Mr. Justice Miller,
after stating the case, delivered the opinion of the court.
Some question was made, on the argument in this court, as to the effect of the answer as evidence, and the practice in the Court -of King’s Bench, in England, has been referred to as making the return 'to -the writ conclusive, or at least evidence, of all it states. We are'relieved of any difficulty on this point by the stipulation of the parties.
No writ of mandamus, alternative or otherwise, was issued. There was, therefore, no technical return, and in strictness the rule applicable tc such a writ does not apply. If, however, it could be held that the answer to the rule to show cause stands in the place of a return to a writ of mandamus, the parties have voluntarily made their Own issues, and stipulated as to the evidence which shall be considered by the court.
By this stipulation the allegations of the original petition, except one which is specified, are to be taken as true. Certain other facts are then set out. It is then added that all other matters stand upon the original and supplemental petitions, the answer, and replication, and that there was no other or further proof offered by either party. As the replication distinctly put in issue every paragraph of the. answer, as no evidence was offered in support of the answer, and as the rule of the court is [393]*393recited which makes the replication in this case' a denial of the substance of the pleading to which it relates, we must exclude the supplemental petition and the answer of the respondent as evidence, and decide the case on the allegations of the original petition and the facts stipulated in the agreed case.
We are met at the threshold of this inquiry by a denial of the authority of the Supreme Court of the District of Columbia' to issue a writ of mandamus, as an original process.
The argument is, that the jurisdiction of that court over this class of subjects is governed by sect. 760 of the Revised Statutes relating to the District of Columbia. That section enacts that “ the Supreme Court shall possess the same power and exercise the same jurisdiction as the circuit courts of the United States.” As this court decided in McIntire v. Wood (7 Cranch, 504) and McClung v. Silliman (6 Wheat. 598) that the circuit courts of the United States possessed no such power, the argument would be perfect if no other powers on that subject existed in the Supreme Court of the District than what is conferred by the .above section.
This court, in Kendall v. United States (12 Pet. 524), had under consideration the act of Feb. 27,1801, organizing originally the courts of this District. It was held that the clause of the act declaring the laws of Maryland to be in force at that date in the part of the District ceded by her invested the Circuit Court, as it was then called, with this very power, because it was a common-law jurisdiction, and the common law on that .subject was then in force in Maryland. This proposition has been repeatedly upheld by the court since that time, and up to the date of the revision it. was no longer an open question that in' a proper case the court had authority to issue the writ.
. It is now said, however, that this section being enacted as of the,first day of December, 1873, defines the jurisdiction of the Supreme "Court of the District as governed by the powers of the circuit courts of the United States over the same subject .at that date, at which time it is clear these latter courts had no such power; and that, as the revision repealed all other laws on the same subject, the act concerning the law of Maryland no longer applied to the case. •
[394]*394This leaves out of the process of reasoning the ninety-second section.of the revision, which declares again that “the laws of the State of Maryland, not inconsistent with this title, as the same existed on the twenty-seventh day of July, 1801, except as since modified or repealed by Congress or by authority thereof, or until so modified • or repealed, continue in force within the District.” Thus the argument is precisely the same 'as it was in Kendall v. United States, for it,was urged there, as here, that as the act' creating the court measured its jurisdiction by that of the circuit counts of the United States, which had no such jurisdiction, there could be none in the former ; to which the court replied, the provision which continued in force the laws of Maryland.
The revision has merely separated the different sections of the act of Feb. 27, 1801, and placed part of - it in sect-. 760 and part of it in sect. 92. • Neither provision is Repealed, and we think that both of them are retained, with the construction placed on them by this court in Kendall v. United States and the. subsequent cases. But this question would seem to be -set at rest by'the.'act of 1877, “to perfect the revision of the Statutes of the United States, and of the statutes relating to the District of Columbia.” .The act amends sect. 763 of the Revised Statutes relating to the District of Columbia, by enacting that •“ said courts shall have cognizance of all crimes and offences committed within said District, and of all cases in law and equity between parties, both or either of which' shall be resident or bé found within said-District, and also of all actions or suits of a civil nature at common law or in equity, in which the United States shall be plaintiffs or complainants.” 19 Stat. 258.
We are .of opinion that the authority to issue-writs of mandamus in cases in which'the parties are by "the common law entitled to them is vested in the Supreme Court of the Dis’-trict of Columbia.
We proceed to inquire whether the relator has made such acase.
If the relator was entitled to the possession of th,e patent as his "property, and it . was the plain duty of the Secretary to deliver' it to him when -demanded,"then, under all the author[395]*395ities, and especially the decisions of this court, he is entitled to the remedy he asks. From the ease of Marbury v. Madison (1 Cranch, 137), down to the present time, such has been the settled doctrine of this cc irt. And though it may be said that the opinion of Mr. Chief Justice Marshall'in that case was not necessary to the decision made, which was that this court had no original jurisdiction in that case, the principles of the opinion have since been repeatedly recognized and acted upon in .this court, and the ease cite;, with approval in its definition' of the circumstances under which persons holding public offices will be compelled to perform certain duties which are merely ministerial. Kendall v. United States, 12 Pet. 524; Decatur v. Paulding, 14 id. 497; Kendall v. Stokes et al., 3 How. 87; Commissioner of Patents v. Whiteley, 4 Wall. 522.
. The next objection to issuing the writ which we are called to consider is tliat-the Secretary, in deciding whether he would' deliver the patent to McBride or not, was called upon to exercise a judgment and discretion on the case presented to him which were not merely ministerial, but. which were rather judicial in their character, and in regard to which many matters were to be considered, — such as the validity of the title conferred by the .patent, che circumstances under which it was signed, sealed, and recorded, and the conflicting rights 6f other parties to the lands covered by it. In short, that this execution of the patent concluded nothing, and the authority of the Secretary and the Commissioner of the General Land-Office to deal with the whole subject, including the relator’s right to the lands, remained unaffected by the patent. Whether this be so or 'not must depend upon the authority conferred by Congress upon those officers, and the effect of the patent in the stage which it' had reached when the demand for its possession was maae by McBride.
The Constitution of the United States declares that Congress shall have power to dispose of and make all needful rules and'regulations respecting the territory and other property belonging to the United States. Under this provision the sale of the publib lands was placed by statute-under the control of the Secretary of the Interior, To aid him in- the performance of this duty; a bureau was created, at the head of which [396]*396is the Commissioner of the General Land-Office, with many subordinates. To them, as a spécial tribunal, Congress confided the execution of the laws which regulate the surveying, the selling,' and the general care of these lands. -
. Congress has also enacted a system of -laws by which rights to these lands may be acquired-, and the title of the government conveyed to the citizen. This court has with a strong hand upheld the doctrine that so long as the legal title to these'lands remained in the United States, and the proceedings^ for acquiring it were as yet in fieri, the courts would not interfere to control the exercise . of the power thus vested in that tribunal. To that doctrine we still adhere.
' But we h^ve also held that when, by the action of these officers and of the' President -of the United States, in issuing a patent to apitizen, the title to the lands has passed from the government, the question as to the real ownership.of them is open in the proper courts to all the considerations appropriate tb the case., And this is so, whether the suit is by the United States to set aside the" patent and recover back the title so conveyed, as in United States v. Stone (2 Wall. 525), or by an individual- to cause the title conveyed by the patent to be held in trust' for him by the patentee on account of equitable circumstances which entitle ,the complainant to such . relief. Johnson v. Towsley, 13 id. 72, and other cases.
In the casé before- us it is said that the instrument .called a patent, which purports in the name of the United States to convey to McBride the lands in controversy, is not effectual for that purpose.-for want of delivery. That' though signed, • sealed, countersigned, and recorded, and then sent tb the register of the land-office' at Salt Lake CityAor delivery to him,, it never'was so delivered, and has always remained under the control of the officers of the Land Department, and that the-instrument is invalid as a deed of conveyance for want of delivery to the grantee.' If it were conceded that delivery of the' patent is essential- to- the transfer of title to the grantee, and that-such delivery is required as is necessary in a'conveyance fropi man to man, it would be a question, of some• difficulty'to decide whether such delivery, took -place in' this- case. The.. well-known principle .by which the intention of. the grantor’ in [397]*397a deed to make an act which falls far short of manual delivery, to stand for delivery, when so designed, might well be applied to'the act of the commissioner in transmitting the patent by mail to the local office for the purpose of delivery ;■ while, on the other hand, it is. argued, with much force that the instrument never actually passed from the land-office or the control of its officers. We.do not think the decision of this point necessary to the case before us.
■ We are of opinion that when, upon the decision of the proper office that the citizen has become entitled to a patent for a portion of the public lands, such a patent made out in that office is signed by the President, sealed with the seal of the General Land-Office, countersigned by the recorder of the land-office, and duly recorded in the record-book kept for that purpose, it becomes a solemn public act of the government of the United States, and needs no' further delivery or other authentication to make it perfect and valid'. In such case the title to the land conveyed passes by matter of record to the grantee, and the delivery which is required when a deed is made by a private individual is not necessary to give effect to the granting clause of the instrument.
The authorities on this subject are numerous and uniform. •They have'their .origin in the decisions of the English courts upon the grants of the crown evidenced by instruments called there, as here, patents.
Blackstone describes four modes of- alienation or transfer of title to real estate, which he calls common assurance: the first of which is by matter in pais or deed; the second by matter of record, or an assurance transacted only in the . king’s public courts of record; the third by special custom; and the fourth by devise in a last will or testament.
In the chapter devoted to alienation by dee$ he -.enumerates among the requisites to its validity the act of delivery. Book 2, c. 20. But in chapter 21, devoted to alienation by matter of record, nothing is said about delivery as necessary to pass the title, and under this head he' includes'the king’s grants. These, he says, are all made matter of public record, and are contained in charters or letters-patent. He then recites the processes by which patents are prepared and perfected, the [398]*398various officers through whose hands they- pass, and the manner of affixing the seal th them, and their final enrolment. They are then perfect grants, and no mention is made of delivery as a prerequisite. to their validity. After this they can only be revoked or annulled by scire facias or other judicial proceeding. The importance’ attached - to the delivery of the deed in modern conveyancing arises largely from the fact that the deed has taken the-place of the ancient livery ■ of-seisin in feudal times, when, in order to give effect to the enfeoffment of the new tenant, the act of delivering possession in a public and notorious manner was the essential evidence of the investiture of' the title. to .the land. This became gradually diminished in importance until the manual delivery of a piece of the turf, and many other symbolical acts, became sufficient. When all this passed away, and the creation and transfer of estates in’ land by a written instrument, called the act or deed of' the party, became the usual mode, the instrument was at first delivered on the land in lieu of ■ livery of seisin. Shepherd’s Touchstone, 54; Co. Litt. 266 b; Washburn, Real, Property, book 8, 308. .Finally, any delivery of the deed, or any act which the party intended to stand for such delivery, became effectual' to pass the -title. Church v. Gilman, 15 Wend. (N. Y.) 656; Butler v. Baker, 3 Co. 25 b; Warren v. Swelt, 31 N. H. 332; Hatch v. Hatch, 9 Mass. 307.
But in regard to the transfer of title by matter of record, whether this record were a judgment or decree in a court of justice, as fines and recoveries, or the record made in the proper office (generally in the. Court of. Chancery by the Lord Chancellor) of the king’s grant, called enrolment, no livery of seisin was necessary, nor any delivery of the document sealed with the. king’s seal; for when this seal was affixed to the' instrument and- the enrolment of it was made, no higher evidence could be had, nor- was any other evidence necessary of this act or deed of the kihg. Hence, Mr. Cruise, in his Digest of the English Law of Real Property, says: “The' king’s letters-patent need no delivery; nor his patents under the great seal of the Duchy of. Lancaster; for they are sufficiently authenticated and completed by the annexing of the respective seals .to them.” Title xxxiv. sect. 1, par. 3.
[399]*399In Marbury v. Madison, to which we have already referred, the court, likening the commission of the justice of the peace, which was signed and sealed by the President and left in the hands of the Secretary of State, to a patent for lands, uses •this language.: “ By the act passed in 1796, authorizing the sale of lands above the mouth of the Kentucky River (vol. iii. p. 229), the purchaser, on paying his purchase-money, becomes completely entitled to the property purchased, and on producing to the Secretary of State the receipt of the Treasurer, upon a certificate required by the law; the President of the United States is authorized to grant him a patent. . It is further enacted that all patents shall be .countersigned by the Secretary of State and recorded in his office. If the Secretary of State should choose to withhold this patent, or the 'patent being lost should refuse a copy of it, can it be imagined that the law furnishes to the injured party no remedy? It is not believed that any person whatever would attempt 'to maintain such a proposition.”■
In another'part of the opinion it is said: “In. all cases of letters-patent, certain solemnities are required by' law, which solemnities are the evidences of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign-manual of the President and the seal of the United States are those solemnities.”
The same principle is found in the opinion of v the court, delivered by Mr. Justice Story, in Green v. Liter, 8 Cranch, 229.
Many decisions of State courts of the highest character to the same effect are cited in the brief of counsel for the relator in this case, among which may be mentioned Ex parte Kuhtman, 3 Rich. (S. C.) Ch. 257; Donner v. Palmer, 31 Cal. 500. The subject is very fully and ably discussed by Mr. Justice Field in the case of Leroy v. Jamison, 3 Sawyer, 369.
It is also said that there was no acceptance of this patent by the grantee, and for that reason it is ineffectual to convey title. It is not necessary to enter into much discussion on this subject, because the acceptance of a deed may be presumed under circumstances far short, of what was admitted to exist in this ease.
The doctrine on this point is well stated by Attorney-General. [400]*400Crittenden, in the cake of Pierre Mutelle, in 1841, as found in 8 Op, Att.-Gen. 65^, which was a cáse like the present, in regard to the duty of the .Secretary to deliver the'paten,t then lying in the office.
. “ My'opinion,” said lip, “ is that the title to the land did pass to Pierre Mutelle at the date of .the patent to him, though that patent still remains in the land-office without any actual tradition of it to any one. The patent was issued by authority and direction of law, and upon general principles, where the patentee does not expressly dissent, his assent and acceptance are to be presumed from the beneficial nature of the grant. But it • is hardly ' necessary to resort to such' presumptions, because, in (this and in all such cases, the acts required to be done by the .claimant, and actually'done by him in the preparation of hip claim for patenting^ are equivalent to a positive •demand of the patent and amount to an acceptance of it. The patent,- in the^meaning of the act referred to, is granted to the patentee from -its date, though he may never actually see or receive it, and -is valid and effectual to pass the title to the land.
“ All legal muniments of title belong to him who owns the land,' . . . but as .the patent is a recorded evidence of title, always accessible, no material prejudice can result to the true owner from,a stranger getting possession of it.”
1 The1 long pursuit-of this claim by McBride, his repeated demand for the patent after it had been perfected,, and his persistent effort to' obtain possession of it, are ample proof of his. acceptance of the'grant of which.it-is the evidence.
It is argued with much'plausibility that the relator was not entitled to the land by the laws of thefUnited States, because it was not subject to homestead entry, and that the patent is, therefore, void, ,nd the law will not require the. Secretary to do a vain thing c.y delivering it, which may at the same itime embarrass the rights of others in regard to the same land.
• We are • nqt prepared to say;that if the patenfis 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 a Voidable instrument, •though'sometimes a very nice one, is still a well-recognized dis[401]*401tinction on which' valuable rights often depend. And the case before us is one .to which we think it is clearly applicable. To the officers of the Land Department, among whom we inc: ude the Secretary of the Interior, is confided, as we have already said, the administration of the laws concerning the sale of the public domain. The land in the present case had1 been .surveyed, and, under their control, the land in that District generally had been opened to pre-emption, homestead entry, and sale. The question whether any particular tract, belonging to the government, was open to sale, pre-emption, or homestead right, is in every instance a question of law as app'ied to the facts for the determination of those officers. Their decision. of such question and. of conflicting claims to the sane land -by different parties is judicial in its character.'
It is clear that the right and the. duty of deciding all such questions belong to those officers, and the statutes have provided for original and appellate hearings in that department before the successive officers of higher grade up to the Secretary. They have, therefore, jurisdiction of such cases, and' provision is made for the-correction of errors in the exercise of that jurisdiction. When their decision of such a question is finally made and recorded' in the shape of the patent, how can it be said that the instrument is absolutely void for such errors as these ? If a patent should issue for land in the State of Massachusetts, where the government never had ariy, it would be absolutely void.' If it should issue for land once owned by the government, but long before sold and conveyed, by patent to another who held possession, it might' be held void in a court of law on the production of the. senior patent.. But such is not the ease before us. Here the question is ■ whether this land had 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 determined to issue McBride’s- patent. It was within their jurisdiction to do so. If they decided erroneously, the patent may be voidable, but not absolutely void.
The mode of avoiding it, if .Voidable, is not by arbitrarily [402]*402withholding if, but by judicial proeéedings to set it aside, or correct it ii only partly wrong. It was within the province of those officers to sell the land, and to decide to whom and for what price. it should be sold; and when, in accordance with their decision, it was .sold, the money paid for it, and the. grant carried into effect by a duly executed patent, that instrument carried with it the title of the United States to the land.
From the very-nature of the functions performed by these officers, and from the fact that a transfer of the title from the United States to another owner follows their favorable action, it must result that at some stage or other of the proceedings their authority in the matter ceases.
It is equally clear that this-period.is, at the latest, precisely when the last act in the series, essential to the transfer of title has been performed. Whenever this takes place, the'land has ceased to.be the land of the government; or, to speak in technical language, the legal title has passed from the government, and the' po'wer of these officers to deal with it has also passed away. The fact that the evidence of this transfer of title remains in the possession of the land-officers cannot restore the title to the United Státes or defeat that of the grantee, any more than the burning up of a man’s title-deeds destroys his title.
What is this final act which closes the transaction ?
In Marbury v. Madison (supra), this court was of opinion that when the . j remission of an officer was' signed by the President and the seal of the United States affixed to it, the commission was complete, and • the officer entitled to' its possession could enforce its delivery by the writ of mandamus. In regard to patents for land, it may be somewhat different, and it is not necessary in this case to go-quite so far. ■
■ But we may well consider that in all nations, as far as we know, where grants of the property of the government or of the crown are made by written instruments, provision is made for a record of these instruments in some public government office. Our experience in regard to Mexican, Spanish, and French grants of parts' of the public domain purchased by us from those' governments teaches us that such is' the uniform law [403]*403of those countries. We have already- shown that under the-English law áll lehters-patent are enrolled, and that this is- the last act in- the process of issuing a patent which is essential to its validity.
We are safe in saying that every State of the Union has similar provisions in reference to its grants of land, and it. has been the effort of- most of them to compel public record of all conveyances of land by individuals -or corporations.
The acts of Congress provide for the record of all patents for land in an office, and in books kept for that purpose. An officer, called the Recorder, is appointed to make and to keep these records. He is required to record every patent before it is issued, and to countersign the instrument to be delivered to the grantee. This, then, is the final record of the transaction, — the legally prescribed act which completes what Blackstone calls “ title by record; ” and when this is done, the grantee is invested with that title.
We do not say that there may not be rare» cases where all this has been - done, and yet the ófficer in possession of the patent be not compellable to deliver it. to the grantee. If, for instance, the secretary whom the President is authorized by law to appoint to sign his name to the patent should do so' when he has been forbidden by the President, or if, by some mere clerical mistake, the intention of the officer performing an essential part in the execution of the-patént has been frustrated. It is not necessary to decide on all. the hypothetical cases that could be imagined.
But we are of opinion that when all that we have mentioned has been consciously and purposely done by each officer engaged in it, and where these officers have been-acting in a matter within the scope of their duties, the egal title to the land passes to the grantee, and with it the right to the possession of the patent.
No further authority to consider the patentee's case remains in the land-office. No right to consider whether-he ought in equity, or on new information, to-have the title or receive the patent. There remains the duty, simply ministerial, to deliver the patent to the owner, — a duty which, within all the definitions, can be enforced by the writ of mandamus.
[404]*404It is not always that the ill consequences of a principle should control a court in deciding what the established law on a particular subject is, and in the delicate matter of controlling the action of a high 'officer of the executive branch of the government, it would certainly not alone be sufficient to justify judicial interposition. ■ But it may tend to reconcile us to such action as we feel forced to take, under settled doctrines of the courts, to see that any other course would lead to irremediable injustice.
If the relator in this case cannot obtain his patent, he is wholly without remedy. He cannot sue the United States, in whom is the title in'the absence of the patent;- for the United States .can. be sued in no^other court than the Court.of Claims, and we have decided that that court has no jurisdiction in such’ a ease. Bonner v. United States, 9 Wall. 156. There is no one else to sue, for the 'title is either.in the.-relator or the United States. It may be many years before the city of Grantsville, the> party now claiming against him, will get a patent, and it may never do so.
.The relator is, therefore, utterly without remedy, if the land bé rightfully his, until he can obtain possession of this evidence of his title.
On. the other hand,, when he obtains this possession, if there be any equitable reason why, as against the government, he should not have it, — if it has been issued without authority, of ■ law, or by mistake - of facts, or by fraud of the grantee, — the United States can, by. a bill in chancery, have a decree annulling the patent, or possibly a writ of 'scire facias: ■ If another, party (as the city of Grantsville) is, for any of the reasons cognizable in a court of equity, entitled, as against the relator, to have the title which the patent conveys to him, a court of chancery can give similar relief to the city as soon as the patent comes into his possession, or perhaps before. So that it is plain that by non-action of the Band. Department the legal rights of the parties may remain indefinitely undecided!, and those of the relator, seriously émbarrassed’ or totally defeated, while the delivery of the patent, under the’writ of mandamus, opens to all the parties the portals of the courts where their rights can be judicially determined.
[405]*405' We- are-of' opinion that the relator in the case, as presented to us, is entitled to the. possession of the,patent which he demanded, and that the writ of mandamus by the Supreme Court of the District of Columbia is the appropriate remedy to enforce that right. The judgment of that court will be reversed,-and the case remanded with instructions to issue the writ; and it is'
So ordered.