Petition for Rehearing.
(171 Pac. 582.)
On petitions for rehearing and motion for modification. Motion sustained in part, and petition for rehearing is denied.
Mr. A. G. Shaw, for the petition and motion.
Mr. George M. Brown, Attorney General, and Mr. John O. Bailey, Assistant Attorney General, contra.
In Banc.
MoCAMANT, J.The defendants have presented an able argument in support of their petition for a rehearing. It is earnestly contended that we have misapprehended the effect of the evidence on the question of laches. There is room for a difference of opinion as to the date when the state became chargeable with notice of the frauds upon which this suit is based, hut we are satisfied upon the whole case of the correctness of our conclusions in this behalf as *58stated in the former opinion. A re-examination of the evidence to which our attention is directed confirms onr conclusions that C. W. Clarke was not an innocent purchaser.
23. Defendants complain that we have not noticed the act of Congress approved March 3, 1905, repealing the legislation under which the base lands were relinquished. This act is as follows:
“That the Acts of June fourth, eighteen hundred and ninety-seven, June sixth, nineteen hundred, and March third, nineteen hundred and one, are hereby repealed so far as they provide for the relinquishment, selection and patenting of lands in lieu of tracts covered by an unperfected bona fide claim or patent within a forest reserve, but the validity of contracts entered into by the Secretary of the Interior prior to the passage of this Act shall not be impaired: Provided, That selections heretofore made in lieu of lands relinquished to the United States may be perfected and patents issue therefor the same as though this Act had not been passed, and if for any reason not the fault of the party making the same any pending selection is held invalid another selection for a like quantity of land may be made in lieu thereof.”
The conclusions announced in our former opinion restore to plaintiff the base lands which were acquired fraudulently, which were conveyed by guilty parties to the United States and which have never been accepted by the General Land Office. We find no provision in the above statute which amounts to an acceptance of the deeds of relinquishment by which these properties were conveyed. In the absence of acceptance by the United States no title passed by these deeds. We showed in our former opinion that the United States will not knowingly accept a conveyance of land from a party whose title is acquired by fraud. We should not lightly impute to Congress an intention to depart *59from this salutary rule. Until the conveyance of the base lands has been accepted by the United States there can be no contract entitled to enforcement under the repealing statute.
It is argued in support of plaintiff’s petition for a rehearing that title to the base lands did not pass until the selections were approved for patent. This contention is out of harmony with the doctrine of Daniels v. Wagner, 237 U. S. 547 (Ann. Cas. 1917A, 40, 59 L. Ed. 1102, 35 Sup. Ct. Rep. 740), and Sawyer v. Gray, 237 U. S. 674 (59 L. Ed. 1170, 35 Sup. Ct. Rep. 842), which seem to us to overrule Clearwater Timber Co. v. Shoshone County, 155 Fed. 612, on which plaintiff largely relies.
24. Our attention is called to the fact that many of the selections cover unsurveyed lands and that under no circumstances can lands be patented prior to survey. It is argued that as the General Land Office could not issue patents to these selected lands at the date when they were selected, it was without jurisdiction to accept deeds to the corresponding base lands. Under the regulations of the Interior Department the selector of unsurveyed lands acquired an inchoate right thereto which ripened into a patent on the survey of the lands and on compliance by the selector with the rules applicable to such selections: 28 L. D. 523; 29 L. D. 393; Daniels v. Northern Pacific, 43 L. D. 381, 384; Clarke v. Halverson, 45 L. D. 54, 55. This was a valuable right; it was not based on settlement or purchase. Its only foundation was the conveyance of the relinquished lands. The existence of this right is inconsistent with the assumption that the selector retained title to the base lands. On the acceptance of the conveyance of these lands by the General Land Office title thereto passed to the United States. It is true that the selector ’s title to the selected lands might fail through non*60compliance with the regulations and that it might then become the duty of the United States to reconvey the base lands, but this possibility does not militate against the correctness of the" above conclusions.
Plaintiff calls attention to certain cases in which the data filed in the General Land Office were insufficient to constitute compliance with the regulations and it is contended that in such cases the commissioner was without jurisdiction to accept the deeds of relinquishment and approve the corresponding selections. In this branch of their contention counsel for plaintiff lose sight of the distinction between error and lack of jurisdiction. It may be that the letters of approval criticised by counsel were based on an insufficient showing, but in each case there was a deed of relinquishment and a corresponding selection of government land. In no case was the deed of relinquishment delivered for the creation of a floating right of selection. Plaintiff’s authorities sustain its contention that this latter practice is unauthorized by the act of Congress of January 4, 1897: Roughton v. Knight, 219 U. S. 537, 547 (55 L. Ed. 326, 31 Sup. Ct. Rep. 297); Western Lumber Co. v. Willis, 160 Fed. 27, 31 (87 C. C. A. 183). In Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U. S. 301, 308, 309 (47 L. Ed. 1064, 23 Sup. Ct. Rep. 692, 24 Sup. Ct. Rep. 860), Mr. Justice Peotcttam says:
“There can be, as we think, no doubt that the general administration of the forest reserve act, and also the determination of the various questions which may arise thereunder before the issuing of any patent for the selected lands, are vested in the Land Department.”
On the delivery of the deeds of relinquishment and the filing of applications to select equivalent acreage, the jurisdiction of the General Land Office attached. The tribunal which formulated the rules of procedure *61had authority to determine whether relinquishments and selections conformed thereto. "When the General Land Office approved the relinquishments, title to the base lands passed and the title cannot be divested by the decree of a court rendered in a cause to which the United States is not a party.
A few errors have been pointed out in the description and tabulation of properties listed in the supplements to the previous opinion. These errors will be corrected and copies of the supplements in their final form will be furnished the parties.
The petitions for rehearing are denied.
Motion to Modify Sustained in Past and Rehearing Denied.