dissenting.
I feel compelled to withhold my assent .to this judgment. The ground of my dissent is not that in a proper case the validity of a patent of the United States for the conveyance of lands may not be attacked in a suit at law by proving that it ivas issued without the requisite authority, but that this is not a proper case for the application of that rule. To show that I *634recognize the' existence of the right to make such proof, if the person'who offers it is in a position to do so, it is only necessary to refer to Simmons v. Wagner, 101 U. S. 260, where, as the organ of the court, I announced its decision, that one in possession under a certificate issued by a proper officer in the regular course of his official duty, showing that he had bought and paid for the land, might successfully defend an action of ejectment brought against him by the holder of a patent issued upon an entry by another party made long after his rights accrued; and this because, after the purchase under which' he was in possession the land was no longer a part of the public domain, and the officers of the United States had no authority in law to sell it a second time.
In my opinion, however, such proof can only be made by one who holds a right at law or in equity which is prior in time to that of the patentee, dr by one who claims under the United States by a subsequent grant or some authorized recognition of title. Unless I have misinterpreted the cases on this subject, that has always been the doctrine, of this court.
In Polk's Lessee v. Wendall, 9 Cranch, 87, the controversy was between two persons, one holding under a patent issued by the State of North Carolina, dated August 28, 1795, and the other under another patent for the same land, issued by the same State, dated April 17, 1800, and the question was, whether, as against the second patent the first was good. In Wilcox v. Jackson, 13 Pet. 498, the defendant was an officer of the United States, in possession of a military post under the authority of the government, and the plaintiff was the holder of certificates of the register and receiver of the proper land office, showing that he had bought and paid for the land under ]a preemption entry. The officer in possession, holding under and for the United States, Avas allowed to prove that at the time of the entry and purchase the land had been reserved from the mass of public lands, and that its sale by the officers of the government Avas unauthorized and void. In Stoddard. v. Chambers, 2 How. 284, the controversy Avas betAveen one claiming under a Spanish grant and a patentee under the location of a New Madrid certificate. The confirmation of the-*635grant was not made until after the location, but as the right of the grantee-was prior in time to that of the New Madrid claimant, he Ayas permitted to show that the land Avas reser\red from sale, and consequently the location of the certificate was unauthorized, and the patent thereunder invalid.. In Easton v. Salisbury, 21 How. 426, the question arose upon substantially the same facts, and Avas decided in the same Avay. In Reichart v. Felps, 6 Wall. 160, the holder of a French settler’s claim, recognized in the grant by Virginia to the United States of the northwest territory, and confirmed or patented by Governor St. Clair, under the act of June 2Ó, 1788, Avas permitted to contest the validity of patents issued by the United States' for the same land, one in 1838 and one in 1853, on t;he ground that the land' had “been previously granted, reserved'from sale, or appropriated,” and therefore the patents were inoperative and void. In Best v. Polk, 18 Wall. 112, the parties Avere the holder of a title under a treaty of the United States Avith the Chickasaw Nation of Indians and a junior patentee. The holder of the elder title was permitted to shoAv that when the claim Avas made under which, the subsequent patent was'issued, the land had been, “ previously granted, reserved from sale, or appropriated,” and consequently no title could be acquired under it. In Newhall v. Sanger, 92 U. S. 761, one side claimed under a patent issued upon the same railroad grant that is involved in the present suit, and the other under a subsequent patent which recited that “ the land was Avithin the exterior limits of a Mexican grant called Moquelamos, and .that a patent had, by mistake, been issued to the [railroad] company.” Such a junior patentee Avas alloAved in that suit to - contest the validity of the elder patent to the company.' The case of Leavenworth, Lawrence and Galveston Railroad v. United States, 92 U. S. 733, was a suit brought by the United States against the railroad company to quiet its title to lands claimed by the company under a land grant. That of Kansas Pacific Railway v. Dunmeyer, 113 U. S. 629, so much relied .on, presented the question as between the claimant under a railroad grant and the holder of a patent from fhe United States issued on a, homestead entry made subsequently. She*636rmam v. Buick, 93 U. S. 209, was between the holder of a patent, of the United States and the holder of a patent from the State of California, claiming under a prior grant from the United States of the same land for school purposes. The Smelting Company Cases, 104 U. S. 636, and 106 U. S. 447, were between those claiming under a patent for a placer mining claim and certain occupants of lots in the town site of Leadville which had been reserved from sale prior to the location of the claim. In Reynolds v. Iron Silver Mining Company, 116 U. S. 687, the question was not one of admitting proof to invalidate a patent,' but as to the legal effect of a patent for a placer mining claim, and it was held not to in: elude veins or lodes within the boundaries of the claim as located on the surface and extended vertically downwards, if known to exist when the patent was issued. In Wright v. Roseberry, 121 U. S. 488, decided at the last term, one party held under a conveyance by the State of California of a tract of land which the State claimed under the grant by the United States of swamp and overflowed lands, and the other under a patent from the United States issued upon a preemption entry. Many more cases of a similar character might be cited, but it is needless to pursue them further. They establish beyond all question that, if one holds under an older title, or if he is in a position under a junior claim to represent the title of the government, he may attack the validity of a patent in a suit at law on the ground that it was issued without proper authority.
On the other hand, it seems to me equally well settled, that if he who seeks to contest the patent is a volunteer, a mere intruder, he will not be heard. Thus, in Hoofnagle v. Anderson, 7 Wheat. 212, the contest was between the holders of two Yirginia military land warrants, who had made their entries on the same tract of land. One entered and got his patent eighteen months before the other located his warrant. At the trial the holder of the junior warrant sought to show that the former grant was “ obtained contrary to law, being founded on a warrant which was issued by fraud or mistake;” but Chief Justice Marshall, in delivering the opinion of the court, said: “ The title of the respondent to the particular tract included *637in his patent was complete before that of the appellants Commenced. It is not doubted that a patent appropriates land. Any defects in the preliminary steps, which are required by law, are cured by the patent. It is a title from its date, and has always been held conclusive against all those Svhose rights did not commence previous to its emanation. Courts of equity have considered an entry as the commencement of title, and have sustained a valid entry against a patent ■ founded on a prior defective entry, if issued after such valid entry was made. But they have gone no farther. They have never sustained an entry made after the date of the patent. They have always rejected such claims. The reason is obvious. A patent appropriates the land it covers; and that land, being no longer vacant, is. no longer subject to location. If the patent has been issued irregularly, the government -may provide means for repealing it; but no individual has a right to annul it, to consider the land as still vacant, and appropriate it to himself.” pp. 214, 215. This seems to me to be the true rule; and one way the government may adopt to annul a patent which has been issued without authority of law, is to grant the land to another, and thus clothe the new grantee with its own power to test the validity of the former proceedings to divest it of title. Such a grantee will thus be made to represent the United States by authority, and he may sue for the land. With such a title, or something equivalent to it, the- courts may properly, as has been done heretofore, allow him to assert his own title, that is, the title of the government, against one which was apparently granted before. Such an attack on the title would be direct, not collateral, as authority to proceed had been given by the government for that purpose.
In Cooper v. Roberts, 18 How. 173, the suit was brought by one holding title under a patent of the State of Michigan conveying a tract of what was claimed to be school land, against one who had got into possession under a lease by the Secretary of War for mining purposes. The title of the State was adjudged to be good as against the United States and the defendant in possession. The defendant then objected to the plaintiff’s right of recovery because “ the officers of the State *638violated' the statutes of Michigan m selling the lands; after they were known, or might have been known, to contain minerals.” As to this, Mr. Justice Campbell, speaking for the court, p. 182, said: “ "Without a nice inquiry into these statutes, to ascertain whether they reserve such lands from sale, or into the disputed fact whether they were known, or might have been known, to contain minerals, we are of. opinion that the defendant is not in a condition to raise the question on this issue. The officers of the State of Michigan, embracing the chief magistrate of the State, and who have the charge and Superintendence of this property, certify this sale to have been made pursuant to law, and have clothed the purchaser with the most solemn evidence of title.' The defendant does not claim in privity with Michigan, but holds an ad verse right, and is a trespasser upon the land to which her title is attached. Michigan has not complained of the sale, and retains, so far as this case shows, the price paid for it. Under thése circumstances we must regard-the patent as conclusive of the fact of a valid and regular sale on this issue.” ;
So in Field v. Seabury, 19 How. 323, the same rule-appears. There it was said that the question whether a grant from á sovereignty or by legislative authority was obtained by fraud was .exclusively between the sovereignty making the grant and the grantee. It seems to me clear that the same rule applies to questions of illegality. The case of Spencer v. Lapsley, 20 How. 264, is equally significant. There the question was as to the validity of a Mexican grant, and the court refused to investigate the fairness of the grant at the instance of one who had “ entered without a color of title,” and in so doing said, again speaking through Mr. Justice Campbell: “Neither the State of Coahuila and Texas, nor the, E-epublic of Texas, nor the' State of Texas, has taken measures to cancel this grant, nor have they conferred on the defendant any commission to vindicate them' fróm wrong: He is a volunteer. The doctrines of the court do not favor such a litigant.”
The last case in this court to -which I will refer in the present' connection is Ehrhardt v. Hogaboom, 115 U. S. 67. There the suit was brought by one claiming title under a patent of the *639United States issued to a preemption settler, against one who contended the patent was void because the lands were, at the time of the preemption entry, swamp and overflowed lands which passed to the State of California under an act of Congress passed in 1850. As a defence to the action the defendant offered to prove the character of the land, but we held this offer was properly denied because he waá, as to the land in dispute, “ a simple intruder, without claim or color of title. He was, therefore, in no position to call in question the validity of the patent of the United States, . . . and requjre the plaintiff to vindicate the action of the officers of the Land Department in issuing it.”
. In some of the state'courts the same ruling has been madet Thus, in Crommelin v. Minter, 9 Alabama, 594, before the Supreme Court of Alabama in 1846, it was decided* that “ a patent, fraudulently obtained, or which has issued in violation of law, is void, and does not authorize a recovery against a party in possession under color of title. But a mere intruder cannot insist on the invalidity of the patent.” And so in Doll v. Meador, 16 Cal. 295, it was held by the Supreme Court of California, in 1860, that “ a patent, not void upon its face, cannot be questioned, either collaterally, or directly, by persons who do not show themselves to be in privity with a common or paramount source of title;” and the coürt, in delivering its opinion, was careful to say, “the point here is as to the status of the party who can raise any question as to its [the'patent’s] validity, when it is regular on its face.”
I eannot but believe this is the true doctrine. If the government is satisfied with what has been done, all others must be; and it will be deemed in law to be satisfied, unless it proceeds itself to correct the error or authorizes some one else to do so.
It only remains to consider what position Doolan and McCue occupy in this litigation. The land was patentéd to the Central Pacific Bailroad Company February 28,1814, and the railroad company conveyed to Carr, the plaintiff below, June 10, 1814. No attempt has been made by the United States, so far as this record discloses, to.annul the patent. On the 10th of November, 1882, Doolan and McCue each entered on 160 *640acres of the land under a claim of preemption settlement. Each of them then made and subscribed a declaratory statement of his intention to claim and preempt the land on which he had settled under the laws of the United States, and presented it to the register of the proper land office; but he refused to receive it on the ground of the existence of the patent to the railroad company. This is''all the claim of title which they have; but the decisions are uniform to the effect that what had thus been done conferred on them no rights as against the United States. Certainly it gave them no right to represent the United States in a suit to avoid the patent which had been issued.
In Frisbie Whitney, 9 Wall. 187, it appeared that in March, 1862, this court decided that what had been supposed to be a valid Mexican grant of the Soscol Kanch was void for want of authority in the Mexican government to make it. At the time of this decision Frisbie was in possession of the quarter section involved in the suit under the Mexican title. Whitney afterwards took forcible possession of the same quarter section and claimed to hold it as a- settler under the preemption laws of the United States.. He applied to the proper land officers to make his declaration under the statute but they refused to receive it. On the 3d of March, 1S63, Congress passed an act, c. 116, 12 Stat. 808, by -which the bona fide purchasers under the Mexican title were allowed to buy the lands from the United States. Frisbie availed himself of this statute and got his patent. Whitney then sued him for a conveyance of the legal title because of the alleged superior equity which lm, Whitney, had acquired by his preemption settlement. This cpurt how'ever decided that a settlement on the public lands of the United States, no matter how long continued, conferred no right against the government, and, it was added, “the land continues subject' to. the absolute disposing power of Congress until the settler'has made the required proof of settlement and improvement and has paid the requisite purchase money.” For this reason the title of Frisbie was sustained and the bill dismissed. The Yosemite Valley Case, 15 Wall. 77, is to the same effect.
*641It has also been, held that a right of preemption can never be acquired by intrusion upon the actual possession of another. Trenouth v. San Francisco, 100 U. S. 251; Atherton v. Fowler, 96 U. S. 513. In the present case, Carr alleges that he was in possession when the entry was made by Doolan and McCue, and this is not denied except by saying that Can’ was not ousted at any time while he was the owner of the land.
As these parties have received from ■ the government no recognition of their preemption entries, therefore, and have not paid the purchase money, they stand before the law as mere volunteers and intruders on the possession of the patentees. They do not and cannot represent the title of the United States as against the patent, and are not entitled to be' heard in opposition to it. As to them, in their present situation, the land was as much segregated from the public domain by the issue of the patent as it would have been if there were no dispute about the authority for its issue.
To show that Congress has been accustomed to treat such preemption settlers as mere intruders and entitled to no consideration by the government, it is only necessary to refer to the act for the relief of purchasers of parts of the Soscol Kanch, just cited, and the act passed March 3, 1887, c. 376 24 Stat. 556, which directs the Secretary of the Interior immediately to adjust, in accordance with the decisions of this court, each of the land grants made by Congress to aid in the construction of railroads, and theretofore unadjusted, and to demand from the several companies a relinquishment of their title to all lands that had been erroneously certified or patented. It there provides, § 4, that if any of the lands so erroneously certified or patented, with a few specified exceptions, have “been sold by the grantee company to citizens of the United States, or to persons who have declared their intention to become such citizens, the person or persons so purchasing in good faith, his heirs or assigns, shall be entitled to the land so purchased, upon making proof of the fact of such purchase at the proper land office, within such time and under such rules as may be prescribed, by the Secretary of the Interior, after the grants respectively shall have been adjusted; and patents *642•of the United States'-shall issue therefor, and shall relate back to the date of .the- original certification or patenting, and the Secretary of the Interior, on behalf of the United States, shall demand payment from the company which has so disposed of such lands of an amount equal to the government price of similar lands; and in case of neglect or refusal of such company to make payment as’hereafter specified, within ninety days after the demand shall have been made, the Attorney-General shall cause suit or suits to be brought against such company for the said amount.”
I cannot believe that one whose claim to rights under the laws of the United States is-thus ignored by Congress in-what Avas decided in Frisbie v. Whitney, ubi supra, to be valid legislation, can avail himself of a Avant of authority in the officers of the government to issue a patent, Avhich is valid on its face, to protect himself. against eviction from the patented land on Avhich he has entered as a trespasser, and without any color of title.