If the appellant could call upon us at all to defend our patent, we would cite authorities as to the interpretations of exceptions and reservations. But as we contend that he had no right to question our patent at all, he cannot put us to that much trouble, and we decline to do so.
But appellant says that the case of Railroad Co. v. Smith (9 Wallace, 98), allowed a patent to be questioned. So it does, by a party connecting himself with the title of the government, as was the case there.
If a State sells land to which it has no title, the defendant can show a title in the United States. This may be allowed, although Judge Sawyer, in Patterson v. Lynch (Circuit Court), held that the patent proved the character of the land as well as conveyance. And this I think the better opinion. But in a case where the United States has all thetitle, and it is a question whether her officers have done their duty, the rule is entirely different. There the regularity of proceedings and correctness of action cannot be attacked.
JUDGES: McKinstry, J.
OPINION
McKINSTRY, Judge
It was not suggested at the argument that lands valuable because of cinnabar or quicksilver ores, are not " mineral lands" within the meaning of the act of Congress, and we shall assume that they are.
The defendant's objection to the patent, that it was " irrelevant," was properly overruled. It is not necessary to decide whether it was for the plaintiff, who relied on the patent, to prove that the land in controversy was not one of the excepted tracts, because an examination of the record shows us no motion for nonsuit was made.
The court below refused to permit the defendant to introduce evidence tending to prove that the land, the possession of which is sued for, was within the exception. If the plaintiff was not required to prove that the land was not within the exception, we are convinced that the defendant was entitled affirmatively to establish that it was within it.
The exception contained in the patent, introduced by the plaintiff, is part of the description, and is equivalent to an exception of all the subdivisions of land mentioned, which were " mineral" lands. In other words, the patent grants all of the tracts named in it which are not mineral lands. If all are mineral lands, it may be that the exception is void; but the fact cannot be assumed, as by its terms the exception is limited to such as are mineral lands, and does not necessarily extend to all the tracts granted.
We think the defendant should have been allowed to prove that the demanded premises were mineral lands.
Judgment and order reversed, and cause remanded for a new trial.