The lands owned by the United States are surveyed and sold according to the following plan, and states which own public lands follow the plan of the federal government very closely:13 The lands are divided, by lines running to the cardinal points of the compass, into ranges, townships, and sections; the ranges being numbered east or west from a principal meridian. Each township contains 23,040 acres, being 6 miles square. The sections contain 640 acres, and are divided in halves, quarters, eighths, etc.14 By this system any portion of land may be located with certainty and accuracy by means of section, township, etc. Descriptions of this kind are sufficient in deeds.15 The public domain can be sold only by authority of congress. This authority is exercised by either general or special acts.16 The first sales of the public domain were made in large tracts. But since this congressional survey was adopted the public land has been sold through local land offices estab lished in the Western states; the land is first put up at auction to be sold to the highest bidder at not less than a minimum price, and, if not disposed of at that price, it is left to be sold by the land office.17
Certificate and Patent.
One who wishes to acquire public land must make an entry on the land selected, and, after making the required payment, or becoming entitled to the land under the provisions of the federal homestead law,18 a certificate of entry is issued by the register of the land office, which entitles the claimant to a patent. The patent is the formal conveyance. It is signed by the president of the United States, or by some authorized person for him, and sealed with the seal of the United States. The cases as to the effect ot a certificate of entry and a patent are somewhat confused, and there is in particular some conflict between the decisions of the federal and the state courts. A patent is the highest evidence of title.19 Between two patents, the first issued is superior, and the second conveys nothing.20 A patent can be assailed only for fraud or mistake, and can be avoided only by the government, or by suit in its name.21 A patent cannot be attacked in a collateral proceeding.22 Until the patent is issued, the legal title remains in the United States.23 The equitable title, however, is in the holder of the certificate of entry.24 This equitable title he may sell or devise, and it descends to his heirs.25 His heir, devisee, or assignee may claim the patent by virtue of the certificate.26 If the claimant dies before the patent is issued, it is issued to his heir or devisee, as the case may be.27 If it is issued in the name of the holder of the certificate after his death, it takes effect for the benefit of the heirs.28
10 Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 589; Hyman v. Read, 13 Cal. 444.
11 Martin v. Waddell's Lessee, 16 Pet. 367, 411; Com. v. Roxbury, 9 Gray (Mass.) 492; Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 589.
12 Kennedy v. Mccartney's Heirs, 4 Port. (Ala.) 141.
13 See 1 Dembitz, Land Tit. 18, 513. 14 Rev. St U. S. 1878, § 2395 et seq. 15 Bowen v. Prout, 52 111. 354.
16 Irvine v. Marshall, 20 How. 558; Bagnell v. Broderlck, 13 Pet 436. i7 Rev. St U. S. 1878, § 2357.
18 See ante, p. 126.
19 Irvine v. Tarbat, 105 Cal. 237, 38 Pac. 896; Bagnell v. Broderick, 13 Pet. 436. And see Maxey v. O'connor, 23 Tex. 238.
20 Stockton v. Williams, 1 Doug. (Mich.) 546, 560.
21 Carter v. Thompson, 65 Fed. 329; San Pedro & Canon del Agua Co. v. U. S., 146 U. S. 120, 13 Sup. Ct. 94; U. S. v. Minor, 114 U. S. 233, 5 Sup. Ct. 836; U. S. v. Iron Silver Min. Co., 128 U. S. 673, 9 Sup. Ct. 195. But see Tameling v. Emmigration Co., 93 U. S. 644.
22 Knight v. Land Ass'n, 142 U. S. 161, 12 Sup. Ct 258. But see Minter v. Crommelin, 18 How. 87.
23 U. S. v. Steenerson, 1 C. C. A. 552, 50 Fed. 504.
24 American Mortg. Co. v. Hopper, 56 Fed. 67.
25 Brill v. Stiles, 35 111. 305.
26 Brush v. Ware, 15 Pet. 93; Forsythe v. Ballance, 6 Mclean, 562, Fed. Cas. No. 4,951.
27 Galt v. Galloway, 4 Pet. 332; Reeder v. Barr, 4 Ohio, 458; Shanks v. Lucas, 4 Blackf. (Ind.) 476.
28 Schedda v. Sawyer, 4 Mclean, 181, Fed. Cas. No. 12,443; Stubblefield v.
404: title. (Ch. 16
Under the pre-emption laws, which are enacted for the purpose of encouraging actual settlement of the public lands, a right is acquired by entry and settlement to claim a certificate of entry at the minimum price fixed for the land in preference to any other person. The right can be claimed only for 160 acres,29 and this must not be lands which have been reserved, or which are within any city or town. Nor can lands on which there are known salt or other mines or lands which are occupied for the purpose of trade or manufacture be pre-empted.30 One claiming the pre-emption right must not own more than 320 acres in any state or territory, and must not have abandoned, in order to make the pre-emption, a home within the state or territory wherein the pre-empted land lies.31 The right of pre-emption is assignable only against the assignor,32 and not against the government.33 Nor is it subject to levy for the debts of the pre-emptor.34 The pre-emption laws were repealed by the act of March 3, 1891,35 and therefore land can no longer be acquired in this way.36
Boggs, 2 Ohio St. 216; Phillips v. Sherman, 36 Ala. 189. But see Gait v. Galloway, 4 Pet. 332; Galloway v. Findley, 12 Pet. 264; Blankenpickler v. Anderson's Heirs, 16 Grat. (Va.) 59.
29 Rev. St. U. S. § 2259.
30 Rev. St. U. S. § 2258.
31 Rev. St U. S. § 2260. And see Bogan v. Mortgage Co., 11 O. C. A. 128, 63 Fed. 192.
32 Delaunay v. Burnett, 9 111. 454; Camp v. Smith, 2 Minn. 155 (Gil. 131). The pre-emptor's rights descend to his heirs. Bernler v. Bernler, 147 U. S. 243, 13 Sup. Ct. 244.
33 Rev. St. U. S. § 2263.
34 Rogers v. Rawlings, 8 Port (Ala.) 320.
35 26 Stat 1097.
36 See 1 Dembltz, Land Tit 524.