Plaintiffs claim and derive title from the United States, by patent dated January 20, 1853.
Defendant derives title by patent dated ¡November 1st, 1839.
Possibly, in an action at law, it might be deemed sufficient to refer to the authorities which have held-the elder patent conclusive evidence of title. Baynell v. Broderick, 13 Pet. R. 436; Manciers v. Lawton, 10 John. R. 22; Bruner v. Manlove, 1 Scam. R. 156; Milliken et al. v. Lessee of Starling, 16 Ohio R. 61; Surget et al. v. Little, 24 Miss. R. 118.
Courts of equity may establish the right of a prior patent founded on a prior equity. Isaacs v. Steel, 3 Scam. R. 97.
So the validity of the patent may be contested at law for fraud, or where the government had no title, or its agents had no authority to sell. Patterson v. Wrein et al., 6 Cond. R. 355; Polks lessee v. Wendall et al., 3 ibid. 320; Wilcox v. Jackson, 13 Pet. R. 498.
This last is urged as a ground of objection to the defendant’s title in this case. The Quincy land district was created by act of February 19th, 1831, the officers of which were commissioned March 2d, and the last in time, qualified September 19th, 1831, and the first entry in that office was made on December 14th, 1831.
The land lies in this district as then created, and, it is insisted, could not be sold by the officers of the Springfield district, after the creation of the new one.
This, as a general proposition, is true, and was so held in Matthews v. Zane's lessee, 5 Cranch. R. 92.
But it may have its exceptions, and we think this case presents one, as there is not sufficient evidence to exclude it. Hie burden of proof must lie upon the plaintiffs, who would contradict the presumptions arising from the patent.
Looking to the laws, the instructions under and constructions of the laws, by the government, and the evidence, we feel warranted in believing that the land officers at Springfield had authority to make this sale.
By marginal reference in the patent, it appears to have been issued upon preemption certificate Mo. 6,028, and this is corroborated by the fact of the patentee having made and filed his affidavit for preemption on May 13th, 1831, together with proof by another witness.
This application was duly made within the year, under the preemption act of May 29th, 1830. It is not clear, by the evidence, why the money was not paid and the preemption allowed within the year. But-we may presume there was sufficient ground for its postponement, and allowance under subsequent acts of congress, when such title is collaterally attacked, unless the preemption is excluded by the proof. For the judgment of the land officers is final upon the preemption in all collateral trial.
We cannot resist the conclusion that the patentee was prevented from entering this tract within the year, by reason of the township plats not having been returned, and this appears by the correspondence between the general and local land offices. See vol. 2 Public Lands, part 2, numbers 488, 501, 502 and 503.
The right of settlers thus prevented from making preemption, was preserved and extended by the act of July 14th, 1832, and March 2d, 1833. 2 Purple Stat. 1833. And entries made in the old district, subsequent to the creation of a new district, and before the opening of the office in the new, were confirmed by act of July 2d, 1836, Sec. 1. 2 Purple Stat. p. 1334.
From the correspondence between the commissioner of the general land office, and the land officers at Springfield, and a general circular, see Land Laws, part 2d, numbers 488, 500, 501, 502, 503, 531, it appears that preémptors were prevented from making proof and entry for want of township plats, and that such entries were afterward completed at the Springfield office on lands lying in the Quincy district.
According to the decision in Matthews v. Zane's lessee, above referred to, and the opinion of the Attorney General of June 21st, 1836, applying it to the act of May 29th, 1830, defendant was too late with his application and proof at the Springfield office. Land Laws, part 2d, number 64, pp. 100, 101. But then it is equally clear that defendant’s entry, or appliaction to preempt'was within the confirmatory act of July 2d, 1836, and was by it confirmed within the interpretation of that act by the attorney general (see same, part 2, numbers 69 and 72), in which last opinion the attorney general held an entry good in the confirmatory act, which he had held void under previous acts for want of power in the land officers of the old district to make the sale. This we regard as a sound interpretation of these acts, and it has been adopted and acted on by the departments, as we must infer from the correspondence above referred to, and the patent before us.
We must, in view of all the circumstances in evidence, conclude that this patent was duly issued by authority, whatever may have been wanting in the inception of the purchase.
The land having been thus fairly sold to the defendant, by the "United States, and by him occupied for years, destroys, not only the legal supremacy of plaintiffs’ title, but all apparent equity upon the facts now before us.
We are, therefore, of opinion that the defendant has exhibited a legal paramount title to the whole of the premises in question.
Judgment affirmed.