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into all matters connected 140 with the issuance of the patent extends, and such patent is also conclusive in equity until set aside in a proper proceeding, on the ground that the land officers have misconstrued the law, or that their judg. ment has been so affected by misrepresentation or fraud as to deprive a party of his just rights.
The supreme court of the United States clearly holds, as we understand it, that, if the land patented was not under the control and subject to disposition of the land office, the patent is void, and its invalidity may be shown in an action of ejectment to recover the land by virtue of the patent. The act of Congress of 1872, authorizing the issuance of the Valentine scrip, provides that patents may issue for it for an equal quantity of the unoccupied and unappropriated public lands of the United States, not mineral, whether surveyed or not, in tracts not less than the subdivisions provided for in the United States land laws, and, if unsurveyed when taken, to conform when surveyed to the general system of the United States land surveys. The plea alleges that the land sued for and entered with Valentine scrip was situated within Fort Brooke Military Reservation, at Tampa, and at the time of said entry and the issuance of said patent to plaintiff's grantor the land was within the jurisdiction of the war department of the United States, and not within the land department. It is also alleged that the patent was in fraud and violation of the acts of Congress and of the rights of the war department, and was void; but this allegation of fraud must be taken as referring to the issuance of the patent when the land was within the jurisdiction of the war department, and not subject to the control of the land-office department. As an independent allegation of fraud it would be nothing but a legal conclusion of 141 the pleader. There is also an allegation that when the entry was made and the patent issued, defendant was in possession of the land, and that it was not then, or at the time of filing the plea, unoccupied and unappropriated public land, as specified by the act of Congress authorizing the location of land with Valentine scrip. The allegation that the land was not unoccupied public land is based upon the alleged fact that defendant was in possession, but the further allegations that the land was situated within Fort Brooke Military Reservation, and, at the time of the entry and issuance of the patent, was within the jurisdiction of the war department, and not within the land department, are sufficient, in our opinion, to show, if true, that the land officers had no authority to permit the land to be entered with the Valentine scrip. The act of Congress in force up to July 5, 1884, authorized a transfer of the land by the secretary of war to the land department under certain conditions, and the patent alone would afford prima facie evidence that the proper transfer had been made before the issuance of the patent. The allegations of the plea, if true, negative such fact, and show that the land was still under the control of the war department when the patent was issued. Under such circumstances the land officers had no authority to issue the patent, and, under the rule above announced, it would be void and subject to attack in an action at law. The allegation that when the patent issued the land had not been surveyed and the entry was made upon tracts less than the subdivisions provided for in the United States land laws does not aid the plea. The scrip referred to was authorized to be located upon any unoccupied and unappropriated public land, not mineral, whether surveyed or not; but the survey, when made, is required to conform to the general system 142 of United States land surveys. If the land was not under the control of the interior department, as alleged, the land officers had no authority over it, and their action in undertaking to dispose of the land was void. If it were shown that the land-office bad authority to dispose of the land a question would arise as to whether or not the matter of surveys belongs exclusively to that department: Craign v. Powell, 128 U. S. 691; Knight v. United States Land Assn., 142 U. S. 161. Conceding that the defendant was in a condition to attack the patent, all the avail. able defense sought to be set up by the equitable plea could, in our judgment, be relied upon as a legal defense under the general issue, and the courts did not err in refusing to allow such pleas to be filed.
So far we have considered the plea on the theory that the defendant was shown to be in a situation to attack the patent on the ground that it was void. He bases his right to the land on a settlement and occupancy of the land under the act of Congress of July 5, 1884, and his right to make a homestead entry, and it will be observed that the rights given to the settler in the first proviso in this act are coupled with a further proviso that the land was subject to entry under the public land laws at the time of their withdrawal. The
actual occupancy of the land by the defendant is alleged, as well as his right to make a homestead entry and to enter the land, but there is no distinct allegation that the land was subject to entry under the public land laws at the time of its withdrawal.
The question of defendant's right to attack the patent is involved in the further questions presented on the 143 trial under the general issue, and we will consider it in connection with them.
On the trial a patent for the land described in the declaration to Louis J. Brush, bearing date September 13, 1882, was offered in evidence by the plaintiff, and objected to by the defendant, but the objection was overruled and the patent admitted in evidence. There was no error in admitting the patent. It recited that it was issued upon a location of the land in the district of lands subject to sale at Gainesville, Florida, with scrip issued by virtue of the act of Congress in 1872, in favor of Thomas B. Valentine, and was in due form. The patent was at least prima facie evidence of a good conveyance of the land, and, in the absence of any thing to impeach it, should have been admitted in evidence. A deed from Brush and wife conveying the land to plaintiff was then introduced without objection,
Defendant offered as documentary evidence certified copies of what purports to be official communications between the secretary of war and the secretary of the interior, commencing in 1860 in reference to Fort Brooke reservation, at Tampa, and also the approvals of the President of the United States in 1877 and 1878 of the request of the secretary of war in reference to said reservation. The purpose for introducing this evidence was to show that the land described in the patent was a part of the military reservation of Fort Brooke, at Tampa, when the patent was issued. On objection of plaintiff the documentary evidence was excluded and defendant excepted. Defendant then testified that he was a native born citizen of the United States, and the head of a family, and offered to show that he settled upon the land in question prior to the issuance of the patent, and was actually occupying 144 said land on the first day of January, 1884, and continued to occupy it up to the date of the act mentioned, and that his settlement and occupancy of the land was for the purpose of entering it under the homestead laws of the United States. The record shows that some evidence offered by defendant to show bis occupancy of the land was admitted, but it also shows that the court excluded most of the testimony offered by defendant on this point. There was no effort
show that defendant had ever obtained any certificate of entry of the land from the land-office, or that he had any deed or paper evidence of title of any kind to the land from any source whatever. Testimony was offered tending to show that in July, 1883, defendant made some efforts to make an application at the local land-office for the land, and also consulted a party as to how he should proceed to make the application, and did in fact make an affidavit, that he was residing upon Fort Brooke reservation, before a judge, and forwarded it to Washington. The circuit judge refused to admit testimony offered by defendant to show occupancy of the land either before or subsequent to January 1, 1884, for the purpose of entering it under the homestead laws, or otherwise, and the rulings of the court rejecting such evidence were excepted to by the defendant. This testimony offered by the defendant and ruled out by the court was objected to, among other grounds, because the defendant had not shown that he was in a situation to attack the patent offered in evidence by the plaintiff. Without considering the other grounds of objection to the testimony, or the views of the circuit court in passing thereon, we think the objection mentioned was good, and it is decisive of the entire defense sought to be interposed by the defendant. There is doubt whether the documentary 145 evidence offered by the defendant shows that the particular lots of land described in the declaration were embraced in Fort Brooke reservation when the patent was issued, but, without going into either the competency or relevancy of this evidence, we do not see how the defendant can call in question the validity of the patent on the showing he made.
The rights given to the settler of any part of a military reservation by the act of July 5, 1884, were upon the condi. tion that said land was subject to entry under the public land laws at the time of their withdrawal. There was no showing made or offered to be made that the Fort Brooke reservation at Tampa was ever subject to entry under any of the public land laws when it was withdrawn for a reservation. If it had never been subject to such entry the defendant could acquire no rights, hy virtue of the act mentioned, to enter the land under the general laws, as Congress had not secured to bim such right by said act in providing for tho disposition and sale of military reservations. At most ho was an occupier of lands of the United States without any right of entry, and without any authority of law. We have been unable to find any authority to sanction the view that a mere trespasser upon public land has the right to question the legality of a patent issued by the United States land officers. The case would be entirely different if a settlement should be made upon public land subject to entry under the provisions of law, and we find cases holding that inchoate rights acquired under such an entry will be protected even against a patent issued in violation of such a settler's rights. In the case of Doolan v. Carr, 125 U. S. 618, which was an action of ejectinent, and in which the right to attack a patent issued 146 for the land in question was recognized, it appears that the defendants had entered upon the land under a claim of pre-emption settlement, and had made and subscribed declaratory statements of intention to pre-empt the land, and presented them to the register of the proper landoffice, but they were refused on the ground that the land had been patented to a railroad company. The land was not subject to disposition by the land-office when the patent was issued, being then embraced in a Mexican grant, but had been transferred to the interior department, and was subject to entry when the pre-emption claim was made: Winona etc. Land Co. v. Ebilcisor, 52 Minn. 312. In the case before us there was no showing that the land occupied by the defendant was ever subject to entry under any of the public landlaws by homestead entry, or that the defendant had acquired any right, inchoate or otherwise, to enter the land. The defendant's claim is not shown to have been in privity with the government's title in any way, and his adverse holding, under the showing made, places him in the attitude of a mere trespasser upon the land. As such we do not think he can be heard to question the legality of the patent issued by the land-office. The case of Reynolds v. Iron Silver Min. Co., 116 U. S. 687, involving the validity of a patent under a placer mine claim, decides that as the title in the veins of mineral lands known to exist, and not claimed or referred to in the patent, remains in the United States, the patentee had no right to dispossess one in peaceable possession of such veins, whether the latter have any title or not. An examination of the case will show that it did not involve