Ejectment. Plaintiff deraigned from the Western Pacific Railroad Company. Defendant offered to prove that the lands in controversy were, at the time when the lands along the line of the road were withdrawn from pre-emption, private entry and sale, within the limits of a Mexican grant then sub judice, and therefore within a “ Government reservation,” as that expression is used in the Act of Congress of 1864. (13 Stats. 358.) We think the Court below erred in sustaining the objection to this proof. If the land was within a reservation, it did not pass by the patent to the railroad company. It was so held in Newhall v. Sanger, 92 U. S. 761. In effect, the officers of the Government were expressly prohibited from issuing to the company a patent purporting to convey the lands thus reserved. The case comes within the doctrine laid down in Doll v. Meador, 16 Cal. 295, and the cases subsequently recognizing the authority of that case. The validity of a patent purporting to grant lands which the officers of the Government have no authority, under any circumstances, to convey, may be controverted in any action, directly or collaterally. The patent is void, and a defendant in an action of ejectment may prove the facts showing its invalidity.
Judgment and order reversed, and cause remanded for a new trial.
Subsequently, on petition for rehearing, the following order was made by the Court in Bank.
The Coubt :The rehearing is denied. The decision comes within the rule laid down in McLaughlin v. Powell, 50 Cal. 64.