The issuance of such a patent is conclu sive as to title of land described therein up on a court of law and in controversies be tween individuals ; Aurora Hill Consol.
Co. v. Min. Co., 34 Fed. 515. By the act of March 3, 1881, it is provided that if in any action brought pursuant to R. S. § 2326, title to the ground in controversy shall not be es tablished by either party, the jury shall so find, and judgment shall be entered accord ing to verdict. In such case no costs shall be allowed, and the claimant shall not pro ceed in the land office or be entitled to a patent for the land in controversy until he shall have perfected his title.
Where an application is pending for a patent to mineral lands, any adverse claim must be filed within the sixty days granted by the statute, and must be under the oath of the adverse claimant; R. S. §§ 2325-2326 ; Marshall Silver Min. Co. v. Kirtley, 12 Colo.
410, 21 Pac. 492. If such adverse claim be filed, proceedings upon the patent shall he stayed until the controversy shall have been determined by a court of competent juris diction, or the adverse claim is waived ; Hamilton v. Min. Co., 33 Fed. 562 ; Richmond Min. Co. v. Rose, 114 U. S. 576, 5 Sup. Ct. 1055, 29 L. Ed. 273. This procedure in the court must be begun by the adverse claim ant within thirty days after filing his ad verse claim, or his claim will be deeined to have been waived ; U. S. R. S. § 2326 ; Rich mond Min. Co. v. Rose, 114 U. S. 576, 5 Sup. Ct. 1055, 29 L: Ed. 273. The person in whose favor a decision is rendered in such a pro ceeding is entitled to the patent upon com pliance with the provisions of law ; U. S. R. S. § 2326; and it is given to the party es tablishing the better title, the only question before the court being one of the right of possession of the premises ; Bay State Silver Mini Co. v. Brown, 21 Fed. 167. It is neces sary for an adverse claimant in such a pro cedure to prove right of possession as against the United States, as well as against the applicant for a patent ; Gwillim v. Don nellan, 115 U. S. 45, 5 Sup. Ct. 1110, 29 L. Ed. 348; and where neither party shows ti tle neither can receive a patent ; Bay State Silver Min. Co. v. Brown, 21 Fed. 167.
HoW cancelled and annulled. It is not permissible for courts of law to inquire into the validity of a patent or into any question of fraud in connection with its issuance ; Iron Silver Min. Co. v. Sullivan, 16 Fed. 829; see St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875. This, of course, applies only to the cases where the depart ment has jurisdiction to act. If such juris diction was wanting or if the patent be void upon its face, it may, of course, be collater ally impeached ; St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 636„ 26 L. Ed. 875. The United States may bring an action to set aside a patent upon allegations of fraud, and such action is triable under the same principles and rules which would obtain between individuals ; U. S. v. Minor, 114 U. S. 233, 5 Sup. Ct. 836, 29 L. Ed. 110; U. S. v. Min. Co., 128 U. S. 673, 9 Sup. Ct. 195, 32 L. Ed. 571; a. 0. 16 Fed. 810 ; that is when the question arises as to patenting the land to the wrong person ; in which case the gov ernment merely becomes the instrument by which the right of the individuals can be established and is merely a formal complain ant ; but if the patent has been obtained from the government by fraud or covers lands which were not subject to patent, the government sues in its sovereign capacity ; U. S. v. Telephone Co. (Berliner Case) 167 U. S. 224, 17 Sup. Ct. 809, 42 L. Ed. 144, where the subject is fully discussed and all the cases cited. See PATENT. .
It may proceed by bill in equity for a de cree of nullity, and an order of cancellation of a patent issued by the government itself, ignorantly, or in mistake, for lands, reserved from sale by law, and a grant of which by a patent was therefore void ; U. S. v. Stone,
2 Wall. (U. S.) 525, 17 L. Ed. 765 ; or where a patent issued in mistake, and the govern ment has a direct interest or is under an ob ligation respecting the relief invoked ; U. S. v. R. Co., 141 U. S. 358, 12 Sup. Ct. 13, 35 L. Ed. 766; or when the patent was issued by mistalte or obtained fby fraud ; San Pedro & C. Del A. Co. v. U. S., 146 U. S. 120, 13 Sup. Ct. 94, 36 L. Ed. 911; the initiation and con trol of such a suit lies with the attorney general ; U. S. v.' Tin Co., 125 U. S. 273, 8 Sup. Ct. 850, 31 L. Ed. 747; U. S. v. Beebe, 127 U. S. 338, 8 Sup. Ct. 1083, 32 L. Ed. 121. Misrepresentations knowingly made by the applicant for a patent will justify the gov ernment in proceeding to set it aside, as it has a right to demand a cancellation of a patent obtained by false and fraudulent rep resentations ; U. S. v. Min. Co., 128 U. S. 673, 9 Sup. Ct. 195, 32 L. Ed. 571; see U. S. v. Coking Co., 137 U. S. 161, 11 Sup. Ct. 57, 34 L. Ed. 640 ; but courts of equity cannot set aside, annul, or correct patents or other evi dence of title obtained from the United. States by fraud or mistake, unless on specific aver ments of the mistake or fraud,, supported by clear and satisfactory proof; Maxwell Land Grant Case, 121 U. S. 325, 7 Sup. Ct. 1015, 30 L. Ed. 949. A bill in equity is the proper remedy ; U. S. v. Hughes, 11 How. (U. S.) 552, 13 L. Ed. 809; although a patent fraud ulently obtained by one knowing at the time that another person has a prior right to the land may be set aside by an informa tion in the nature of a bill in eilDity filed by the • attorney of the United States for the district in which the land lies ; id. A court of equity, upon a bill filed for that purpose, will vacate a patent of the United States for a tract of land obtained by mistake from the officers of the land office, in order that a clear title may be transferred to the previous pur chaser ; Hughes v. U. S., 4 Wall. (U. S.) 232, 18 L. Ed. 303 ; but a patent for land of the United States will not be declared void mere ly because the evidence to authorize its issue is deemed insufficient by the court ; Milliken v. Starling's Lessee, 16 Ohio 61. A state can impeach the title conveyed by it to a gran tee only by a bill in chancery to cancel it, either fox fraud on the part of the grantee or mistake of law ; and until so cancelled, it cannot issue to any other party a valid patent for the same land ; Chandler v. Min. Co., 149 U. S. 79, 13 Sup. Ct. 798. 37 L. Ed. 657.
After the issue of a patent, assignment and transfers of the pre-emption right will not be inquired into ; Morgan v. Curtenius, 4 Mc Lean 366, Fed. Cas. No. 9,799. The issue of a patent of public lands to a person not equi tably entitled to it does not preclude the owner of the equitable title from enforcing it in a court of equity ; Monroe Cattle Co.
v. Becker, 147 U. S. 47, 13 Sup. Ct. 217, 37 L. Ed. 72 ; and fraud on the part of a gran tee under a patent does not prevent the legal title from passing to a bona fide purchaser; 1J. S. v. Land Co., 49 Fed. 496, 1 C. C. A. 330, 7 U. S. App. 128; unless the purchaser had Sufficient information to put him on inquiry of fraud, in which case he is not a bona fide purchaser ; San Pedro & C. Del A. Co. v. U. S., 146 13. S. 120, 13 Sup. Ct. 94, 36 L. Ed. 911. A patent to a deceased person is void; Galloway v. Finley, 12 Pet. (U. S.) 264, 9 L. Ed. 1079 ; Wood v. Lessee of Ferguson, 7 Ohio St. 288. On the acquisition of the ter ritory from Mexico, the United States ac quired the title to lands under tidewater, in trust for future states that might be erected out of the territory ; but this doctrine does not apply to lands that had been previously granted to other parties by the former gov ernment; Knight v. Land Ass'n, 142 U. S. 161, 12 Sup. Ct. 258, 35 L. Ed. 974. See LANDS, PUBLIC; LAND WARRANT; LAND GRANT.