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Mr. FRED. BETTS, for appellant.

Mr. JAMES H. BROWN, for appellee.

MR. JUSTICE HELM delivered the opinion of the court.

The patent of 1868 through which Henry C. Brown originally claimed title was invalid. It was based upon the Chippewa half-breed certificate of scrip issued to Mary Dauphinias. This certificate was given in pursuance of the seventh clause, second article, of the treaty of 1854 with the Chippewa Indians. But this treaty is to be construed in connection with the act of congress of 1854 by which it was authorized; and that act limited the selection of lands by the beneficiaries named to the territory ceded by the Indians under the treaty. But the territory thus ceded was entirely within the states of Minnesota and Wisconsin. There was, therefore, in 1868, when the Dauphinias certificate was located and the Dauphinias patent issued, no authority of law for locating Chippewa half-breed scrip upon land in Colorado, or for patenting such locations. Parker v. Duff, 47 Cal. 554.

Hence it was, as we shall presently see, that after the decision of Parker v. Duff, supra, holding such patents void, Brown undertook to avail himself of the benefit of the act of congress of 1872. He surrendered the original patent, executed a deed of relinquishment, paid the extra sum demanded of $2.50 per acre, and complied with all other requirements of the land department; in 1876 a new patent issued to him for the premises originally located, being the same premises now in controversy. Upon the validity of the latter patent rests the decision of the case.

Appellee's counsel vigorously contends that appellant being a stranger to the patent and not having in any way connected himself with the title from the government, is a mere trespasser and not in position to invoke the rule permitting. an outstanding title to be shown by defendants in the action

of ejectment. It is asserted that appellee's prior possession under the patent of 1876, even if it were void, would prevail in this action as against appellant, whose entry and subsequent acts amount to nothing more than a naked trespass.

Again, it is strenuously insisted on behalf of appellee, that even if appellant occupies such a legal status as would enable him to attack the validity of the patent of 1876, that document is not void on its face and therefore must prevail in this action. To show the validity of the patent, appellant's counsel relies upon the rule that an instrument referred to in a deed is to be considered as incorporated therein. Hence he argues, that since the patent mentions a certificate made by the register showing compliance by Brown with the land office requirements, and since this certificate also refers to commissioner's letter "C" of July 19, 1876, which letter in turn refers to commissioner's letter of May 11, 1875, these documents are in contemplation of law incorporated into the patent. And by means of this incorporation, it is claimed the invalidity of the patent is made to appear upon its face. The correctness of this broad application of the doctrine of reference is forcibly combatted. .

But under the view we shall adopt concerning the scope and effect of the act of congress of June 8, 1872, it is unnecessary to discuss or determine either of the foregoing questions. For the purposes of the present decision, we shall assume (without indicating any conclusion thereon) that appellant could defeat the action by showing an outstanding title in the United States, and that the instruments above referred to are to be treated as a part of the patent, without limitation to the particular purpose for which it is contended the reference was made.

The validity of the patent of 1876 is challenged on the ground that its issuance was not authorized by law. We are told that neither the act of April 24, 1820, which was the general statute in force providing for the patenting of government lands, nor the remedial act of 1872 permitted the issue of this patent. This contention is predictated upon the

following grounds: First, that the offering of land at public auction is a condition precedent to its entry or patent under the act of 1820. And that in view of the admitted averment of the answer, coupled with the rejection of evidence, we are bound to regard the land in controversy as never having been "offered." Second, that the act of 1872 was only intended to permit the purchase of land in the ceded territory. And the ceded territory being entirely within the states of Minnesota and Wisconsin, land in Colorado is not within the purview of the act. Third, that the act of 1872 applied only to unpatented claims and was not intended to give relief where, as in the case at bar, patents had at the time of its adoption actually issued and were outstanding. Fourth, that only "innocent parties in good faith" holding Chippewa "claims" or holding locations thereunder were entitled to the benefit of this statute. And that since Brown, the patentee, must be held to have known the limitation in the act of 1854 confining the location of Chippewa half-breed certificates to the ceded territory, he cannot be regarded in law as an "innocent party" acting "in good faith."

True it is that "unoffered " lands are not subject to private entry under the act of 1820. U. S. Rev. Stats., sec. 2357. And it is admitted that the patent to Brown recites that he had "made full payment" for the land in controversy according to the provisions of that statute. This admission

may be literally true; Brown's deposit may have complied with the formal requirements of the act. But the patent recital does not amount to a declaration that the patent issued under this statute alone. On the contrary, the recitation of the patent, that the government "in consideration of the premises and in conformity with the several acts of congress in such case made and provided" granted, etc., shows that it also issued under such other acts, if any, as were applicable. If, therefore, the act of 1872 was pertinent, it may be that this provision of the statute of 1820 was thereby waived as to tracts like the one in dispute.

Counsel for appellant concedes in argument that Brown

attempted to invoke the statute of 1872, and that the various land officers were also endeavoring to act thereunder in receiving his money and in issuing to him the patent of 1876. In this concession counsel is undoubtedly correct. We therefore proceed to examine that statute for the purpose of determining whether it does or does not authorize the action of the land department in the premises.

It is entitled "An act to perfect certain land-titles therein described,"and reads:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Interior be, and he is hereby, authorized to permit the purchase, with cash or military bounty-land warrants, of such lands as may have been located with claims arising under the seventh clause of the second article of the treaty of September thirtieth, eighteen hundred and fiftyfour, at such price per acre as the secretary of the interior 'shall deem equitable and proper, but not at a less price than one dollar and twenty-five cents per acre, and that owners and holders of such claims in good faith be also permitted to complete their entries, and to perfect their titles under such claims upon compliance with the terms above mentioned; Provided, That it shall be shown to the satisfaction. of the Secretary of the Interior that said claims are held by innocent parties in good faith, and that the locations made under such claims have been made in good faith and by innocent holders of the same."

That this statute relates exclusively to lands taken or to be taken with Chippewa half-breed scrip issued in pursuance of the Chippewa treaty of 1854 cannot be doubted. It is not, strictly speaking, a confirmation of grants previously made. It permits parties in good faith holding these certifi cates to perfect entries therewith. But in so doing such parties are required to make additional payments in accordance with the act and to comply also with its remaining provisions. As to all other persons included, the substantial effect of the statute is to simply give them a preference by which they

are enabled to procure title thereunder for lands previously selected and, to use the statutory phrase, "located with " this scrip. The act is clearly remedial and should receive a liberal interpretation so as to advance the remedy. In endeavoring to discover its specific purpose we should consider, among other things, the particular mischief which led to its passage, and the character of the information possessed by its framers in relation thereto.

Frauds and evasions of law existed in connection with the issue and sale of Chippewa half-breed certificates. So serious had these abuses become that in December, 1871, congress by resolution called upon the secretary of the interior for information touching the subject. Promptly upon receipt of this information, the statute of 1872 was adopted. The fourth paragraph of the congressional resolution asked for "a copy of said scrip, the manner of locating the same, whether by the parties to whom it was issued or by others, whether located upon lands ceded by said tribe, and all decisions of the department of the interior in relation to the issuance and location of said scrip." Among other facts of which congress thus secured knowledge, are the following: That many certificates of this scrip had issued to fictitious persons, and that other extensive and systematic frauds existed in connection therewith; that the secretary of the interior had declared a large portion of the scrip void, and had ordered all unpatented entries to be canceled. But congress was also informed that the land department by means of circulars and letters had for a long period held that the Chippewa certificates issued in pursuance of the treaty were locatable upon any unoccupied public lands subject to pre-emption whether outside or inside the ceded territory; that there was nothing in the certificates issued before July 6, 1868, to indicate that the purchasing power of this scrip was limited to the ceded territory; that prior to February 26, 1872, six hundred and thirty patents had been issued for land taken with Chippewa half-breed certificates; that one hundred and fifty-six of said six hundred and thirty patents

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