is res judicata. On the latter point, I may explain that in the case of Coburn v. Wells and Higgins, decided by this Department October 18, 1880, the question of the priority of right to the land between Wells and Higgins came directly in issue, and was determined in favor of Wells. Higgins alleges that said decision was founded on error of fact and law; but I cannot undertake to make even a preliminary inquiry into the question. If said charge had been duly brought before my predecessor, I have no doubt that he would have entertained it and corrected any error that was shown to exist. But Higgins accepted the decision without protest, and cannot be heard now to object to it. The application of the doctrine of res judicata to this class of cases has been sanctioned by long usage in the Land Department, and I need not now discuss its legality or necessity. I am constrained to apply it in this case to the question of Wells's superior right to the land. Your decision is affirmed.

PRE-EMPTION—ALIENATION AFTER ENTRY.

C. P. COGSWell.

The right to assign and convey after proof, payment, and final certificate is, so far as relates to a bona-fide pre-emption, without any restriction whatever; and whether such assignment was or was not made to a bona-fide purchaser is immaterial as affecting the right of the entryman to assign and convey.

Purchasers from persons who hold final certificates purchase with notice that the Land Department is but an administrator of the law, and that it has no authority to issue patents to pre-emptors or entrymen who have not complied with the law or who have procured their certificates by fraud.

Secretary Teller to Commissioner McFarland, July 21, 1884.

I have considered the petition of C. P. Cogswell for a writ or order of certiorari under Rules of Practice 83 and 84.

The petition sets forth that certain parties made pre-emption cash entries, viz, Nos. 2927, 2928, 2999, 3001, 3002, 3003, 3007, 3041, and 3114, for public lands in Duluth district, Minnesota; that final proof of the pre-emptors was made in the manner required by law, and final entry papers were executed and issued by the local officers in each of the cases, and thereupon the entrymen, by deeds of warranty, conveyed all of said lands to the C. N. Nelson Lumber Company; that, relying upon the conveyances to said company, the final receipts issued to the entrymen, and the laws of Minnesota declaring such receipts to be prima-facie evidence of title in the courts, the petitioner, in good faith and for full value, became the purchaser of all of said lands, and holds them as security for certain bonds of said Lumber Company now in the hands of innocent purchasers of the same, who rely upon said lands as security for said bonds; that, subsequently to said final proofs, entries, and conveyances, your office, acting upon the report of the special agent, or

dered a hearing at the local office to examine certain charges alleged against said entries; that petitioner was not a party to the hearing and had no notice thereof; and that as a result of such hearing you canceled said entries August 31, 1883; that, upon learning such action, petitioner filed in your office a petition to intervene and become a party to the record, and praying that his rights as assignee of said entrymen be fully protected; that, May 13, 1884, you declined to recognize his rights to any of said lands, and declared your action of August 31, 1883, final; that the testimony upon which you acted in canceling said entries consisted of general statements of the special agent and his assistants as to the nature of the lands lying within a portion of the Duluth land district, and that if your said action remains in force the persons holding the bonds supposed to be secured by said lands will be subjected to great loss and damage and to irreparable injury.

The principal question presented by the petition, and in the argument of counsel for the petitioner, is as to the legal effect of that part of Section 2262, Revised Statutes, which declares in case of forfeiture that "any grant or conveyance" made by the pre-emptor, "except in the hands of bona fide purchasers, for valuable consideration, shall be null and void."

It is urged on behalf of the petitioner that the converse of this declaration of the statute necessarily follows, i. e., that where a party has in good faith, for a valuable consideration, purchased from a pre-emp tor, he shall be protected, and the land so purchased shall be patented to him.

Counsel refer to the case of Charlemagne Tower, (2 L. D., 779, 780), and remark that, if that case is to stand, the result follows that a party who purchases from a pre-emptor before entry is protected under the section aforesaid, while he who purchases after proof made and final certificate issued is not protected.

It will be seen upon an examination of the facts in the original case that proof and payment had been made and final certificate issued. Mr. Tower claimed "that he was a bona-fide purchaser of said lands after entry for value, and without notice of any defect in the title of the holders of the certificates." It was therefore unnecessary to consider the effect of a grant or conveyance before entry, and, so far as the discussion in the decision involved that question, it should not be regarded as authority. Such decision, in discussing the question of the effect of a conveyance before entry, has evidently led to a misconstruction of my views relating to the right to assign and convey after entry.

I am of the opinion that the right to assign and convey after proof, payment, and final certificate, is, so far as relates to a bona fide pre-emp tion, without any restriction whatever; and whether such assignment was or was not made to a bona fide purchaser is immaterial as affecting the right of the entry man to assign and convey. And since the question is presented by the case now under consideration, I shall proceed,

as briefly as possible, to consider the status of the title to pre-emption lands after proof, payment, and final certificate.

By the pre-emption act of May 29, 1830 (4 Stat., 420), Congress prohibited assignments in the following terms: "And that all assignments and transfers of the right of pre-emption given by this act prior to the issuance of patents shall be null and void."

This provision was carried into Section 12 of the pre-emption act of September 4, 1841 (5 Stat., 453), and is now incorporated into Section 2263, Revised Statutes.

The act of January 23, 1832, provided that all persons who had purchased lands under the act of May 29, 1830, aforesaid, might assign and transfer their certificates of purchase notwithstanding anything to the contrary in said last-mentioned act.

In Myers v. Croft (13 Wall., 291) the disability mentioned in Section 2263 was construed to extend "only to the assignment of the pre-emption right," and it was held that after the pre-emptor had "proved up his right and paid the government for the land, restriction upon the power of alienation after this would injure the pre-emptor and could serve no important purpose of public policy."

In Quinby v. Conlan (104 U. S., 420) it was held that "the act of Congress forbids the sale of pre-emptive rights to the public lands acquired by settlement and improvement. The general pre-emption law declares that all transfers and assignments of rights thus obtained prior to the issuing of patent shall be null and void. This court held (Myers v. Croft), looking at the purpose of prohibition, that it did not forbid the sale of the land after the entry was effected; that is, after the right to a patent had become vested; but did apply to all prior transfers." "When the land has been purchased and paid for," and a final certifi cate issued, "it is no longer the property of the United States, but of the purchaser." The final certificate which the purchaser holds can "no more be canceled by the United States than a patent." Taxes may be assessed upon lands held under such certificates for State, county, and township purposes, where the act of Congress admitting States into the Union expressly provides that the State shall impose no tax or assessment of any description "upon any of the lands of the United States within its limits." The land so held is real estate; it descends to the heirs, and does not go to the executor or administrator; and "in every legal and equitable aspect it is considered as belonging to the realty."

When the certificate is issued and delivered, the contract of purchase is complete, and the "government agrees to make a proper conveyance as soon as it can, and in the mean time holds the naked legal fee in trust for the purchaser, who has the equitable title." When the patent does issue it "relates back to the inception of the right of the patentee so far as it may be necessary to cut off intervening claimants." When the purchase money has paid and the certificate issued a vested right obtains, and "the government can no more dispose of the land to another

person than if the patent had issued." The right to a patent once vested is "equivalent to a patent issued," and "the final certificate obtained on the payment of the money is as binding on the government as a patent." From the time of payment and final certificate "the United States has no real interest in the land. It only holds the dry legal title in trust for the purchaser, pending the usual necessary delay in issuing patents." "The entry and patent are regarded as one title. The title dates from the date of the entry and payment, and not from the date of the patent." These certificates are received in the courts as evidence of title not only when offered by the persons to whom they are issued, but by persons to whom the lands have been conveyed. See Carroll v. Safford (3 How., 441), Witherspoon v. Duncan (4 Wall., 210), Hughes v. United States (Ib., 232), Stark v. Starrs (6 Wall., 402), The Yosemite Valley case (15 Wall., 77), Frisbie v. Whitney (9 Wall., 187), Astron v. Hammond (3 McLean, 109), Mining and Milling Co. v. Spargo (16 Fed. Rep., 348), McConnell v. Wilcox (1 Scam., 344), Wilcox v. Kinzie (3 Scam., 223).

It will be seen from these authorities that the right to transfer the title of which the final certificate is the evidence, and which is equivalent to a patent and can "no more be canceled by the United States than a patent," does not stand at all upon the provisions of Section 2262. It stands (in the absence of statutory prohibition) upon elementary principles and the right of a purchaser to convey property which he has bought and paid for in full, in relation to which he has nothing further to do, of which he is the equitable owner, and lacks only the transfer to him of the dry legal title, which the vendor holds in trust for him. It is a fact generally known that in all the new States such title, for the purposes of private and judicial sale, taxation, inheritance of real estate, and all other kindred objects, is treated by the courts, the local legislatures, and individuals in the same manner as if a patent had issued.

While all this is true, it does not follow that the United States is absolutely bound to convey the title after payment and final certificate either to the pre-emptor or to his vendee, whether such vendee is or is not a purchaser in good faith for a valuable consideration; because these decisions assume that there has been a compliance with all the conditions requisite to a complete appropriation of the land, and that the payment has been made and the certificate issued in conformity to law. For instance, in the case of Carroll v. Safford (supra)-which perhaps gives as broad and firm a character to the title held under the certificate as any case which can be found in the books-it is observed that "if the land had been previously sold by the United States, or reserved from sale, the certificate or patent might be recalled by the United States as having been issued through mistake. In this respect there is no difference between the certificate holder and the patentee."

In Myers v. Croft the court said that the legislation was directed. against the transfer of the right of pre-emption, "leaving the pre-emptor

free to sell his land after the entry, if at that time he was in good faith the owner of the land and had done nothing inconsistent with the provision of the law on the subject." And again: "The object of Congress was ob tained when the pre-emptor went with clean hands to the land office and proved up his rights and paid the government for his land.”

Good faith and cleanly acts are here imputed to the pre-emptor (the vendor), and not to the purchaser.

Upon the question of your power to cancel an entry after a final certificate has issued I refer to the authorities following:

In the case of Moore v. Robbins (96 U. S., 530), as to one forty-acre tract there, under consideration, there had been two sales and two final certificates issued; one to the pre-emptor and one to a purchaser at a public sale. The court held that the Secretary of the Interior (the contest having reached him on appeal) "had the authority undoubtedly to decide finally for the Land Department who was entitled to the patent; and though no patent has been issued, that decision remains the authoritative judgment of the Department as to who has equitable title to the land." As to the other forty, patent having been issued, the decision held that all jurisdiction had passed to the courts.

In the case of Harkness v. Underhill (1 Black, 316) an entry had been made and a final certificate issued and recorded in the county recorder's office, when the question was raised whether the entry, having been allowed by the register and receiver, could be set aside by the Commissioner. The court held that the question had several times been raised and decided in the affirmative by that court, and cited Garland v. Wynn (20 How., 6) and Lytle v. State of Arkansas (9 How., 314.) In the case of Horace Whitaker, ex rel. Nathan H. Garretson, v. Southern Pacific Railroad Company, decided by this Department in July, 1880 (2 C. L. L., 919), Whitaker was the pre-emptor, who had made proof and payment and had received a final receipt. Garretson was a bona-fide purchaser of the land from Whitaker, and held under a deed executed by him some months after he received the final certificate. Upon a hearing ordered and had subsequently to the issuing of the final certificate, it was found that Whitaker's pre-emption affidavit and pre-emption proofs were false and fraudulent, and upon such finding it was held that "Garretson's claim, so far as the Department was concerned, was defeated." It was further held, "that the doctrine of bona-fide purchaser is not applicable to one who purchases of a pre-emptor before patent; that such purchasers must abide by a disposition of the cases by your office or this Department; that they take no better title than their vendors have; and that your office and the Department had full authority to cancel pre-emption entries for invalidity and fraud.”

The case of Margaret S. Kissack, decided by this Department in September, 1880 (2 C. L. L., 421), was that of a commutation of a homestead entry. Kissack purchased the land by deed, and claimed “that patent ought to issue for her benefit as a bona-fide purchaser for a val