SHERMAN V. BUICK, 93 U. S. 209 (1876)

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U.S. Supreme Court

Sherman v. Buick, 93 U.S. 209 (1876)

Sherman v. Buick

93 U.S. 209


1. Testimony, whether parol or documentary, which shows a want of power in officers who issue a patent, is admissible in an action at law to defeat a title set up under it. In such case, the patent is not merely voidable, but absolutely void, and the party is not obliged to resort to a court of equity to have it so declared.

2. In construing the Act of March 3, 1803, 10 Stat. 246, the court held: 1. school sections sixteen and thirty-six, granted to the State of California by sec. 6 of the act, are also excepted from the operation of the preemption law to which, by the same section, the public lands generally are subjected; 2. the rule governing the right of preemption on school sections is provided by the seventh section of the act, and it protects a settlement if the surveys, when made, ascertain its location to be on a school section; 3. in such case, the only right conferred on the state is to select other land in lieu of that go occupied; 4. the proviso to the sixth section forbidding preemption on unsurveyed lands after one year from the passage of the act is limited to the lands not excepted out of that section, and has no application to the school sections so excepted.

The plaintiff in error brought suit in the proper court of the State of California to recover possession of a part of section 36, township 5 south, range 1 east, Mount Diablo meridian, and asserted title thereto under a patent from the United States bearing date May 15, 1869. The defendant claimed under a patent from the State of California of the date of Jan. 1, 1869. The title of the state is supposed to rest on the Act of Congress of March 3, 1853, 10 Stat. 246, granting to her for school purposes, with certain limitations, every sixteenth and thirty-sixth section within her boundaries according to the surveys to be thereafter made of the public lands.

The plaintiff, in aid of his patent and to defeat the title of the state under the act of 1853, offered to prove that as early as Dec. 20, 1862, he had settled upon the land and had ever since resided on it; that it was not surveyed until Aug. 11, 1866; that he had filed and proved his preemption claim to it Nov. 6, 1866, and paid for it, and received a patent certificate on which his patent was duly issued.

The court excluded this evidence and gave judgment for the defendant, which was affirmed by the supreme court, whereupon the plaintiff sued out this writ of error. The sections of

Page 93 U. S. 210

the act which bear upon the case are set forth in the opinion of the Court.

Page 93 U. S. 211

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