Opinion of the Court.

of San Ildefonso and the other of Pojoaque. The new demarcations thus created, if they did not continue up to the trial below, certainly so continued for many years. The description of the capacity of Trujillo found in the alleged act of possession and of his official character given by Sena, is more aptly appropriate to the demarcation of Pojoaque as it existed after the the division and subsequent to the making of the alleged grant. From this circumstance may well arise the reflection that if the papers were not executed until at or about the time their existence was publicly asserted in 1872, the mind of the draughtsman might inadvertently have taken into consideration the demarcation of Pojoaque created after June, 1846, and which had many years obtained, and have thus overlooked the state of things existing in 1846.

2. The impossibility of deducing from the testimony of the two Senas proof sufficient to overcome the grave doubt as to the genuineness of the grant already engendered by the proof referred to, is further confirmed by considering the state of the evidence on the subject of possession.

In the petition for grant Ortiz is represented as living at Pojoaque, and as asserting that he found himself at that time "with land so considerably restricted as not to furnish a fair subsistence for the support of the large family" he provided for, and it was further represented that the tract which was solicited possessed "the advantage of containing fertile lands for cultivation, pasture and water sufficient, and else which is needed for raising stock." In the proceedings instituted be-. fore the surveyor general in 1872 the land embraced within the boundaries mentioned in the grant was marked on a sketch filed with the petition as aggregating about 115,200 acres, while a survey made by the United States in 1876-asserted by petitioners in their petition filed below to be incorrect gave the area as 33,250,39 acres. The brief for defendants in error, however, now declares that the claim is limited to not exceeding eleven leagues, the claim as confirmed by the court below. In the petition of 1872 it was averred that from the date Ortiz was placed in possession he "and his heirs had cultivated a portion of said grant and the rest they have used in

Opinion of the Court.

herding their animals and in obtaining wood." The only proof, however, introduced by the petitioners before the surveyor general in 1872, bearing upon the occupancy or cultivation of the tract in question by Ortiz and those claiming under him, were statements contained in the depositions of Antonio Sena, Ramon Sena and Pablo Dominguez. These witnesses, however, spoke only in general terms. Antonio Sena and Dominguez simply testified that Juan Luis Ortiz and his heirs had always occupied the land and it had always been reputed to be theirs, while Ramon Sena thus expressed himself:

"Ortiz lived upon the land during his lifetime, and his heirs have continued to occupy it since his death, and it has been continuously occupied by him and them, and they have always been the reputed owners of the land, and respected as such."

The evidence introduced at the trial below, however, tended to show that the upper portion of the tract in question had been claimed by the heirs of the father of Juan Luis Ortiz under an alleged prior grant to their ancestor, and that portions of such tract had been occupied and cultivated by some of said heirs, under such claim; and a number of witnesses, relatives and neighbors of Juan Luis Ortiz during his lifetime, testified not merely that they had never known Juan Luis Ortiz to have occupied or cultivated the land, but that the existence even of the alleged grant of 1846 was not known or heard of in the neighborhood until its presentation in 1872 to the surveyor general for confirmation. Further, it is established, though Juan Luis Ortiz may have lived at Pojoaque in June, 1846, he took up his residence at Santa Fe in the house of his son Gaspar not very long after the date named. In fact, the widow of Gaspar in her testimony said that Juan Luis Ortiz died about 1861 or 1862, and that he resided at her house in Santa Fe for about twenty to thirty years before his death. If, however, we accept the statement of another witness, a relative named Jose Ortiz, aged 58 years at the time he testified, Juan Luis Ortiz died in 1859 or 1860, and lived with his son Gaspar, and clerked in the store of that son in Santa Fe for ten or twelve years before he (Juan Luis Ortiz) died. It would thus appear that Juan Luis Ortiz left Pojoaque and the vicinity of this grant for

Opinion of the Court.

Santa Fe, if not before, at least very soon after, the date of the asserted grant. The widow of the son Gaspar, however, did not give any evidence tending to show any knowledge on her part of any cultivation or use of the tract by or on behalf of Juan Luis Ortiz, during her acquaintance with him, which must have extended back at least to the time of her marriage to the son, which she stated to have been in 1848. Particularly she did not explain how he could have so occupied and cultivated when living at her house in Santa Fe and acting as clerk for her husband.

Despite the great weight of the adverse testimony above referred to, the claimants in the court below introduced no evidence whatever as to possession, cultivation or improvement of the alleged granted land, except that in the opening of their case there was introduced the ex parte testimony of the witnesses before the surveyor general on the first investigation.

3. The foregoing considerations, weighing against the validity of the asserted grant, are fortified by the fact that although Juan Luis Ortiz and his son Gaspar lived, prior to 1854 and subsequent thereto, in Santa Fe, where was located the office of the surveyor general of New Mexico, and the act authorizing the presentation of claims to that official was passed in 1854, it was not until 1872 that the alleged grant made its public appearance. There are also many other facts and circumstances in the record casting the gravest doubt on the genuineness of the alleged grant, and tending to contradict the testimony of the Senas. To avoid too much prolixity, however, we shall not refer to them.

All the foregoing considerations render it unnecessary to examine the questions which are pressed in argument as to the form of the alleged grant here relied on, the claimed inattention to the requirements of the regulations of 1828, and: the non-production of an expediente or of a testimonio of title, upon which questions we refrain from expressing any opinion whatever. Luco v. United States, 23 How. 528; United States v. Castro, 24 How. 346; United States v. Moorehead, 1 Black, 227; United States v. Knight, Id. 228; Peralta v. United States, 3 Wall. 434; Van Reynegan v.

Statement of the Case.

Bolton, 95 U. S. 33, 35. The view we have taken of the proof also conclusively negates the premise of fact upon which it is argued that there was archive evidence of the grant, (as this premise must rest upon the testimony of Ramon Sena alone,) and therefore brings the case directly under the rule laid down in United States v. Cambuston, 20 How. 59; United States v. Castro, 24 How. 346; United States v. Moorehead, 1 Black, 227, and Feralta v. United States, 3 Wall. 434.

It results that it becomes unnecessary to examine the legal questions to which at the outset attention was called, and that The court below erred in confirming the grant, and its decree so doing is reversed and the cause remanded to that court with directions to enter a decree rejecting the claim and dismissing the petition; and it is so ordered.

GUARANTY SAVINGS BANK v. BLADOW.

ERROR TO THE FOURTH JUDICIAL DISTRICT COURT FOR RICHLAND COUNTY, NORTH DAKOTA.

No. 184. Submitted January 81, 1900.- Decided February 26, 1900.

The power to review and set aside the action of local land officers exists in the general land department.

When an entry is cancelled, after due notice to the entryman, and after a hearing in the case, it is conclusive against him everywhere, upon all questions of fact; and it cannot be regarded as a mere nullity, when set up against his mortgagee, even though such mortgagee had no notice of the proceeding to cancel the certificate.

Such an entry does not transfer the title to the land, but simply furnishes prima facie evidence of an equitable claim for a patent, and the use of the certificate for that purpose is subject to be destroyed by its official cancellation.

THIS action was brought to foreclose a mortgage, owned by the plaintiff in error, upon certain land in North Dakota which the defendant in error claimed was his, and not subject to the lien of the mortgage. It was brought in the proper state

Statement of the Case.

court, and the trial resulted in a judgment in favor of the defendant, declaring him to be the owner of the land; that the mortgage of the plaintiff in error was no lien upon it, and that it should be cancelled as an apparent cloud upon the title of the defendant.

The plaintiff appealed from this judgment to the Supreme Court of the State, where it was affirmed, 6 N. D. 108; 69 N. W. Rep. 41, and the case was brought here on writ of error.

The material facts are as follows: On January 6, 1881, one Anderson filed in the proper land office at Fargo, in the then Territory of Dakota, his homestead application to enter the land which is involved in this action. On July 20, 1881, he appeared before the register and receiver, and, under section 2301, Revised Statutes, commuting his homestead to a preëmption entry, made final proof of his claim, which was allowed and a final certificate issued, which was filed in the office of the register of deeds of the proper county on July 25, 1881. After the filing of proof, and on July 20, 1881, Anderson mortgaged the land to one H. E. Fletcher, who on June 20, 1882, assigned the mortgage to the plaintiff. Both the mortgagee and the assignee acted in good faith, and each instrument was executed for a valuable consideration.

On May 8, 1882, Anderson conveyed the land to one R. M. Ink, who on April 7, 1883, conveyed the same to one J. S. Ink, and on January 6, 1885, J. S. Ink conveyed the premises to the defendant.

All of the above were warranty deeds and duly recorded.

On March 14, 1882, after the final proof had been made by Anderson and passed upon by the register and receiver of the 'land office, and the record had been transmitted to the General Land Office at Washington, the Commissioner held the entry of Anderson upon said land, and directed the register and receiver of the local land office to hold the entry for cancellation, upon the ground that the testimony in the final proof made by Anderson for the land in question was evasive and failed to show six months' residence.

On January 22, 1886, the defendant filed in the land office at Fargo his application and affidavit to contest the entry of

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