Moffat v. United States

delivered the opinion of the court. He stated the facts-in the foregoing language, and continued :

These cases present the same questions, and may be consid *30 ered together. In our judgment none of the positions of the appellants justifies our interference with the decrees of the court belpw. The presumption as to the regularity of the proceedings which precede the issue of a patent of the United States for land, is founded upon the theory that every officer charged with supervising any part of them, and acting under the obligation of his oath, will do his duty, and is indulged as a protection against collateral attacks of third parties. It may be admitted, as stated by counsel, that if upon any'state of facts the patent might have been lawfully issued, the court will presume, as against such collateral attacks, that the facts existed; but -that presumption has no place in -a suit by the United States directly assailing the .patent, and seeking its- cancellation for fraud in the conduct of their' officers. In such a suit the burden of proof -is undoubtedly, in the first instance, on the government to show a fatal irregularity or corrupt conduct on their part; but when a case is established, which, if unexplained, would warrant a conclusion against them, the burden of proof is shifted, and they must show such integrity of conduct and such a compliance with the law as will sustain the patent. Its validity is, then, determinable, like any other controverted fact, upon the weight of evidence produced in support of and against their action.

There was no presumption here in favor of the officers which the testimony produced by the complainant did not entirely rebut and overthrow. Numerous witnesses, living in the immediate neighborhood of the land, testified that they were well acquainted with it, had been frequently upon it, that no one resided there, and that no improvements were made as stated in the pre-emption papers. They also testified that they never knew nor heard of persons by the names of the alleged preemptors, nor of the persons whose names were used in the attempted proof of settlement' and cultivation. Neither the register nor the receiver came forward to disprove the conclusions which this testimony justified, that the pretended preemptors and patentees were fictitious persons. The suggestion that real parties may have appeared before the register and the receiver as pre-emptors and witnesses, having the names used, *31 though usually known by different- names, is far-fetched, and merits no consideration where the fact, with reasonable explanation for the use of the unusual names, was not established, nor proof adduced of the settlement on, and improvement of,~ the land. No such attempt was made, and if it had been it would, according to the evidence received, have signally failed.

. The position that, as the frauds charged were committed by officers of the United States, the court erred in not holding' their acts to be binding, and .in not giving to the patents the force of valid conveyances, is certainly a novel one. The government does not guarantee the integrity of its officers nor the. validity of their acts. It prescribes rules for them, requires an oath for the faithful discharge of their duties, and exacts from them a bond with stringent conditions. It also provides penalties for their misconduct or fraud, but there its responsibility ends. They are but the servants of the law, and, if they .depart from its requirements, the government is not bound. There would be a wild license to crime if their acts, in disregard of the law, were to be upheld to protect third parties, as though performed in compliance with it. The language used in the case of Pope’s Lessee against Wendell sanctions no such doctrine. (5 Wheat. 293, 304.) It was there used with reference to collateral attacks upon patents, in cases where the irregularities were committed by officers in the exercise of their admitted jurisdiction, and can have no application to the acts of officers in fabricating documents in the names of persons having no real existence.

• The patents being issued to fictitious parties could not transfer the title, and no one could derive any right under a conveyance. in the name of the supposed patentees. A patent to a fictitious person is, in legal effect, no more than a declaration that the government 'thereby conveys the property to no one. There is, in such case, no room for the application of the doctrine that a subsequent lona fide purchaser is protected. A subsequent purchaser is bound to know whether there, was, in fact, a patentee, a person once in being, and not a mere myth, and he will always be presumed to take his conveyance upon the knowledge of the .truth in this respect. To the applica *32 tion of this doctrine of a Iona fide purchaser there must be a genuine instrument having a legal existence, as well as one appearing on its face to pass the title. It cannot arise on a forged instrument or one executed to fictitious parties, that is, to no parties at all, however much deceived thereby the purchaser may be. Even in the case of negotiable- instruments, where the doctrine is carried farthest for the protection of subsequent parties acquiring title to the paper, it cannot be'invoiced •if the instrument be not genuine, or if it be executed without authority from its supposed maker. Floyd’s Acceptances, 7 Wall. 666, 676; Marsh v. Fulton County, 10 Wall. 676, 683.

As to the position that no offer is made in the bills to return the scrip received for the - land, only a word need be said. The pretended patentees, who are supposed' to have- given the scrip, being mere myths,- having no actual. existence, it would be idle to offer to return it-to them; and for the same reason they can have no agents to act in their behalf.

A strenuous effort is made by counsel to bring these cases within the doctrine declared in United States v. Throckmorton, 98 U. S. 61, and Vance v. Burbank, 101 U. S. 514, but without’ success. It was held in those cases that the fraud which will justify the setting aside of the judgment of a tribunal specially appointed to determine particular facts, must be such as prevented the unsuccessful party from fully presenting his case, or which operated as an imposition upon the jurisdiction of the tribunal. Mere false testimony, or forged documents, are not enough if the disputed matter has been actually presented to and considered by the tribunal. Here officers, constituting a special tribunal, entered into a conspiracy; and the frauds consist- of documents which they had fabricated, and presented with their judgment to those having appellate and supervisory authority in such matters ; and thus a fictitious proceeding was imposed upon the latter as one which had actually taken place. It was a fraud upon the jurisdiction of the officers of the Land Department at Washington, and not the mere presentation to them of doubtful and disputed testimony.

jDecrees affirmed.