which solemnities are the evidences of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign-manual of the President and the seal of the United States are those solemnities."

The same principle is found in the opinion of the court, delivered by Mr. Justice Story, in the case of Green v. Liter, 8 Cranch, 229.

Many decisions of State courts of the highest character to the same effect are cited in the brief of counsel for relator in this case, among which may be mentioned Ex parte Kuhtman, 3 Rich. Eq. R. 257; Downer v. Palmer, 31 Cal. 513. The subject is very fully and ably discussed by Mr. Justice Field, in the case of Leroy v. Jamison, 3 Saw. 369.

It is also said that there was no acceptance of this patent by the grantee, and for that reason it is ineffectual to convey title. It is not necessary to enter into much discussion on this subject, because the acceptance of a deed may be presumed under circumstances far short of what was admitted to exist in this case.

The doctrine on this point is well stated by Attorneygeneral Crittenden, in the case of Pierre Mutelle, in 1841, as found in 3 Opinions of Attorneys-general, 654, which was a case like the present, in regard to the duty of the Secretary to deliver the patent then lying in the office.

"My opinion," said he, "is that the title to the land did pass to Pierre Mutelle at the date of the patent to him, though that patent still remains in the land office without any actual tradition of it to any one. The patent was issued by authority and direction of law; and upon general principles, where the patentee does not expressly dissent, his assent and acceptance are to be presumed from the beneficial nature of the grant. But it is hardly necessary to resort to such presumptions, because, in this and in all such cases, the acts required to be done by the claimant and actually done by him in the preparation of his claim for patenting are equivalent to a positive demand of the patent, and amount to an acceptance of it, The patent, in the meaning of the act referred to, is granted to the patentee from its date, though he may never actually see or receive it, and is valid and effectual to pass the title to the land.

"All legal muniments of title belong to him who owns the land, * * but as the patent is a recorded evidence of title, always accessible, no material prejudice can result to the true owner from a stranger getting possession of it." The long pursuit of this claim by McBride, his repeated demand for the patent after it had been perfected, and his persistent effort to obtain possession of it, are ample proof of his acceptance of the grant of which it is the evidence.

It is argued with much plausibility that the relator was not entitled to the land by the laws of the United States, because it was not subject to homestead entry, and that the patent is, therefore, void, and the law will not require the Secretary to do a vain thing by delivering it, which may at the same time embarrass the rights of others in regard to the same land.

We are not prepared to say that if the patent were absolutely void so that no right could possibly accrue to the plaintiff under it, the suggestion would not be a sound one.

But the distinction between a void and voidable instrument, though sometimes a very nice one, is still a well-recognized distinction on which valuable rights often depend. And the case before us is one to which we think it is clearly applicable. To the officers of the land department, among whom we include the Secretary of the Interior, are confided, as we have already said, the administration of the laws concerning the sale of the public lands. The land in the present case had been surveyed, and the lands in that district generally had been opened to pre-emption, to homestead entry, and to sale under their control. The question whether any particular piece of land belonging to the government was open to sale, to pre-emption, or to homestead right, is in every instance a question of law as applied to the facts for the determination of those officers. Their decision of such question is judicial in its character, as also the decision of conflicting claims to the same land by different parties.

It is clear that the right and the duty of deciding all such questions belong to those officers, and the statutes have provided for original and appellate hearings in that department before the successive officers of higher grade up to the Secretary. They have, therefore, jurisdiction of such cases, and provision is made for the correction of errors in the ex

ercise of that jurisdiction. How can it be said that when their decision of such question is finally made and recorded in the shape of a patent, that instrument is absolutely void for such errors as these? If a patent should issue for land in the State of Massachusetts, where the government never had land, it would be absolutely void. If it should issue for land once owned by the government, but long before sold and conveyed by patent to another who held possession, it might be held void in a court of law on the production of the senior patent. But such is not the case before Here the question is whether this land had been withdrawn from the control of the land department by certain acts of other persons, which include it within the limits of an incorporated town. The whole question is one of disputed law and disputed facts. It was a question for the land officers to consider and decide before they determined to issue McBride's patent. It was within their jurisdiction to do so. If they decided erroneously the patent may be voidable, but not absolutely void.

us.

The mode of avoiding it if avoidable is not by arbitrarily withholding it, but by judicial proceeding to set it aside, or correct it if only partly wrong. It was within the province of those officers to sell the land and to decide to whom and for what price it should be sold, and when, in accordance with their decision, it was sold, the money paid for it, and the grant carried into effect by a patent under the seal of the United States and the signature of the President, that instrument carried with it the title of the United States to the land.

From the very nature of the functions performed by these officers, and from the fact that a transfer of the title from the United States to another owner follows their favorable action, it must result that at some stage or other of the proceeding their authority in the matter ceases.

It is equally clear that this period is at the latest, precisely when the last act in the series, essential to the transfer of title, has been performed. Whenever this takes place, the land has ceased to be the land of the government; or, to speak in technical language, the legal title has passed from the government, and the power of these officers to deal with it has also passed away. The fact that the evidence of

this transfer of title remains in the possession of the land officers, can not restore the title to the United States, or defeat that of the grantee, any more than the burning up of a man's title deeds destroys his title.

What is this final act which closes the transaction?

In the case of Marbury v. Madison, this court was of opinion that when the commission of an officer was signed by the President, and the seal of the United States affixed to it, the commission was complete, and the officer appointed entitled to its possession, so that he could enforce its delivery by the writ of mandamus. In regard to patents for land, it may be somewhat different, and it is not necessary in this case to go quite so far.

But we may well consider that in all nations, as far as we know, where grants of the property of the government, or of the crown, are made by written instruments, provision is made for a record of these instruments in some public government office. Our experience in regard to Mexican, Spanish, and French grants of parts of the public domain purchased by us from those governments, teaches us that such is the uniform law of those countries. We have already shown that under the English law all letters-patent are enrolled, and that this is the last act in the process of issuing a patent which is essential to its validity.

We are safe in saying that every State in the Union has similar provisions in reference to its grants of land, and it has been the effort of most of them to compel public record of all conveyances of land by individuals or corporations.

The acts of Congress provide for the record of all patents for land in an office and in books kept for that purpose. An officer called the recorder is appointed by law to make and to keep these records. This officer is required to record every patent before it is issued and to countersign. the instrument to be delivered to the grantee. This, then, is the final record of the transaction-the legally appointed act which completes what Sir William Blackstone calls title by record; and when this is done, the grantee is invested with that title.

We do not say that there may not be rare cases where all this has been done and yet the officer in possession of the patent be not compellable to deliver it to the grantee. If,

for instance, the clerk whom the President is authorized by law to appoint to sign the President's name to the patent, should do so when he has been forbidden by the President, or if, by some mere clerical mistake, the intention of the officer performing an essential part in the execution of the patent has been frustrated. It is not necessary to decide on all the hypothetical cases that could be imagined.

But we are of opinion that when all that we have mentioned has been consciously and purposely done by each officer engaged in it, and where these officers have been acting in a matter within the scope of their duties, the legal title to the land passes to the grantee, and with it the right to the possession of the patent. No further authority to consider the patentee's case remains in the Land Office. No right to consider whether he ought in equity, or ou new information, to have the title or receive the patent. There remains the duty, simply ministerial, to deliver the patent to the owner-a duty which, within all the definitions, can be enforced by the writ of mandamus.

It is not always that the ill consequences of a principle should control a court in deciding what the established law on a particular subject is, and in the delicate matter of controlling the action of a high officer of the executive branch of the Government it would certainly not alone be sufficient to justify judicial interposition. But it may tend to reconcile us to such action as we feel forced to take, under settled doctrines of the courts, to see that any other course would lead to irremediable injustice.

If the relator in this case can not obtain his patent he is wholly without remedy. He can not sue the United States, in whom is the title in the absence of the patent, for the United States can be sued in no other court than the Court of Claims, and we have decided that that court has no jurisdiction in such case. Bonner v. The United States, 9 Wall. 156. There is no one else to sue, for the title is either in the relator or the United States. It may be many years before the city of Grantville, the party now claiming against relator, will get a patent, and it may never do so.

The relator is therefore utterly without remedy, if the