The herald., 1896-03-23
HON. Zach. MONTGOMERY
ON SUITS TO SET ASIDE FRAUDULENT T
LAND PATENTS
His Statement to the Settlers League Of Call
ifornin, Arizona and New 1exico-The
Glasses Of Void Patents What Congress
Should Do in the latter

Hon. Zachariah Montgomery. who in con
junction with the Hon. A. II. Garland, eN
United States attorney general, has been
engaged in an effort 10 have congress ex
! tend the time wherein suits may be brought
by the United States government for The
| recovery of land wrongiuliy patented. has
| just issued to his clients, the officers
and members of the Settlers League of
California, Arizona and New Mexico, q
statement of the "present legal status OF
those Spanish and Mexican land claims in
! California and elsewhere that are covered
by illsg .lly procured United States pat
ents.' The Settlers league is an organiz A.
ton that is interested in having tho lands
| held under pateuts of tho kind noted re-
stored to tho public dom ain in order that
| they may be secured by bona fide settiers.
| The league has a strong membership scat
tered throughout California. Arizona and
| New Mexico, and tho statement of Mr..
| Montgomery will be of great interest to
| thousands of people that have been watch
ing the fight being made in Washington by
himself and associates. Mr.. Montgomery
| says:
| Gentlemen A failure to obtain either
repeal Or suspension o. The act ot con
gress passed March :, 1891 providing
THAT suite by the United States to va
| cate and annul any patent heretofore Is
sued shall only be brought within five
years from the passage OF this act"
renders it proper that as one of your at
torneys who aaalous'y worked for said re-
peal | should briefly and candidiy state to
you my opinion as to the present legal
status of those Spanish and Mexican
land claims in California and elsewhere
that are covered by illegally procured
United States patents.
In order to make myself clearly under
stood i! will bs necessary to say, as was
said in my petition to congress, that there
ttrO nl nf rr.l nat
ents. namely, patents that are absolutely
void and patents thet are not wholly void.
but that are voidable. and ought in Justice
to be made void by a court of equity, be-
cause of the fraud or coliusiou employed
in their procurement. To illustrate, the
difference between thing that is void and
one that is only vodable we will suppose
that 4 gives To Is a power of attorney au-
thcrizug him to sell or otherwise dispose
of q certain piece OF land, describing it.
But suppose that instead OF selling the
particular piece of land described in his
power of attorney he undertakes to sell
and convey another. and wholly different
tract of land. such an unautllorizsd convey
anco would be utterly void. and would re-
qure no suit and no decree of cours to
make it void.
But suppose that instead of attempting
to sell land not embraced in his power, he
sells and conveys the right land, but in
swrldle his princip pal, and conveys the land
for only 10 per cent of it's real value.
Here the deed would not be wholly void,
but only voidabie and would require
decree of court to annul or set it aside.
Because, although procured by fraud aud
ollusion, it was executed by one having
power to execute it.
This illustrates the two classes of illegal
United States land patents by which the
government and people have been wrong
fully despoled OF millions of acres of their
best land.
All such illegal patents as are not wholly
void, but only voidable, are now fully pro-
tected by the limitation law of 1891, and
there is no use to fret or spend any money
OH them.
In view, however. of all the facts that
have been brought TO light, chiefly through
the laborious and thorough Investigations
of Mr.. @. e. Grove, an abbreviated state
ment of which facts are appended to my
recent petition to the president and con-
gress, am convinced that many hundreds
of thousands, aud even millions. of acres
of the best lands in California and else
where are today held under patents that
are utterly void, and that require no suit
and no decree of court to annui them; and
if the law is enforced they can find no pro-
lection under the Limitation law of 1891.
Such, in my deliberate judgment. accord
ing to repeated decisions of the United
States supreme court, are all patents rest
ing on Governor Pico's pretended sales of
mission lands, in cases where the petitions
asking for confirmation showed these
facts.
As set forth in my petition to congress,
there are two classes of void patents, for
Mexican land claims, namely:
First-Patents that are void because rest
ing upon void DEGREES of confirmation, as
in cases where the land commissioners had
no Jurisdiction, and
Secondly, patents that are void for want
of an actual survey of the lands. attempted
to be patented. In this opinion | am
pleased 20 say that the distinguished ex-
Attorney General Garland after the fullest
deliberation, entirely concurs.
So far as void patents of the first class
are concerned; namely patents thot are
void because resting on void DEGREES of
confirmation my opinion is that they are TO
all intents and purposes government lands,
and ought to be dealt with as such by the
land department at Washington.
But as regards land claim over which
the board of commissioners had jurisdc-
ton but the confirmation of which was pro-
cured by fraud and collusion, followed up
by patent that is void. for want of an ac-
tual survey; my opinion is that, III such
cases, the patent being void requires no
suit, as already stated, to make it void !;
and furthermore, while all land patents
not void, however fraudulently procured,
that were in existence on March Sd, 1891
are now protected by said limitation act !;
yet said limitation act does not protect,
nor does it even purport to protect, illegal
DEGREES of confirmation obtained by fraud
and colluslon, unless followed up by real,
that is to say, valid patent.
Therefore in order to make myself
clearly understood, l reiterate, that in all
cases where lands are now claimed under
patents that are void for want of an actual
survey, and also under DEGREES of confirm
alton, that are vodable because OF fraud
and collusion, my opinion is that such de-
crees of confirmation are not protected by
the Limitation law of 1891, and may vet
be attacked and vacated by the govern
ment, as effectualy as if said limitation
act had never been passed.
My opinion further is that what is mostly
needed in order to arouse both the Ameri-
can congress, and the land department at
Washington to a realizing sense OF their
duty in the matter of rescuing from the
hands of illegal holders the vast bodies of
government lands now wrongfully held by
| fraudulent claimants, is for the honest
patriotic citizens of the Pacific states and
territories of every party. and calling, to
make united and determined effort to
expose in all their horrid ugliness, the foul
means that have been and are being re.
sorted to by ungcrupulous corporations
and multi-Inillionaires, for the purpose OF
swindling the government and people out
FMM|S'I;sySSYss 'SI;SSsySSYssyyIMsN8IssyESs||;ss}{ ESs||;} =