legal title from the United States, the patent must prevail, for, as said in Bagnell v. Broderick, 13 Pet. 450, congress has the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the federal government in reference to the public lands declares the patent the superior and conclusive evidence of legal title. Until its issuance, the fee is in the government, which, by the patent, passes to the grantee, and he is entitled to recover the possession in ejectment." "It is this unassailable character [of the patent] which gives to it its chief-indeed, its only-value as a means of quieting the possessor in the enjoyment of the land it embraces. If intruders upon them could compel him in every suit for possession to establish the validity of the action of the land department, and the correctness of its ruling upon matters submitted to it, instead of being a means of peace and security, would subject his rights to constant and ruinous litigation. He would recover one portion of his land if the jury were satisfied that the evidence produced justified the action of that department, and lose another portion, the title whereto rests upon the same facts, because another jury came to a different conclusion." Smelting Co. v. Kemp, 104 U. S. 641. "Until set aside or enjoined it must, of course, stand against a collateral attack with the efficacy attending judgments founded upon unimpeachable evidence. So with a patent for land of the United States, which is the result of the judgment upon the right of the patentee by that department of the government to which the alienation of the public lands is confided, the remedy of the aggrieved party must be sought by him in a court of equity, if he possesses such an equitable right to the premises as would give him the title if the patent was out of the way. If he occupy, with respect to the land, no such position as this, he can only apply to the officers of the

government to take measures in its name to vacate the patent or limit its operation. In any event, whether the officers of the government have been misled by the testimony produced before them or not, the conclusions reached by them are not to be submitted for the consideration of every jury before which the patent may be offered in evidence, in the trial of an action." Steel v. Smelting, etc., Co., 106 U. S. 447; Grant v. Jaramillo, 6 N. M. 313. The defendant in error, holding under the patent, had a superior right of possession, which the patent vested in her, and the patent, being valid upon its face, was not subject to a collateral attack such as was attempted by the plaintiffs in error in the court below in their tender of proof that the defendant in error, when she entered upon the possession of the patented lands embraced in her homestead, knew that said lands were claimed as a part of the Nicolas de Chavez grant. Consequently the court committed no error in excluding such evidence.

JURISDICTION: patent conclu

sive evidence of conveyance.

Plaintiffs in error assign as another ground of error that the court refused to allow them to prove that the lands embraced in the Nicolas de Chavez grant never belonged to the United States, and upon this they contend that they were denied the right to show that the patent issued to defendant in error was void. We have practically disposed of this assignment, as the testimony which the plaintiffs in error contend would have shown that the United States never owned the land patented, and which the court excluded, is the same testimony offered by them to prove a perfect Spanish title. This assignment of error presupposes the plaintiffs in error to have had a perfect title to the land embraced in the grant that the court below was compelled to declare valid in this case; and, being prior in time to the patent, the land did not belong to

the United States when the patent issued, and that it was, therefore, a void conveyance. We have endeavored to show that the court below was powerless to take cognizance of the grant title, or declare it of any value whatever; and, the land being a part of the territory ceded to the United States, of which the court took notice, the patent was conclusive evidence in the court below of the proper conveyance of the land, and that the United States was the rightful owner at the time the patent issued.

The cases cited by counsel for plaintiffs in error in his brief to show that a patent is void when issued for lands that have been previously sold, reserved, or otherwise disposed of, or never belonged to the United States, while sound as applied to the facts of the cases in which the decisions were rendered, are not in point in this case. Patents were held void because the land had been previously sold, reserved, or otherwise disposed of by the United States itself, or some state or territory thereof, and not by a foreign government. For instance, in the case of Morton v. Nebraska, 21 Wall. 660, a patent was granted for agricultural lands, which proved to be saline lands. The court declared the patent void, for the reason that saline lands had always been reserved from sale as agricultural lands. In the case of Polk, Lessee, v. Wendell, 9 Cranch, there was a conflict between two grants of land by the state of North Carolina, and the prior grant was sustained and the junior declared void. And so in other cases. But the principle governing these cases is this: that the prior act of the sovereign in disposing of lands in the United States must govern; but this principle can not be applied to this case.

Counsel for plaintiffs in error, Mr. Clancy, suggests, but declines to argue, that the lands embraced in the homestead patent were reserved from sale by section 8 of the act of 1854, which created the office of

surveyor general of New Mexico, and required him to report all grants for confirmation, and then provided: "Which report shall be laid before congress for such action thereon as may be deemed just and proper with a view to confirm bona fide grants, and give full effect to the treaty of 1848 between the United States and Mexico; and, until the final action of congress on such claims, all lands covered thereby shall be reserved from sale or other disposal by the government, and shall not be subject to the donations granted by the previous provision of this act." By act of congress of May 24, 1858, the New Mexico land district was created, and the general land laws were extended to the lands of this territory, and, if this reservation took effect upon the taking effect of the law of 1854, the land would not be subject to entry in 1882, when the homestead entry was made. But we agree with the opinion of counsel for plaintiffs in error that the reservation took effect upon the coming in of the report of the surveyor general to congress, when its location and extent could be known and respected until final confirmation by congress, or under its authority; otherwise the greatest confusion would prevail, and the land laws would be practically inoperative. We are strengthened in this view by the construction given this clause by the commissioner of the general land office in his instructions to the surveyor general, dated October 10, 1884, and urging prompt examination and report upon a certain grant, in which he says: "Though the claim, if found valid, can not be definitely located till after confirmation, as a part of the inquiry you will endeavor to ascertain approximately, or as nearly as possible, the location and boundaries or limits of the same, and advise this office thereof, to the end that the land covered by the claim. may be withheld or withdrawn from settlement or disposal pending final action thereon." Furthermore,

the homestead entry upon which the patent was issued under which the defendant in error claims, and which shows that the public land laws were operative, was allowed in 1882, or long after the passage of the act containing provisions for the reservation. If, therefore, the reservation took effect upon the report of the surveyor general, it has no application in this case, inasmuch as the surveyor general did not report upon the Nicolas de Chavez grant until December, 1887, or five years after the homestead entry was made, final proof made thereon, and final certificate issued. By the act of March 3, 1891, congress repealed section 8 of the act of July 22, 1854, which provided for the reservation of the land, and this of itself eliminates the question of the reservation of the land from this

case.

IMPROVEMENTS:

There remains, then, for our consideration the fifth assignment of error, which is that the court erred in excluding tendered proof of the value evidence. of the land in controversy, and the improvements made thereon by the plaintiffs in error. It is urged that under section 2581, Compiled Laws, New Mexico, plaintiffs in error have a right to recover the value of improvements made by them upon the land, and have a lien upon the land for the same. We think not. So far as this case is concerned, the land embraced in the homestead patent must be regarded as being part of the public domain at the time the homestead entry was made. There could be no rightful possession in plaintiffs in error, and the law was not intended to be available in behalf of a party wrongfully in possession; nor does this statute apply to this case for the further reason that such a lien would interfere with the disposition of the public lands of the United States. "The power of congress in the disposal of the public domain can not be interfered with or its exercise embarrassed by any state (or