#### DANIEL M. PARKISON, *Pt’ff in Error,*vs. CHARLES BRACKEN, *Def't in*Error,

S- *Error to Iowa County. )*

In an action at law, the patent of the United States is conclusive evidence that the title to the land is in tho patentee, and evidence will not be admitted to establish an adverse *equitable*title.

II there should be two patents for tho same tract of land, the elder patent must prevail at law.

If the defendant has an *equitable title*to tho land, superior to that of tho patentee, he must resort to a court of equity to assert it.

The Receivers receipt for the same tract of land embraced in the patent, showing that it wo.s entered by the defendant at tho land office, anterior to the date of the patent, is not evidence tor the defendant to defeat a recovery in an action of ejectment brought by the patentee, and should not be read to the jury on the trial; and the District Court properly excluded all testimony of facts which would only go to show an equitable title in tho defendant adverse to the patent.

A continuance, asked for *by the*defendant, to enable him to procure testimony which would only go to establish an equitable title in himself adverse to the patent, for the purpose of defeating a recovery at law by the patentee, ought not to be granted.

A patent which appears on its face to have been regularly issued, will be presumed to have been signed and executed according to law, until the contrary shall be made to appear, and tho court cannot undertake to say, from the mere inspection of the hand writing, that the name of the President was not signed by the proper person.

The law presumes that publio officers do their duty, and that in their official acts they conform to the requirements of the law, until the contrary shall be made to appear.

The act of Congress to confirm land patents, approved March 3,1841, is valid and effectual, and cures all defects provided for in patents that had been previously issued: it relates back to the date of thepatent confirmed, and it makes no difference that a suit was ponding on the patent at the passage of the act.

This was an auction of ejectment, brought by Bracken against Parkison, in the Iowa District Court, to recover a tract of eighty acres of land. At the September term, 1841, when the cause was called for trial, Parkison moved the court for a continuance of the cause, for the purpose of enabling him to procure testimony from the General Land Office at Washington, to prove various matters tending to show that he had a superior equitable right to enter the land in controversy; in order that by connecting such testimony with the receiver’s receipt which he held for the same tract, of anterior date, lie might defeat the patent which had been issued to Bracken. The District Court refused to grant the continuance, and decided that the facts which he expected to prove *14would not be competent testimony in the defence. Upon the trial, the plaintiff below offered in evidence a patent from the United States to him for the land in dispute, dated 27th April, 1840. The patent was signed “ Martin Van Burén, J>y M. Van Burén, jr. sec’y.” From the appearance alone of the writing, it would seem that both names were not written by the same hand. The defendant’s counsel objected to the reading of the patent in evidence, alledging that it was evident from its face, that the President’s name was not written by the secretary authorized to sign patents, and that no other person could lawfully sign *the name*of the President to a patent. There was no evidence offered to sustain the objection, which objection the court overruled, and permitted the patent to be read to the jury. Alter the plaintiff’s testimony was closed, the defendant offered to read in evidence to the jury, the receipt of the Receiver of public money at Mineral Point, dated I5th March, 1830, by which it appeared that on that day he entered, at the Land Office at Mineral Point, ttie tract of land in controversy, and to accompany it by other testimony, similar to that, to procure which he asked a continuance; to all which testimony the plaintiff’s counsel objected, which objection the court sustained, and rejected 1he testimony. Exceptions were taken to these various decisions, and a verdictand judgment were' rendered in favor of the plaintiff. To reverse this judgment, Par-kison has prosecuted this writ of error, and has assigned the following errors in the record of the proceedings in the court below:

I. The court below erred in overruling the first motion of the defendant below for a continuance,

II. The court below erred in overruling the second motion of the defendant below for a continuance.

III. The court below erred in admitting in evidence the patent offered by the plaintiff below.

IV. The court below erred in excluding the Receiver’s receipt offered by the defendant below as evidence.

V. The court below erred in excluding the evidence offered by the defendant below.

VI. The court below erred in refusing to instruct the jury as requested by the defendant below.

By order of the District Court, the patent was produced for the inspection of this court, and the Receiver’s receipt was also pro*15'duced and examined. Upon argument, the sixth error assigned was abandoned by the plaintiff in error.

Moses M. Stkoxg for plaintiff in error:

The two first errors assigned are in tho decisions of the court in overruling the motions of the defendant below fora continuance. As (he evidence sought to be procured by the continuance was substantially tho same as that offered on the trial and rejected by the court, they will be considered in connection with the error in excluding the evidence offered by ihe defendant; for it will be admitted, that if the court'decided correctly in rejecting the evidence that was offered, then the motion fora continuance for the purpose of procuring other evidence of the same character, was properly overruled.

We will first inquire whether the objection to the patent read in evidence by the defendant in error on the trial below, and which is embraced in the third assignment of error, was well taken. I will assume the position *that title*to land can only pass from the United States in pursuance of law, and that in all cases where the laws of Congress prescribe one mode in which the title shall be passed, no other mode can be substituted by the officers of the government. By the former laws of Congress, all patents for land had to be signed by the President himself. By the present law, which was passed prior to the date of the patent in this case, a secretary appointed for that purpose may sign for the President. See acts of Congress of March 2, 1833, and July 4, 1836. We contend that, under the present law, no person but the secretary is authorized to sign tho name of the President to the patent. The patent produced by the defendant in error as evidence of his title, shows on its face that the names of the President and secretary were not written by the same hand. No testimony could make the matter more plain. But the defendant in error insists that this defect is cured by the act of Congress to confirm land patents, approved March 3, 1841. Although it cannot be questioned that Congress may pass laws to vest the title to land in any person, in the first instance, without limitation or restriction, yet it cannot, by a *general*law, make a patent valid that was invalid before. The rights of other persons than the patentee, cannot be prejudiced by the retrospective character of the act. Again: the act of confirmation was passed after the commencement of this suit. When the suit was commenced, the patent was bad, and the plain*16tiff below could not then have recovered upon it; the act cannot relate back so as to affect or entirely change the rights of the parties in the course of litigation at the time of its passage.

The record shows that the Receiver’s receipt to Parkison for the land in dispute bears date the 15th March, 1836, and the patent by which the defendant in error recovered below, is dated 7th April, 1840, and the question now arises: did the District Court err in rejecting it and other evidence offered on the trial?' The receipt, connected with the other evidence offered, would have shown an inchoate title in the plaintiff in error prior to the date of the patent. It was a link in his testimony, and the couit could not know but it would be followed by a patent according to-the entry. According to all authorities upon the subject, Parkison had an equitable title to the land. The testimony which-he offered, would have shown that his title was acquired before the patent issued to Bracken, and the court ought to have permitted him to establish it by proof *Although,*technically speaking,, his title was but an equitable one, if it was better than Bracken’s it ought to have been sufficient for his defence. Conflicting decisions are to be found upon this principle, but the weight of authority and of reason, is in favor of the position assumed, in support of which I will refer the court to the following authorities: *Brush, et al.*vs. *Ware, et al. appellees,*15 Peter’s 93. *Polk's lessee vs. Wendell,*9 Cranch, 87. S; C. 5 Wheat. 293. *Reader, et al. vs. Barr, et al.*4 Ohio Rep. 446. *Miller, et al. vs. Kerr, et al. 7*Wheat. 1. *Hoofnagle vs. Anderson, 7*Wheat. 212. *Ross vs. Doe,*1 Peters, 655. In the last case, the party was allowed *to*go-behind the patent in a trial at law to defeat its legal effect.

Dunn for defendant in error:

This case principally depends upon the correctness of the decision of the District Court, in rejecting the testimony offered by the defendant below. The plaintiff m error insists that the District Court erred in not permitting him to prove an equitable title in-himself, anterior *to*the date of the patent to the defendant in error. A patent from the United States is conclusive as to the title to lands, and in an action at law, a party cannot set up any adverse title to the patentee or his assigns or legal representatives. If he has an equitable title, a court of law cannot decide upon it; he must apply to chancery for relief. If there are two patents for the same tract, the rule applies in favor of the elder patent, and in *17such case, the junior patent, if it amounts to any thing, is only evidence of an equitable title. See *Wilcox vs. Jackson,*13 Peters, 498. *Ross vs. Doe,*1 Peters, G58. *U. S. vs. Arredondo,*■6 Peters, 725. *Bagnell et al. vs. Broderick,*13 Peters,436,450. 11 Wheat. 580. 5 Wheat, 293. '7 Wheat. 151.

The plaintiff in error insists that the patent read in evidence by the defendant in error upon the trial was not signedas the law requires, and that it is,therefore void. There was no evidence offered to impeach the patent, and there is no principle of law that will authorize the court to say, from *inspection, only,*that an official paper has not been signed as it purports on its face to have been done. Admitting that the error existed in the signing of the patent, as is alledged, the United States only could take advantage of the defect, and they had full power to correct it, and the correction has been made. The act of Congress of March 3,1841, was passed to confirm titles that had been defectively granted to *the*purchasers of *the*public lands, and cures the alledged defects in this patent,1 if they existed at all.

Burkett in continuation.

The correctness of the decision of the District Court, in admitting the patent as evidence, it seems to me cannot be questioned. A patent is a record, and proves itself. When required as a matter of evidence, nothing further is necessary than its production, and if it is regular on its face, it must be admitted. This patent appears to be regular on its face, and although the error may exist in signing, as is contended, it was not void; at most, it was only voidable, and independently of the act of Congress passed in confirmation, the plaintiff in error could not impeach it in this suit. Where a patent, regular on its face, is voidable, it can only be avoided by a proceeding in chancery for that purpose ; *Jackson vs. Lawton,*10 Johns. R'ep. 23. If a patent is issued by fraud or mistake, unless the fraud or mistake appears upon its face, it can only be avoided by a suit in chancery for that purpose; *id. Jackson exdem. Houseman vs. Hart,*12 Johns. Rep. 77. Further: the court is bound to presume, until it shall be made to appear otherwise, that where the law requires public officers to perform certain acts in a particular manner, they have done their duty in the manner which the law prescribes: This is a presumption of law: See 3 East. 200. *Hartwell vs. Root,*19 Johns. *18Rep. 347. *Polk's lessee vs.*Wendell, 9 Cranch, 98. S. C. 5 Wheat. 304. *Patterson vs.*denies, 2 Peters, 237.

But if the patent could be impeached in this suit, (which is not admitted,) how was it to be done? Surely by him who alledged the irregularity proving that it existed. This has not been attempted, and the court is asked to decide in his favor, upon bare inspection. Tho court is required to know, judicially, the hands writing of the officers of the government, and to decide from that knowledge whether signatures be genuine or not. There can be no authority found to sustain the position, and it cannot be necessary to refer to any to refute it.

A patent, then, being a record, and proving itself, requiring no other evidence to support its authenticity or establish its validity, and this being regular on its face, and purporting to have been issued in the manner prescribed by law, and standing unimpcach-ed by any testimony against if, the court is bound to acknowledge it for what it professes to be, and give it full *weight*as evidence of title in the patentee.

This point being disposed of, as I trust satisfactorily, the fourth and fifth errors assigned may be considered together, and they will dispose of the whole case. It is not necessary again to go over the arguments,that have been offered to the court, and the authorities that have been read to show, that in an action at law, the patent is *conclusive*evidence of title in the patentee or those claiming under him, and that an adverse equitable title cannot he set up to defeat it; and that if there be an adverse equitable title, a court of chancery is the only tribunal that can give relief. This is the established doctrine in every state in the Union, (I believe,) where equity courts exist, and the settled rule of the Supreme Court of the United States. The authorities that have been read by the plaintiff in error for the purpose of controverting the principle laid down, do not sustain his position. The most of his cases were appeals in chancery, where bills had been filed to establish equitable titles, and whenever the inquiry has been gone into at law, it has been under some peculiar and extraordinary circumstances, not at all analagous to this case. Tho case of Ross vs. Doe, cited from 1 Peters, is relied upon as authority here. When the court examines the law under which that case was decided, it will be found to have no applicability to this. The conflict of titles in that case, arose under the act of Congress of 3d March, 1803, *19regulating the grants of land and providing for the disposal of the lands of the United States south of the state of Tennessee, 2 Story’s Laws U. S. 893. And the principles decided by the Supreme Court, and the reasons upon which they were based, do not / at all conflict with the general rule that the patent is conclusive in a trial at law.

But it is said that the court ought not to have rejected the evidence that was offered, because it was a link in the chain of title, and the court could not know but it might have been followed by a patent to the plaintiff in error. This argument is more specious than forcible. If ho had a patent of elder date, the production of it would have settled every question. The superior patent is the highest evidence of title, and is not connected with equity by links or chains to make it prevail over all others in a trial at law.

Judge Miller

delivered the opinion of the court:

This was an ejectment, brought by the defendant in error against the plaintiff in error, in *tho*District Court of Iowa county.

The court admitted in evidence, on the part of the plaintiff, a patent purporting to have been signed in the name of tho President of the United States by his secretary for that purpose. The patent appears on its face to have been regularly executed, sealed, and recorded, according to law; but, because the filling up of the patent, and the name of the President, appear to be in the same hand writing, and the signature of the secretary in another, it was thereby inferred that the President had not signed it, or that the secretary had not signed tho President’s name according to the requisites of the statute. The objection was merely made on the ground of this supposition, without offering to produce witnesses to prove that it was not executed according to law. The patent appearing on its face to have been legally executed, sealed, and recorded, it is presumed to have been done by the proper officers until the contrary appears; 3 Starkie’s Evidence, 1248, 1249, 1250. 10 East. 216. 8 East. 200. *Hartwell vs. Root,*19 Johns. Rep. 347. *Polk's lessee vs. Wendell,*9 Cranch, 98. 5 Wheat. 304. 2 Peters, 237. 15 Peters, 490.

But if this objection to this deed were sustained by legal proof, the act of Congress entitled an act to confirm land patents, approved March 3d, 1841, cured this alledged defect. It is alledged, however, that it only became a legal patent, and vested the legal title to the land in the patentee, on the date of its confirmation, *20and not before. Congress has the sole power to dispose of the public domain, and to declare iho dignity and effect of tides etna-natingfromthe United States, andas it is not restrained by the constitution from passing such a law, its propriety and constitutionality cannot be questioned. Even in the states where legislatures are restricted and restrained from passing laws impairing the obligation of contracts, such statutes of confirmation or correction are common. The Supreme Court of Pennsylvania, in the case of *Underwood vs. Lilly,*(10 Sergt. & Rawle, 97,) decided that the act of assembly of that state confirming certain judgments in York county, was not unconstitutional, although retro-active. A similar decision was made on the constitutionality of the act curing defects in previous acknowledgments of deeds by femmes covert. *Barnet vs. Barnet,*15 Sergt. & Rawle, 72. *Tate vs. Stooltzfoos,*15 Sergt. & Rawle, 35. *Mercer vs. Watson,*1 Watts’ Rep. 356. A similar decision was made by the same court, respecting an act providing for the closing of *the*concerns of banking institutions, although that act operated upon suits ponding at the time of its passage, so as to render them valid: *Blackney vs. The Bank of Greencastle,*17 Sergt. & Rawle, 64. Similar decisions have been made, to a very great number, on similar laws, some of which will be found in 1 Rawle, 181. 2 Watts, 433. 2 Rawle, 374. 7 Sergt, & Rawle, 280. 11 Sergt. & Rawle, 191.

The fourth and fifth errors assigned, are upon the rejection of a duplicate receipt from the Receiver of public moneys for the Mineral Point Land District, to defendant, for the land in dispute, and other evidence connected with the possession and entry of this land previous to the patent. This receipt is dated on the 15th March, 1836, and the patent of plaintiff is dated onthe'27th April, 1840, but it does not appear when the patentee paid for the land and obtained his receipt. In a court of law, the patent is conclusive. Even in the case of conflicting patents, the first patent is conclusive, and relief can only be had in a court of chancery. 10 John. Rep. 23. 12 John. Rep. 76. 9 Cranch, 98. 15 Peters, 105. 7 Wheaton, 1. 15 Peters, 490. It is true that there is no objection in going into facts behind the patent in support of the title, particularly in states where there is no court of chancery, it may be necessary; but in this Territory we have a court of chancery of sufficient power to inquire into the equitable interests of the parties. There might'have been no impropriety *21in receiving the evidence offered, but it could not prevail against the patent of the plaintiff, under the charge of the court; but as there was no offer to accompany the evidence offered with a patent, the court was right in rejecting it. An equitable tide cannot prevail in an ejectment against a legal tide. -In an ejectment, the parties are confined to their legal rights. If there is equity in the case, it must be disposed of in the court of chancery.

Moses M. Strong, for pl’ff in error.

T. P. Burnett and F. J. Dunn, for def !t in error.

The first and second errors assigned relate to the refusal of the court to put off the trial on affidavits filed. As these affidavits contain a statement of facts not then in the possession of the party, as the ground of the application, and as it abundantly appears that the same or similar matters were properly rejected by the court, and that these would also have been rejected if offered, the court will not reverse the judgment,

The sixth error assigned was withdrawn, in the argument.

*Judgment*of the District Court affirmed with costs.