Phillips v. Sherman

36 Ala. 189

• Court: Supreme Court of Alabama
• Decided: January 15, 1860
• Status: Published

Opinion

A. J. WALKER, C. J.

Joseph H. Young, one of the grantees of the United States in the patent of 10th November, 1854, died before the date of the patent. But, by virtue of the act of congress of 20th May, 1836, the title enured to, and became vested in, his heir. — 5 U. S. Statutes at Large, 31; Schedda v. Sawyer, 4 McLean, 181. The only child of Young was, therefore, a proper party plaintiff in this suit, as the owner of the title nominally bestowed by the patent upon her deceased father.

[2.] By the act of congress of 26th August, 1842, “John Pratt, or his legal representative.” was authorized to enter the locus in quo, at the minimum price of public lands, under his preemption claim. — 6 U. S. Statutes at Large, 865. After the passage of this act, the proper departments of the government of the United States, upon the fullest consideration of the question, decided, that Joseph Young was, within the meaning of the act, the “representative ” of John Pratt; and issued a patent for the land to Young, and to Sherman, who derived his claim from Young. Sherman and the heir of Young, joining in this suit to recover, rest their claim of title upon that patent. The defendant assails the patent, upon the ground that Young was not the “representative” of Pratt, within the true meaning and intent of the act of congress; and that the departments of the government of the United States erroneously adjudged the question as to who was Pratt’s representative. In support of the proposition that the patent was erroneously issued, the defendant adduced the same evidence that was before the commis sioiier of the general land-office, and also before the secretary of the interior on the appeal to him, pending the contestation of the light to a patent.

Now, it is manifest that, under the act of congress of 26th August, 1842, the general government had authority to issue a patent for the land; and that it was the duty of the commissioner of the general land-office, subject toan appeal to the secretary of interior, to determine who was the person entitled to a patent under that act. The decision has been made; the patent has been awarded ; the patent' is not void upon its face; the land was subject to sale, and there was authority to issue a patent. These circumstances existing, it is not permisssible that the patent shall be collaterally assailed in a court of law. Masters v. Eustis, 3 Port. 368; Mitchell v. Cobb, 13 Ala. 137; Crommelin v. Minter, 9 Ala. 594, 607; Wilcox v. Jackson, 13 Peters, 498; Bagnell v. Broderick, 13 Peters, 436; Bates v. Herron, at the last term; McTyer v. McDowell, at the present term.

[3.] A patent had been issued, previous to that of the plaintiffs; but, after reaching the local land-office, and before its delivery, was recalled by the commissioner of the general land-office, and, being deemed erroneous, was subsequently canceled. The authority of the commissioner of the general land-office to revoke an erroneously issued patent before its deliveiy, and to correct its error, is maintained, upon reasoning which we deem conclusive, by the supreme court of the United States, in the ease of Bell v. Hearne, 19 Howard, 252. Therefore, the previous issue of a different patent, which before its delivery was recalled, does not impair the validity of the plaintiffs’ title.

Judgment affirmed.