record of the paper is evidence of the fact that the recorder recognized its completeness and is equivalent to its countersignature. The law is not satisfied with the simple recognition of the validity of a patent by an officer of the government. To he valid, a patent must be actually executed. Before it can operate as a grant the last formalities of the law prescribed for its execution must be complied with. No provision is made for an equivalent of these formalities. Even an actual delivery of the patent by the recorder in person would not supply the place of his countersignature, any more than the delivery of a paper by a private person without being signed would make it his deed. But the record of a patent would not be necessarily as much a recognition of its validity as a personal delivery by the recorder, because he only attends to the recording, and is not required to do it in person. The only way in which he can lawfully. and effectually recognize the validity of a patent is by personally countersigning it.

Again, it is said that the act of March 3, 1843, (5 Stat. 627) remedies the defect, because it provides "that literal exemplifications of any such records which may have been or may be granted in virtue of the provisions of the seventh section of the act, * * * entitled 'An Act to Re-organize the General Land Office,' shall be deemed and held to be of the same validity in all proceedings, whether at law or in equity, wherein such exemplifications are adduced in evidence, as if the names of the officers signing and countersigning the same had been fully inserted in such record." This act does not, however, dispense with the signing and countersigning. The record to prove a valid patent must still show that these provisions of the law were complied with. The names need not be fully inserted in the record, but it must appear in some form that the names were actually signed to the patent when it issued. If they are partially inserted in the record, it will be presumed that they fully appeared in the patent; but no such presumption will be raised if no signature is shown by the record. Here no signature does appear, and consequently none will be presumed.

The failure to record the patent does not defeat the grant. It only takes from the arty one of the means of making his proof. If he can produce the patent itself, and that is exe

cuted with all the formalities required by the law, he can still maintain his rights under it. He is not, therefore, necessarily deprived of his title because of a defective record. He is in no worse condition with the signatures omitted than he would have been if the description of his land had been erroneously copied, or other mistakes had been made which rendered the record useless for the purpose of evidence. A perfect record of a perfect patent proves the grant; but a perfect record of an imperfect patent, or an imperfect record of a perfect patent has no such effect. In such a case, if a perfect patent has in fact issued, it must be proved in some other way than by the record. It is undoubtedly true, that, when a right to a patent is complete, and the last formalities of the law in respect to its execution and issue have been complied with by the officers of the government charged with that duty, the record will be treated as presumptive evidence of its delivery to and acceptance, by the grantee. But until the patent is complete, it can not properly be recorded, and consequently an incomplete record raises no such presumption.

Again, it is said that the record of an instrument which the law requires to be recorded is prima facie evidence of the validity of the instrument. That is undoubtedly true, if the instrument recorded is apparently valid. The presum tion arising from the record is, that whatever appears to have been done, actually was done. If the record shows a perfect instrument, the presumption is in favor of its validity; but if it shows an imperfect instrument, a corresponding presumption follows. Here the instrument recorded appears to have been incomplete, and consequently it must be presumed to be invalid. This presumption will continue until overcome by proof that the instrument as executed and delivered was valid.

We are of the opinion that because this record does not show a patent countersigned by the recorder, it is not suffi cient to prove title in the party under whom McGarrahan claims. This makes it unnecessary to consider any of the other questions which have been argued; and the judgment

is

Affirmed.

Mr. Justice FIELD and Mr. Justice HARLAN took no part in the decision of this cause.

ST. LOUIS SMELTING AND REFINING Co. v. KEMP.

(104 United States, 636. Supreme Court, 1881.)

Patent not to be attacked in court of law. A patent from the unit States for land, is conclusive in a court of law as to all matters properly determinable by the land department, when its action is within the scope of its authority, that is, when it has jurisdiction under the law to convey the land. If, however, it has no such jurisdiction, the patent may be collaterally impeached, and its operation as a conveyance defeated upon that ground.

1 Remedy in equity for wrongful issuance. If in issuing a patent the officers of the land department take mistaken views of the law, or draw erroneous conclusions from the evidence, or act from imperfect views of their duty, or even from corrupt motives, a court of law can afford no remedy to a party alleging that he is thereby aggrieved. He must resort to a court of equity for relief, and even then must possess such equities as will control the legal title in the patentee's hands.

A stranger to the title can not complain of the action of the government with respect to such title.

Placer patent for over 160 acres upheld-Impeachment by showing ir

regularities in land office not allowed. The St. L. Co. brought ejectment against K., and claimed title by virtue of a placer patent from the United States of date March 29, 1879, and embracing 164.60 acres. The defendant ad judgment and upon review it was held, that there was error: 1. In admitting the record of the proceedings of the land office to impeach the validity of the patent; 2. In instructing the jury that a patent for a placer claim, since the act of 1870, could not embrace in any case more than 160 acres; 3. In instructing the jury that the owner, by purchase of several claims, must take separate proceeding s upon each one in order to obtain a valid patent, and that it was not lawful for him to prosecute a single application upon a consolidation of several claims into one, or for the land officers to allow such application and to issue a patent thereon.

2 Placer may exceed 160 acres and cover several locations. A patent issued subsequently to the passage of said act of 1870, may embrace a placer mining claim of more than 160 acres, and including as many adjoining locations as the patentee had purchased. The proceedings to obtain a patent, therefore, are the same as when the claim covers but one location.

"Location" and "Mining Claim" distinguished. A mining claim may embrace one or more locations.

Improvements on group of locations constituting one claim. Improvements on one of a group of locations, constituting a consolidated claim,

1 Kahn v. Old Telegraph Co., 11 M. R. 646.

2 Re-affirmed: Tucker v. Masser, 113 U. S. 203.

VOL. XI-43

or work done at a distance from the claim, as in the case of operations to lead water to, or carry tailings from the claim, apply as labor under the mining acts.

Error to the Circuit Court of the United States for the District of Colorado.

This was an action at law brought in one of the courts of Colorado by the St. Louis Smelting and Refining Company, a corporation created under the laws of Missouri, for the possession of a parcel of land in the city of Leadville. On application of the defendants it was removed to the Circuit Court of the United States. The complaint is in the usual form of action for the possession of real property under the practice obtaining in Colorado. It alleges that the plaintiff was duly incorporated with power to purchase and hold real estate; that it was the owner in fee and entitled to the possession of the premises mentioned, describing them, and that the defendants wrongfully withheld them, to the damage of the plaintiff of $5,000.

The defendants filed an answer admitting that the plaintiff was incorporated as averred, but denying that it was the owner in fee of the demanded premises, or that they were wrongfully detained from its possession, or that it had sustained any damage. The answer also alleged that the plaintiff, as a foreign corporation, was incompetent to acquire title to any real estate in Colorado, except such as might be neces sary for the transaction of its business as a smelting and refining company, and that the premises in controversy were not necessary for that purpose, but were acquired for specula

tion.

The plaintiff filed a replication denying its incompetency to hold real estate as alleged, and averring that it was authorized, under the laws of Missouri, to buy, sell and deal in real estate for any purpose whatever; that the property in controversy was acquired as a site for smelting and reduction works, and that such works were afterward erected upon it and used for reducing and smelting silver ores.

The case was tried in November, 1879. To maintain the issues on its part the plaintiff offered in evidence a patent of the United States to Thomas Starr, dated March 29, 1879, for

1

mining ground, which, it was admitted, included the premises in controversy. The patent recited that, pursuant to provisions of chapter six of title thirty-two of the Revised Statutes, there had been deposited in the general land office the plat and field notes of the placer mining claim of Thomas Starr, the patentee, accompanied by a certificate of the register of the land office at Fairplay, Colorado, within which district the premises are situated; that Starr had, on the 6th of March, 1879, entered an application for the said c'aim, which contained one hundred and sixty four acres of land and sixty one hundredths of an acre, more or less. The patent also specified the boundaries of the tract according to the field notes, and contained the recitals and words of grant and transfer usually inserted in patents for placer mining land. To the introduction of this patent the defendants objected, but the record does not state on what grounds the objection was founded, and it was overruled. The patent was, accordingly, admitted in evidence. The plaintiff traced title to the land by sundry mesne conveyances from the patentee. It also introduced the certificate of the register of the same land office, showing that the application of Starr at that office, to enter and pay for his claim, was made on the 18th of March, 1878; also a copy of the articles of incorporation of the plaintiff, and of the laws of Missouri under which the incorporation was had, and proved that, in 1877, prior to the existence of the town of Leadville, the company purchased of the claimant the tract embraced in the patent, for the purpose of erecting reduction works thereon, and that at the time of the purchase and when it commenced the construction of the works the land was unoccupied by other parties.

The plaintiff having rested its case, the defendants offered in evidence a certified copy of the record of proceedings in the general land office at Washington, upon which Starr obtained his patent, to the introduction of which the plaint ff objected, on the ground that it could only show, or tend to show, the regularity or irregularity of the proceedings before the executive department in obtaining the patent, or the validity or invalidity of the possessory title or pre-emption right, upon which the patent was founded, and that no evidence could be introduced to impeach the patent or attack it collat