Formerly, grants from the State to an individual were construed strictly against the State and in favor of the grantee. Nothing was presumed beyond the letter of the grant.2 But this strict rule of construction was applied only where there was uncertainty or ambiguity in the terms of the grant, and where the grant was not for a valuable consideration; otherwise the rules of construction applicable to grants between individuals were applied. The modern tendency, however, is toward a liberal construction in favor of the grantee, so as to carry out fully and liberally the legislative intent so far as it is ascertainable.5 Possession continued for a sufficient length of time may raise a presumption of a grant from the State. such title as it had power and right to convey. In Governeur v. Robertson, II Wheat. (U. S.) 332, it is said: "The State never intends to grant the lands of another, and where the grantee is ignorant of the previous patent, the maxim caveat emptor is emphatically applicable to this species of contract." 1. Washb. Real Prop. 190; 2 Minor's Insts. 996; People v. New York, etc., Ferry Co., 68 N. Y. 71; Tolson v. Lanham, 2 Har. & J. (Md.) 17. 2. Hagan v. Čampbell, 8 Port. (Ala.) 9: Townsend v. Brown, 24 N. J. L. 80; Mayor, etc., of Allegheny v. Ohio, etc., R. Co., 26 Pa. St. 355; Green's Estate 4 Md. Ch. 349; Dubuque R. Co. v. Litchfield, 23 How. (U. S.) 88; Gildart v. Gladstone, 11 East 685. 3. 3 Washb. Real Prop. 190; 2 Minor's Inst. 996; 2 Co. Lit. 607, n. A.; Molyn's Case, 6 Co. 6 a. 4. 2 Minor's Inst. 997; 2 Lom. Dig. 501; 3 Washb. Real Prop. 190; Hyman v. Read, 13 Cal. 455; Charles River Bridge v. Warren Bridge, 11 Pet. (U. S.) 596; Com. v. Roxbury, 9 Gray (Mass.) 492; Martin v. Waddell, 16 Pet. (U. S.) 411; Attorney Gen'l v. Delaware, etc., R. Co., 27 N. J. Eq. 631. 5. McArthur 7. Nevill, 3 Ohio 183. Conditions of forfeiture in grants must be created by express terms or clear implication, and construed strict ly. Brown v. State, 5 Colo. 496. 6. Bingham on Real Estate 4; Des Moines v. Harker, 34 Iowa 84; Gardiner v. Miller, 47 Cal. 570; Cary v. Whitney, 48 Me. 516; State v. School Dist. No. 3, 34 Kan. 237; 9 Am. & Eng. Corp. Cas. 587; Alton . Illinois Transp. Co., 12 III. 38; 52 Am. Dec. 479; Brinsfield v. Carter, 2 Ga. 143; Wright v. Swan, 6 Port. (Ala.) 84; Kirschner v. Western, etc., R. Co., 67 Ga. 760; Glaze v. Western, etc., R. Co., 67 Ga. 761; Wallace v. Miner, 6 Ohio 366; Harlock . Jackson, 3 Brev. (S. Car.) 254; Kennedy v. Townsley, 16 Ala. 239; Troutman v. May, 33 Pa. St. 455; Lavasser v. Washburn, 11 Gratt. (Va.) 572; Lindsey v. Miller, 6 Pet. (U. S.) 666; Walls . McGee, 4 Harr. (Del.) 108; Chapman v. Hoskins, 2 Md. Ch. 485; Cooker v. Pendleton, 23 Me. 339; Tubbs v. Lynch, 4 Harr. (Del.) 521; Jarboe v. McAtee, 7 B. Mon. (Ky.) 279; Doe v. Roe, 20 Ga. 467; Barclay v. Howell, 6 Pet. (U. S.) 498; Hanes v. Peck, Mart. & Y. (Tenn.) 228; Pipkins 7. Wynns, 2 Dev. (N. Car.) 402; Rogers v. Mabe, 4 Dev. (N. Car.) 180; Sulphen v. Norris, 44 Tex. 204; Jackson v. Gumaer, 2 Cow. (N. Y.) 568. As between a junior patentee and one in possession who traces his title backwards seventy years, it is a presumption of law that a grant has issued for the land, and it is not subject therefore to entry and grant as waste and unappropriated. Matthews v. Burton, 17 Gratt. (Va.) 317; Archer v. Saddler, 2 Hen. & M. (Va.) 370; Doe v. Barksdale, 11 Ired. (N. Car.) 461. After forty years, all presumptions are in favor of the regularity of proceedings had to acquire public land in Texas, and in favor of the construction there put by the public officers on the laws and their powers under them. State v. De Leon, 64 Tex. 553. After the lapse of forty years, during which possession was shown and a destruction of the public records, payment of the appraised value recited in the expediente will be presumed. State v. Sais, 60 Tex. 87. A presumption of a conveyance by Provision is made sometimes for filing a caveat in the case of conflicting claims. The principles and procedure, while varying in detail in different jurisdictions, are not dissimilar to those governing the caveat in the case of patents for inventions.1 f. PATENT (1) Definition and Form.- A patent is the instrument that forms the evidence of title to lands acquired from the State. It is designed to define the lands to be granted and the terms of the grant.2 It is nothing more than a deed in which the State is the grantor and the patentee is the grantee. A patent for lands owned by the State must be executed in the manner provided by statute. The requirements of the various States. vary as to the form and requisites of the patent. It is usually made necessary that the governor sign the patent and that the great seal of State be affixed.4 The principles governing the law the State cannot arise in a case where from the constitution or common law of the State, the legislature never acted and never will act. Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.) 429; 19 Am. Dec. 139. A grant of land will not be presumed from lapse of time unless the lapse of time is so great as to create the belief that it was actually made; or unless the facts in the case show that the party to whom it is presumed to have been made was legally or equitably entitled to it. Jackson v. Moore, 6 Cow. (N. Y.) 706. As the State's lands cannot be taxed, one claiming them under a sale for taxes shows no title as against a proceeding instituted by the State for their recovery. State v. Pinckney, 22 S. Car. 484. See, generally. ADVERSE POSSESSION, vol. 1, p. 225; PRESUMPTIONS, vol. 19, p. 36. 1. Alexander v. Noland, SS Ky. 142; Prestion v. Harvey, 3 Call. (Va.) 495; Davis v. Stafford, 8 B. Mon. (Ky.) 274; Allen County v. Allen, 2 A. K. Marsh. (Ky.) 30; Currie v. Martin, 3 Call. (Va.) 28; Walton 7. Hale, 9 Gratt. (Va.) 194; Harper v. Baugh, 9 Gratt. (Va.) 508; Carter v. Ramey, 15 Gratt. (Va.) 346; Person v. Davey, 1 Murph. (N. Car) 115; Miller . Woodard, 29 Ga. 753; Records v. Melson, I Houst. (Del.) 139; Trotter . Newton, 30 Gratt. (Va.) 582; Sharp v. Curds, 4 Bibb (Ky.) 547; Lewis v. Billups, 1 Leigh (Va.) 353; Smith v. Devecmon, 30 Md. 473. See PATENT LAW, vol. 18, p. 25. 2. 3 Washb. on Real Prop. 185; Anderson's Law Dict.; Black's Law Dict. 3. See PUBLIC LANDS, vol. 19, pp. 354, 355 4. 3 Washb. on Real Prop. 185; 2 Minor's Inst. 1000; Compton v. Killen, 60 Ga. 543: People v. Livingston, 8 Barb. (N. Y.) 253; Doe v. Roe, 14 Ga. 252; Hulick v. Scovil, Ill. 174: Exum 7. Brister, 35 Miss. 391; Bradley v. Parkhurst, 20 Kan. 462; Jarrett v. Stevens, 36 W. Va. 445. In New York, it was held that a patent without the governor's signature was valid if sealed with the great seal. The fact of the seal being attached was considered as evidence that the patent had been approved by the governor. People v. Livingston, 8 Barb. (N. Y.) 253. In Mississippi, a land patent issued under the act of Mar 15, 1852, which required that the "patent shall be signed by the governor and attested by the secretary with the great seal of the State." was held to be good if signed by the governor and sealed by the great seal, even though not signed by the secretary of state. Exum 7. Brister. 35 Miss. 391. In Arkansas, patents are to be signed by the governor and sealed with the great seal of the State. State 7. Morgan, 52 Ark. 150. In West Virginia, in Jarrett Stevens. 36 W. Va. 445, Brannon, J., says: "The act of May, 1779, in the form of grant, and by express enactment, required such seal. The grant is an act of great solemnity and can only be issued as the law directs. While the commonwealth's grant cannot be generally attacked, yet if void on its face it may be. 2 Lom. Dig. 388; Patterson v. Winn, 11 Wheat. (U. S.) 380. In such case, we have no need to regulating patents for State land are founded upon general principles of law and equity, and are, as a rule, applicable as well to patents issued by the United States for its public lands as to those issued by the States.1 (2) Issuance.-The existence of a patent implies a compliance with every prerequisite. The presumption is that the officer issuing the patent has done what the law requires of him.2 The issuance of a patent must be performed according to law; and if issued against law, it is void, and those claiming under it acquire no title nor right.3 bring in matter dehors the grant, but itself affords record evidence of the matter invalidating it. In the Virginia Court of Appeals, in Carter v. Edwards, 88 Va. 205, it seems to be conceded that the want of a seal would invalidate the grant. A deed of an individual will not pass land without seal. Cromwell v. Tate, 7 Leigh (Va.) 301; 30 Am. Dec. 506; Pratt v. Clemens, 4 W. Va. 443; 2 Minor's Inst. 651. I do not see why it is not indispensable in a commonwealth's grant. It is the highest evidence of the authority of the act, the signum, or mark of the genuineness of its act, and of its finality. It is the sign of sovereignty. In Doe v. Roe, 14 Ga. 252, though the decision was that there was evidence to show there once had been a seal, it seems conceded that a seal is indispensable to a State grant of land. The court said: 'It is the signature of the governor, and the great seal which gave it effect and validity.' In Hunter v. Williams, 1 Hawks. (N. Car.) 221, the court said that public lands could be granted only as the legislature authorized; that as that required a grant to be authenticated by the governor and countersigned by the secretary, and as the grant involved was not so countersigned, it was the same as if no mode had been adopted, and was held void. My own opinion is that the want of a seal invalidates a patent." The duplicate copy of a lost land patent authorized by the Illinois school law of 1857, § 96, to be issued by the State auditor, need not have the seal of the State affixed, to render it admissible in evidence for the same purposes for which the original might have been offered. Jackson v. Berner, 48 Ill. 203. 1. PUBLIC LANDS, vol. 19, pp. 354, 355; Brown v. Huger, 21 How. (U.S.) 305. 2. Bingham on Real Estate 85; 3 Starkon Ev. 1248, 1250; Hartwell v. Root, 29 Johns. (N. Y.) 347; 10 Am. Dec. 232; Barry v. Gamble, S Mo. 88; Parkinson v. Bracken, 1 Pin. (Wis.) 174; 49 Am. Dec. 296; Polk v. Wendal. 9 Cranch (U. S.) 98; subnom. Polk v. Wendell, 5 Wheat. (U. S ) 304; Patterson v. Jenks, 2 Pet. (U. S.) 237; Groves v. Slaughter, 15 Pet. (U. S.) 490; Gibson v. Chouteau, 39 Mo. 536; Jackson v. Marsh, 6 Cow. (N. Y.) 281; Sutton v. Menser, 6 B. Mon. (Ky.) 433; Surget v. Doe, 24 Miss. 118; Ray v. Barker. 1 B. Mon. (Ky.) 364; McMillan v. Hutchinson, 4 Bush (Ky.) 611; Schnee v. Schnee, 23 Wis. 377; 99 Am. Dec. 183, note 186; Mayor, etc. v. Eslava, 9 Port. (Ala.) 577; 33 Am. Dec. 325; People v. Mauran, 5 Den. (N. Y.) 389. A sale of lands forfeited to the State for non-payment of rent reserved in a grant thereof will be assumed to have been in accordance with the State; but an omission of any of its requirements will not invalidate the title of a grantee, as against a subsequent grantee of the State. DeLancy v. Piepgras, 63 Hun (N. Y.) 169; Ġilchrist v. Middleton, 108 N. Car. 705. The presumptions that arise in support of a patent for public lands issued by the State can have no force in the face of the facts that the State selection of the same was originally void and that the selection has been validated by Congress. Chant v. Reynolds, 49 Cal. 213. 3. State v. Delesdemer, 7 Tex. 76. Though the issuance of a patent upon a junior location is unauthorized, the patent is voidable only and not void. Gullett v. O'Connor, 54 Tex. 408. The statute of limitations does not begin to run against the patentee of lands until the time of the issuance of the patent. Ring v. Gray, 6 B. Mon. (Ky.) 368; Dubois v. McLean, 4 McLean (U. S.) 486. (3) Validity and Conclusiveness.-A valid patent cannot be issued for lands to which the State has no title, or which may not be granted. If the land is reserved from sale, the patent is void. A patent is good only for so much of the land which it purports to convey as is properly included in it.3 A patent issued without authority of law is void, and if void on its face may be assailed by anyone. So a patent obtained by fraud will The register of the land office must not issue a patent for State lands until the applicant surrenders his certificate of purchase. Duncan v. Gardner, 46 Cal. 24. A public grant or patent need not be delivered or accepted in order to vest title, but takes effect immediately after the date of issuance. Ex parte Kuhtman, 3 Rich. (S. Car.) 257; 55 Am. Dec. 642. A land patent is not operative against the rights of a third person existing before it was issued. One purchasing after the issuance, whose whole claim originates after its date cannot search into the imperfections of the previous title of the patentee. Such patent may be impeached if tainted by fraud, procured by imposition or in entire excess of the proceedings on which it is founded. Smith v. Vasbinder, 77 Pa. St. 127. 1. Coffee v. Groover, 123 U. S. 1; Robinson v. Bailey, 26 Fed. Rep. 219; Garrett v. Weaver, 70 Tex. 463; Parker v. Baines. 59 Tex. 15; AttorneyGen'l v. Thomas, 31 Mich. 365; Hoover v. Thomas, Phil. (N. Car.) 184; Webster v. Clear (Ohio 1892), 31 N. E. Rep. 744; Roseberry . Hollister, 4 Ohio St. 297; Stoddard v. Chambers, 2 How. (U. S.) 284; U. S. v. Arredondo, 6 Pet. (U. S.) 728; Rechart v. Felps, 6 Wall. (U. S.) 160; New Orleans v. U. S., 10 Pet. (U. S.) 731; Best v. Polk, 18 Wall. (U.S.) 112; Governeur v. Robertson, 11 Wheat. (U. S.) 332. A patent for and including part of the 500,000 acre grant, if issued as for swamp land, is void and conveys nothing. Laugenour v. Shanklin, 57 Cal. 70. A patent for tide lands as swamp is void. Knight 7. Roche, 56 Cal. 15. The fact that swamp lands are within the limits of an incorporated city will not avoid a patent when not appearing on its face. McNear Hutchinson, 31 Cal. 177. 2. Best v. Polk, 18 Wall. (U. S.) 112; Stoddard v. Chambers, 2 How. (U. S.) 284; Governeur v. Wheat. (U. S.) 332. Robertson, II A court of law will receive a parol evidence that the officers of State have granted lands forbidden to be granted, and will take notice that such grant is void. Den v. Cathey, 1 Murph. (N. Car.) 162. 3. Jarrett v. West, 1 Har. & J. (Md.) 501; Delaware, etc., Canal Co. v. Dimock, 47 Pa. St. 393. A land warrant issued in Virginia, and a patent issued thereon for lands described as and declared to be within the State are simply void as to lands within the limits of Maryland. Baker v. Swan, 32 Md. 355. A grant of public land made by a special commissioner whose want of authority has not been shown, and whose acts have not been repudiated by the government, conveys good title. Groesbeck 7'. Golden (Tex. 1887), 7 S. W. Rep. 362. A patent for land granted by a sister State is one of those public acts to which every other State is bound to give full faith and credit under the constitution of the United States: therefore the invalidity of the patent cannot be drawn collaterally into question by the courts of another State on a suggestion that the survey on which the patent was founded was a forgery. Lassly v. Fontaine, 4 Hen. & M. (Va.) 146; 4 Am. Dec. 510. 4. Webster 7. Clear (Ohio, 1892), 31 N. E. Rep. 744; Todd v. Fisher, 26 Tex. 239; Wright v. Rutgers, 14 Mo. 585. A patent issued by virtue of an unconstitutional act is void on its face. Winter v. Jones, 10 Ga. 190; 54 Am. 379. A title is not void because the offcer in extending it has not incorporated into it the evidence of the concession or sale. The want of authority of an officer which renders a title void is not shown by proof of mere error of the officer in extending a title to one in fact not legally entitled, not prevail against a subsequent valid title.1 A patent once issued, after having been signed, countersigned, and delivered, cannot be recalled, nor impeached collaterally, nor cancelled by any act of the government officers. If the patent is not void on its face, it cannot be impeached collaterally.3 (4) Effect.-A difference of opinion exists in the different State tribunals as to the effect of the patent in regard to vesting the legal title. In some States it is held that the issuance of the patent vests the legal title, and that not until the patent issues is the patentee vested with complete legal title. In other States the courts hold that the title takes effect by relation to the first steps of the proceedings, and that the patent does not pass the title, but is merely evidence that it has passed.5 but whom he supposed to be. Haurick v. Jackson, 55 Tex. 17. The governor's and surveyor general's certificate, required by the act of April 10, 1862, in relation to swamp lands, is indispensable to the validity of the State's patent, and it not having been given, the patentees may be ousted. People v. Center, 66 Cal. 551. A patent issued by the governor of a State in pursuance of an express grant is not void upon its face and passes the legal title to the property therein granted. It may be impeached for fraud or set aside for other sufficient cause, but it cannot be assailed collaterally. State v. Sioux City, etc., R. Co., 7 Neb. 357. California Pol. Code, § 3500, requires an affidavit of certain facts in the case of one desiring to purchase State lands. Held that this affidavit is indispensable to the validity of the patent. Milledge v. Hyde, 67 Cal. 5. A government grant never in fact issued by the officer purporting to have issued it, or by subsequent alterations made to confer other rights than those conferred at its issue, is absolutely void, and may be shown to be so by a subsequent grantee. Haurick v. Čavanaugh, 60 Tex. 1. 1. Wright Rutgers, 14 Mo. 585; Winter. Jones, 10 Ga. 379; 54 Am. Dec. 379: Wilson v. Shiveley, 11 Oregon 215: Attorney-Gen'l v. Thomas, 31 Mich. 365. 2. Hennen . Wood, 16 La. Ann. 263; Franklin . Woodland, 14 La. Ann. 184: Merrill. Roberts, 64 Tex. 441; Spofford v. Bennett, 55 Tex. 293. 3. Bingham on Real Estate 85; People v. Livingston, 8 Barb. (N. Y.) 253; Jackson v. Lawton, 10 Johns. (N. Y.) 23; 6 Am. Dec. 311; Jackson v. Hart, 12 Johns. (N. Y.) 77; 7 Am. Dec. 280; Norvell v. Camm, 5 Munf. (Va.) 233; S Am. Dec. 742; Jackson v. Marsh, 6 Cow. (N. Y.) 281; Brady . Begun, 36 Barb. (N. Y.) 533; People v. Mauran, 5 Den. (N. Y.) 398; Parmelee v. Oswego, etc., R. Co., 6 N. Y. 75; Hill v. Miller, 36 Mo. 182. This rule does not apply to sales and conveyances by State municipal officers for the non-payment of taxes and other like cases. The party who claims the right under that class of proceedings is bound to prove all that is required to make the conveyances regular and valid by other evidence than the deed. Bingham on Real Estate 85; Sharp v. Spier, 4 Hill (N. Y.) 76; Varick v. Tallman, 2 Barb. (N.Y.) 113; Williams v. Peyton, 4 Wheat. (U. S.) 77; Jackson v. Shepard, 7 Cow. (N. Y.) 88; 17 Am. Dec. 502; Striker v. Kelly, 2 Den. (N. Y.) 323. 4. Green . Liter, 8 Cranch (U. S.) 229; Jones v. Bache, 3 Wash. (U. S.) 199; Delaware, etc., Canal Co. v. Dimock, 47 Pa. St. 393; Reed v. Bullock, Litt. Sel. Cas. (Ky.) 510; 12 Am. Dec. 345; Bodley v. Tavlor, 5 Cranch (U. S.) 191; Roads v. Symmes, 1 Ohio 281; 13 Am. Dec. 621; Brill v. Stiles, 35 Ill. 305; 85 Am. Dec. 364; Moore v. Wilkinson, 13 Cal. 487; Seekright V. Bogen, Hayw. (N. Car.) 177; Dickey. Hoodenpile, 1 Hayw. (N. Car.) 359: Den v. Mooney, 1 Murph. (N. Car.) 401. 5. 3 Washb. on Real Prop. 192; Stoddard 7. Chambers, 2 How. (U.S.) 284; Hunter v. Hemphill, 6 Mo. 106; Innerarity v. Mims, i Ala. 660; Goodlet v. Smithson, 5 Port. (Ala.) 245; 30 Am. Dec. 561; Jones v. Inge, 5 Port. (Ala.) 527; Bullock v. Wilson, 5 Port. |