Warner Valley Stock Co. v. Morrow

86 P. 369, 48 Or. 258, 1906 Ore. LEXIS 92

Opinion

Mr. Justice Hailey

delivered the opinion of the court.

1. The objection to the introduction in evidence of the certified copy of the patent of the United States to the State was noti well taken. The law is well settled that title by patent from the United States is title by record, and the delivery of the patent to the patentee is unnecessary to pass title as in the conveyance by a private person: United States v. Schurz, 102 U. S. 378 (26 L. Ed. 167); Eltzroth v. Ryan, 89 Cal. 135-139 (26 Pac. 647); Le Roy v. Clayton, 2 Sawy. 493 (Fed. Cas. No. 8,268); 26 Am. & Eng. Encyc. Law (2 ed.), 421.

2. The objection to the patent from the State to the plaintiff is based upon Section 4, p. 42, nf the Session Laws of 1878,

Footnotes

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* authorizing the sale of not exceeding 320 acres to any one person. This, however, is untenable. The state land board under our law is the land department of the State: Corpe v. Brooks, 8 Or. 223; Robertson v. State Land Board, 42 Or. 183, 187 (70 Pac. 614). And, as stated by Mr. Justice Field in Smelting Co. v. Kemp, 104 U. S. 646 (26 L. Ed. 875) : “A patent, in a court of law, is conclusive as to matters properly determinable by tbe land department when its action is within the scope of its authority; that is, when it has jurisdiction under the law to convey the land. In that court the patent is unassailable for mere errors of judgment. Indeed, the doctrine as to the regularity and validity of its acts, where it has jurisdiction, goes so far that if in any circumstances under existing law a patent would be held valid, it will be presumed that such circumstances exist”: Eastern Oregon Land Co. v. Andrews, 45 Or. 203, 210 (77 Pac. 117).

3. This court has held in Gliem v. Board of Commissioners, 16 Or. 479 (19 Pac. 16), that a person who has purchased from the state land board the maximum quantity of land allowed to be purchased by one person is not thereby disqualified from taking an assignment of a certificate of purchase from the board to another applicant under the act and receiving a deed from the board for such lands in his own name. It being possible under the law for the plaintiff to have purchased certificates from other persons and have the lands conveyed to it, the court could not say from the mere number of acres conveyed that the patent was void, and rightly overruled the objection to its introduction upon that ground.

4. The question raised by the objection as to the title of the State at the time of the issuance of its patent to the plaintiff is disposed of adversely to the defendant herein in the case of Warner Stock Co. v. Calderwood, 36 Or. 228-233 (59 Pac. 115), which holds that the plaintiff’s title, upon the issuance of the patent from the United States, relates back to the date of the grant to the State, March 12, 1860, when the swamp land act was extended to Oregon.

5. The evidence offered to prove the land was not swamp land, and the records and proceedings of the state land board, were properly rejected, for such evidence was an attempt to impeach the patent from the Government to the State and the patent from the State to plaintiff, and was clearly not admissible in a law action: Sanford v. Sanford, 19 Or. 4 (13 Pac. 602); Warner Stock Co. v. Calderwood, 36 Or. 228-233 (59 Pac. 115); Small v. Lutz, 41 Or. 570-578 (69 Pac. 825); Smelting Co. v. Kemp, 104 U. S. 645 (26 L. Ed. 875). Where the authorized officers of the government have issued a patent in due form of law which on its face is sufficient to convey the title to the land described in it, it will be presumed that all the prerequisites to the issuance -of a valid patent have been complied with, and the title conveyed is impregnable to collateral attack: 26 Am. & Eng. Encyc. Law (2 ed.), 390. The reason of this rule is fully and ably stated in Smelting Co. v. Kemp, 104 U. S. 645 (26 L. Ed. 875), as follows: “The patent of the United States is the conveyance by which the nation passes its title to portions of the public domain. For the transfer of that title the law has made numerous provisions, designating the persons who may acquire it and the terms of its acquisition. That the provisions may be properly carried out, a land department, as part of the administrative and executive branch of the government, has been created to supervise all the various proceedings taken to obtain the title from their commencement to their close. In the course of their duty the officers of that department are constantly called upon to hear testimony as to matters presented for their consideration, and to pass upon its competency, credibility and weight. In that respect they exercise a judicial function, and therefore it has been held in various instances by this court that their judgment as to matters of fact, properly determinable by them, is conclusive when brought to notice in a collateral proceeding. Their judgment in such cases is, like that of other special tribunals upon matters within their exclusive jurisdiction, unassailable except by a direct proceeding for its correction or annulment. The execution and record of the patent are the final acts of the officers of the government for the transfer of its title, and as they can be lawfully performed only after certain steps have been taken, that instrument, duly signed, countersigned and sealed, not merely operates to pass the title, but is in the nature of an official declaration by that branch of the government to which the alienation of the public lands under' the law is intrusted, that all the requirements preliminary to its issue have been complied with. The presumptions thus attending it are not open to rebuttal in an action at-law. It is this unassailable character which gives to it its chief — indeed, its only — value as a means of quieting its possessor in the enjoyment of the lands it embraces. If intruders upon them could compel him, in every suit for possession, to establish the validity of the action of the land department and the correctness of its ruling upon matters submitted to it, the patent, instead of being a means of peace and security, would subject his rights to constant and ruinous litigation.”

6. The only remaining question is upon the exclusion of the testimony offered regarding the protest of the Governor against the issuance of the patent by the United States, and his refusal to accept such patent. The defendant claims no legal title to the land in controversy, and his answer fails to show any equitable title therein. He alleges legal title in the United States, and for himself sets up the claim of a timber culture entry made by his intestate, John W. Morrow, in 1889, but in no way connects himself with such entry. The death of a timber culture entryman who has not made final proof ends his estate in the land claimed, and his heirs, if any, take the land as grantees of the government, and not by inheritance. Therefore, the defendant could have no right in the land as administrator, and he has not alleged any fact that would give him any right as heir, and hence as grantee of the government under the timber culture act: Kelsay v. Eaton, 45 Or. 70 (76 Pac. 770, 106 Am. St. Rep. 662); Cooper v. Wilder, 111 Cal. 199 (43 Pac. 591, 52 Am. St. Rep. 163). He is therefore a stranger to the title, and cannot question the rights of the plaintiff under either of the patents: Stewart v. Altstoch, 22 Or. 182-190 (29 Pac. 553); Schieffery v. Tapia, 68 Cal. 184-186 (8 Pac. 878).

Finding no error in the judgment of the lower court, it is affirmed. Affirmed.

Laws 1878, pp. 41, 42, § 4.