Page:Federal Reporter, 1st Series, Volume 5.djvu/344

 332 rBDERAIi BEPOETEE. �have «ffect, upon the same land, as that two 1)03168 stould occqpy the same space, and therefore the grant that is prior in point of time and has not reverted to the grantor excludes or repels the other. �In French v. Fyan, supra, the supreme court held that a patent issued under the swamp-land act of 1850 cannot be impeached in an action at law by showing that the land which it conveys was not in fact swamp and overflowed land. Upon the question of admitting oral evidence to contradict the pat- ent in this respect, Mr. Justice Miller, in delivering the opin- ion of the court, after citing the case of Johnson v. Towsley, 13 Wall. 72, to the effect that the action of theJand-office in issuing a patent is conclusive upon the legal title, subject, however, to the power of a court of equity, in certain cases, to correct or set it aside for fraud or mistake, says : " We see nothing in the case before us to take it out of the operation of .that rule; and we are of: the opinion that, in this action at lav, it would be a departure from sound principle, and coijtrary to well-considered judgments in this court, and in others of high authority, to permit the validity of the patent to.the state to be subjected to the test of the verdict of a jury onisuçh oral testimony as might be brought before it. It ■would be substitating the jury, or the court sitting as a jury, for the tribunal which congress ;had provided to determine the question, and would be making a patent of the United States a cheap and unstable reliance as a title for lands which it purported to convey." �And in Sharp v. Stephens, August 25, 1879, this court held that the defendant could not at law prove, in opposition to a patent under the donation act, that the person named therein as the wife of the settler was not his wife, and therefore not entitled to her half of the donation. Nor was it in allowing and issuing this patent alone that the secretary passed upon the question to what grant the premises belonged. In ap- proving the lists selected under the wagon-road grant, in 1871, he did the same thing; for as yet a patent was not authorized,.and the grant was complete upon the approvalby ����