Page:Federal Reporter, 1st Series, Volume 8.djvu/423

 CHAMBERLAIN V. UaBSHALIj. 409 �danger of injury to the plaintiff, in apprehended loss of evidence or otherwise, from any unreasonable or unconscientious delay on the part of the defendant. The questions to be decided are questions of law, and every consideration nrged, or that can be urged, in thisfonn of proceedings, will be equally available in the defence of the pend- ing action at law. �If by reason of the acts of congress which have been cited, and the facts admitted in respect to the entry and survey of Eobert Marshall, the patent issued to bis heir at law in 1878 is null and void, as claimed, then that patent, on which alone the def endant's title at law rests, will be of no avail as a ground for the recovery of the possession of the land in the action brought for that purpose. In Simmons v. Wagner, 101 U. S. 260, the supreme court of the United States decided that a patent issued without authority of law was void, and could not be used as evidence in ejectment, even against one in possession withont title. The chief justice said in that case: �" The sale to Mecke and patent thereon to Simmons, more than 30 years af ter- wards, were null and void, and conveyed no title as against Russell and his asaigns. It is of no œnsequence whether the assignees of Russell could get a patent in their own names or not. After the certificate issued the lands were no longer a part of the public domain, and the authority of the officersof the government to grant them, otherwise than to him or some persom holding his rights, was gone. The question is not whether Wcigner, if he was out of pos- session, could recover in toectment tepon the certificate, iut whether Simmons can recover as against him. He is in a situation to avail himself of the weaJc- ness of the title of his adversary, andneed not assert his own." �In PoWs Lessee v. Wendell, 9 Cranch, 99, Chief Justice Marshall said : �"But there are cases in which a grant is absolutely void: as when the stato has a title to the things granted ; or where the offlcers had no authority to issue the grant. In such cases the validity of the grant is necessarily examinable at law," �This doctrine was reaffirmed in the case between the same parties in 5 Wheat. 303, �The decision in Hoofnagle v. Anderson, 7 Wheat. 212, is not ineon- sistent with this doctrine ; for in that case the patent was not void for want of power to issue it, but voidable only for irregularities in the exercise of the power. �In Ladiga v. Roland, 2 How. 590, the court said : �" The president could give no such power, or authorize the offlcers of the land-offlce to issue patents on such sales ; they are as void as the sales, by rea- son of their collision with the treaty." • ��� �