ah He vs. Crippen, 19 Cal. 491.

§ 64. When patent void.—And yet the mere issue of a patent does not in every instance divest the title of the United States. In order to have this effect it is as essential that there should be a grantee who accepts the patent, as it would be in case of a private grant. Therefore a patent which has not been delivered may be withdrawn by the Secretary of the Interior. At common law, if, when the patent is issued, the applicant is not alive, the title does not pass, and the patent is a nullity, for the same reasons that a conveyance to a deceased person would be inoperative.2 Grants, whether private or public, to deceased persons are as ineffectual as though made to a fictitious grantee. This result is only avoided by the following statutory provision, which is a wise precaution, rendered expedient by the lapse of time which necessarily intervenes between the application for a patent and its issue: " * * * In all cases where patents have been, or may hereafter be, issued, in pursuance of any law of the United States, to a person who has died or who shall hereafter die before the date of such patent, the title to the land designated therein shall inure to, and become

vested in, the heirs, devisees and assigns of such deceased patentee, as if the patent had issued to such deceased person during life."4 This statute leaves the title to pass as though it had been fully vested in the patentee during life.5 A patent issued by the executive department of the general government to land which has, by act of Congress, been reserved from sale, is void, and may be canceled at the suit of the United States. But the fact that the patent is issued to one person on a location and survey made in the name of another does not affect the validity of the grant.7 All presumptions are in favor of the hypothesis that the officers of the executive department of the United States properly performed their duties in issuing the patent, and so it cannot be collaterally attacked and declared void. It requires a direct proceeding for that purpose.8 But this rule does not seem to prevent an attack upon a patent issued by the state to a portion of the public land without authority of law, in an action between the state's patentee and one who has become equitably entitled to the land by compliance with the laws of the United States.9 And it has been decided that a patent which was obtained pending adverse proceedings on a mining application was void as having been issued without authority.10

1 Maguire vs. Taylor, 8 Wall. 650.

2 Galt vs. Galloway, 4 Pet. 345; McDonald vs. Smalley, 6 Pet. 261; Galloway vs. Finley, 12 Pet. 298; McCracken's Heirs vs. Beale, 3 . K. Marsh. 210; Thomas vs. Wyatt, 25 Mo. 26.

3 Davenport vs. Lamb, 13 Wall. 418.

4 Act of Congress, May 20, 1836.

5 Lessee of French vs. Spencer, 21 How. 228.

6 United States vs. Stone, 2 Wall. 525.

7 Brown vs. Huger, 21 How. 305.

8 Collins vs. Bartlett, 44 Cal. 371; Miller vs. Dale, 44 Cal. 562. But then void on its face may be collaterally attacked; St. Louis melting, &c. Co. vs. Kemp; infra, § 65, note 6.

9 Rosecrans vs. Douglas, 52 Cal. 213.

10 Rose vs. Richmond M. Co., 2 Col. Law Rep. 7.

§ 65. Relief, where obtained by fraud. -It is the settled doctrine of the Supreme Court of the United States, in which respect it is followed by all other courts of general equity jurisdiction, that when a patent has been obtained by fraud practiced upon the officers of the government, equity will relieve parties who have a legal right or title to the property.1 But in an action of ejectment, fraud in the survey of the premises or procurement of the patent, cannot be collaterally set up by one who has no equities which he could assert against the government.2 If the right asserted adversely to the patent title is claimed by one on the ground of prior possession and improvement, with the knowledge and acquiescence of the applicant for patent, so as to operate as an estoppel in pais to divest the title after patent obtained, it must appear (1) that the party making the admission, by his declaration or conduct, was apprised of the true state of his own title at the time of the active or passive acquiescence; (2) that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud;4 (3) that the party setting up the estoppel was himself not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge, and (4) that he relied directly upon such admission, and will be injured by allowing its truth to be disproved.5 The relief which a court will grant is not always by avoiding the patent, even when obtained by fraud. If it be issued to the wrong person, or the one not equitably entitled to receive it, the proper and most efficacious remedy is by judicial transfer of the title.6

1 Lytle vs. Arkansas, 9 How. 328; Bernard vs. Ashley, 18 How. 44; Garland vs. Wynn, 20 How.6; Johnson vs.Towsley, 13 Wall. 72. 2 Gaines vs. Nicholson, 9 How. 364; Jackson vs. Lawton, 10

Johns. 24; Field vs. Sebury, 19 How. 332; Moore vs. Wilkinson 13 Cal. 478; Boggs vs. Merced M. Co., 14 Cal. 279.

3 Whitaker vs. Williams, 20 Conn. 104; Boggs vs. Merced M. Co 14 Cal. 279; Delaplaine vs. Hitchcock, 6 Hill (N. Y.) 16.

4 Commonwealth vs. Maltz, 10 Barr (Pa.) 531; Copeland vs. Cope land, 28 Me. 539; Brewer vs. Boston, &c. R. Co., 5 Metc. 479; Bogg vs. Merced M. Co., 14 Cal. 279.

5 Boggs vs. Merced M. Co., 14 Cal. 279; Moye vs. Yappen, 23 Ca 306; Kelley vs. Taylor, 23 Cal. 11; Maine Boys' T. Co. vs. Boston 1 Co., 37 Cal. 40.

6 Silver vs. Ladd, 7 Wall. 219. In a very recent case—an action a law for the recovery of possession of a portion of a patented place claim-the following points were made for reversal of judgment i favor of defendants: (1) Error in admitting the record of proceed ings in the land office to impeach the validity of the patent. (2 Error in instructing the jury that a patent for a placer claim since the Act of 1870, could not embrace in any case more tha one hundred and sixty acres. (3) Error in instructing the jur that the owner by purchase of several claims must take separat proceedings upon each one in order to obtain a valid patent and that it was not lawful for him to prosecute a single appli cation upon a consolidation of several claims into one, or for th land officers to allow such application and to issue a patent there on. These objections were held well taken, judgment was re versed and the cause remanded. The grounds of the decision, a stated in the opinion, are that the lands conveyed, being admitte to be portions of the public domain not reserved from sale, th land department had undoubted jurisdiction to determine all ques tions of compliance with the law, so as to decide judicially whethe the applicant was entitled to the patent applied for. The pater being regular on its face, it could only be impeached by a direc proceeding for that purpose in the name of the United States, o in the name of a party aggrieved by the granting of the patent, an who could connect himself with the original source of title, so a to show that his rights were injuriously affected by the existenc of the patent. Such proceeding must be in a court of equity. I the course of the opinion a distinction is made between the term "location" and "claim,” as used in the statute with reference t

nantity of ground that may be included in one "location, that a patentable “claim” may include several contiguou ons, regardless of the number of acres. As to the conclu Less of the patent as evidence in a collateral proceeding, c regularity of its issue, the case of Minter vs. Crommeliu (1

How. 87) is cited. So, also, are the cases of Hoofnagle vs. Anderson, 7 Wheat. 212; Boardman vs. Reed, 6 Pet. 328-342; Bagnell vs. Broderick, 13 Pet. 436-448; Johnson vs. Towsley, 13 Wall. 72; Moore vs. Robbins, 96 U. S. 530-535. As showing the exceptions to this doctrine, based upon a want of jurisdiction in the land department to act, the principal cases cited are: Polk's Lessee vs. Wendell, 9 Cranch, 87; Patterson vs. Winn, 11 Wheat. 380. The general doctrine is thus summed up: "A patent, in a court of law, is conclusive as to all matters properly determinable by the land department, where its action is within the scope of its authority; that is, where it has jurisdiction under the law to convey the land." St. Louis Smelting and Ref. Co. vs. Kemp et al., U. S. Sup. Ct. (March 6, 1882.) Opinion by FIELD, J. MILLER and HARLAN, J. J., dissenting. In a still more recent case in the Supreme Court of Nevada, a patent was declared void in a proceeding at law. The following points were decided: 1. That the land department has no jurisdiction to determine whether a suit in support of an adverse claim is prosecuted with reasonable diligence (citing Elliott vs. Piersal, 1 Pet. 340. Opinion by SCHURZ, Sec. of Int., in Iowa Min. Co. vs. Bonanza Min. Co., Sickle's Min. Laws, 290. Opinion by CHANDLER, Sec. of Int., Sickle's Min. Laws, 296). 2. That courts have jurisdiction to review the action of officers of the land department (citing Johnson vs. Towsley, 13 Wall. 72). 3. That where a patent has been issued to a subsequent locator, pending adverse proceedings by a prior locator, such patent was void for want of jurisdiction in the land office to issue it (citing U. S. vs. Chapman, 5 Sawyer, 528; Polk's Lessees vs. Wendall, 9 Cranch, 87; Stoddard vs. Chambers, 2 How. 285; Morton vs. Nebraska, 21 Wall, 660; Sherman vs. Bruick, 93 U. S. 216). 4. That by the prior location and pendency of the adverse proceeding, the land was withdrawn from sale. 5. That respondents (defendants below) having made application, and plaintiff having instituted adverse proceedings, defendant.could not obtain a valid patent to the same ground by a second application in a different name, pending the adverse suit, although no adverse claim was filed to the second application. 6. That a patent issued without jurisdiction could be declared void in an action at law (citing Patterson vs. Tatum, 3 Sawyer, 164-73; Patterson vs. Winn, 11 Wheat. 380; Cooper vs. Roberts, 6 McLean, 93). 7. That the court could not render a decree declaring a trust with respect to the patented property in favor of appellants (plaintiffs) and order a conveyance by the fraudulent patentees, where the patents were absolutely void, for the reason that the title to the property never passed. (Distinguishing from Johnson vs.