McGarrahan v. Mining Company

ERROR to the Supreme Court of the State of California.

This was ejectment by William McGarrahan in the District Court of the Twentieth Judicial District of California in and for Santa Clara County, against the New Idria Mining Company, to recover possession of certain lands in that State known as the Rancho Panoche Grande. He claimed them under a patent therefor which he alleged had been issued by the United States to Vicente P. Gomez, his grantor, under the act of Congress to ascertain and settle the private land claims in the State of California, approved March 3, 1851. 9 Stat. 631. The patent was not produced upon the trial; but the plaintiff put in evidence a certified copy of an instrument, as the same was recorded in a volume kept at the General Land-Office at Washington for the recording of patents of the United States for confirmed Mexican land grants in California, being volume 4 of such records, upon pages 312-321 inclusive. The concluding portion of that copy is as follows:--

'In testimony whereof, I, Abraham Lincoln, President of the United States, have caused these letters to be made patent, and the seal of the General Land-Office to be hereunto affixed.

'Given under my hand at the city of Washington, this fourteenth day of March, in the year of our Lord one thousand eight hundred and sixty-three, and of the independence of the United States the eighty-seventh.

[L. S.] 'By the President: ABRAHAM LINCOLN.

By W. O. STODDARD,

'Secretary.

'Acting Recorder of the General Land-Office.'

As the only question decided by this court is, whether the exemplification admitted on the trial of the cause shows upon its face the execution of a patent sufficient in law to pass the title of the United States, no reference is made to the other points which arose in the court below and were elaborately discussed by counsel here.

The District Court rendered judgment for the defendant, which was affirmed by the Supreme Court. McGarrahan then sued out this writ of error.

''Mr. Montgomery Blair, Mr. Matt. H. Carpenter, and Mr. Charles P. Shaw'', for the plaintiff in error.

The recording of a document which the law authorizes to be recorded is evidence of the pre-existence of all that is necessary to authorize the recording. Farrar v. Fessenden, 39 N. H. 268; McCauley et al. v. State, 21 Md. 556; Warner v. Hardy, 6 id. 525; Barton v. Murrain, 27 Mo. 235; Patterson v. Winn, 5 Pet. 239.

The requirement that patents for lands shall be countersigned by the recorder of the General Land-Office is merely directory. and the countersigning of such an instrument is not essential to its validity. Sedgwick, Stat. and Const. Law, 368-374; Rex v. Inhabitants of Birmingham, 9 Barn. & Cress. 925; Cole v. Green, 6 Man. & G. 872; Gale v. Mead, 2 Den. (N. Y.) 160; Marchant v. Langworthy, 3 id. 526; People v. Livingston, 8 Barb. (N. Y.) 253; Juliand v. Rathbone, 39 id. 101; Ayres v. Stewart, 1 Overt. (Tenn.) 221; Hickman v. Boffman, Hard. (Ky.) 348; Spencer v. Lapsley, 20 How. 264; United States v. Sutler, 21 id. 170; Williams v. Sheldon, 10 Wend. (N. Y.) 654; Hedden v. Overton, 4 Bibb (Ky.), 406; Exum v. Brister, 35 Miss. 391; Blount v. Benbury, 2 Hayw. (N. C.) 542; Philips v. Erwin, 1 Overt. (Tenn.) 235; Reid's Lessee v. Dodson, id. 313; Lessee of Stephens v. Bear, 3 Binn. (Pa.) 31; Lessees of Walter v. Beecher, 3 Wash. 375.

If the name of the recorder be omitted in the record, the first section of the act of March 3, 1843 (5 Stat. 627), cures the defect, by making the mere record of the patent conclusive of its due execution, and copies of such record of the same validity in 'evidence as if the names of the officers signing and countersigning the same had been fully inserted in said record.'

Mr. Jeremiah S. Black, contra.

Patents for private land claims are not valid unless countersigned and sealed by the recorder of the General Land-Office. 2 Stat. 716, sect. 8; 5 id. 111, sect. 6; id. 416, sects. 1, 2; United States v. The Commissioner, 5 Wall. 563; The Secretary v. McGarrahan, 9 id. 248; 3 Op. Att'y-Gen. 140, 167, 630.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.